MEDICAL NEGLIGENCE LAW – RAAB OSMOND SPRING 2019

INTRODUCTION

RECOURSES FOR INJURED PATIENTS Complaint to health care provider/supervisor uncertain result

o If the client just wants an apology this may be the way to go (note that the health care provider giving an apology doesn’t mean they admit liability as per Apology Act)

Complaint to regulatory college may have chilling effect on relationship w/ health care provider o If the client wants some kind of policy change or regulation change this may work

Complaint to patient care quality review office (hospitals only) cannot provide any compensation just look at hospital policies and procedures to see if can prevent issues in the future o If the client just wants to make sure this doesn’t happen to another person

Start a lawsuit most difficult, longest route, and is financially risky o If the client wants compensation

BASIC STEPS OF A MALPRACTICE CLAIM 1. P must prove a duty of care was owed

o Usually owed except for v. unusual circumstances if HCP agrees to provide care and patient agrees to undergo it, you have a duty

o DOC of a physician includes a wide variety of actions attending on patient, taking a history and conducting an exam, making a diagnosis or differential, treating the patient or referring to the appropriate specialist, discussing the condition with the patient, following up if needed

2. P must prove a breach of the duty and standard of care o Usually proven by use of independent expert opinion evidence to show what the standard of a reasonable

physician is, then you show D fell below that standard o Court always determines the SOC through use of published standards of guidelines + expert evi

3. P must prove they suffered an injury and the extent of the injury suffered o The injury is often obvious but can require expert opinion evidence to prove the extent of injury o Degree of injury is the starting point for the damages calculation

4. P must prove that D’s conduct was the actual and legal cause of the injury o Often the most difficult part of a case to prove o Can be technical and scientific, but the burden of proof is only BOP – not scientific certainty

5. Determine the Extent of Damages o Demonstrating how much P should be compensated makes up 50% of a case o Like to use the word “compensation” not “award” b/c it is about getting your life back on track, not a windfall

THE PLAYING FIELD Usually the O/C is consolidated defence The Canadian Medical Protective Association (CMPA)

o Not technically an insurance program, it is a group defence fund means NO POLICY LIMITSo Mandate includes “protecting the professional integrity of physicians” this means they are okay w/ going

to trial even if would cost more, b/c focus on clearing the name of the physician o Physician “insurance” feels are up to $99k a year, but 50-100% is paid for by gov’t (taxes) o CMPA reserves are over $3 billion to fight lawsuits o NOTE the CMPA will not pay punitive damages against doctors

Government insurer for hospitals and nurses public insurance (generally no policy limits) Often medical professionals also have private insurance (will have policy limits)

PRACTICAL CONSIDERATIONS Costs both of putting a claim together and potential exposure to defence costs if you lose Obligation to warn the client contingency fee arrangements can still have real cost consequences b/c only

eliminate legal fees, not costs like expert reports Value issues is the claim worth the risk? Need to balance costs of expert reports w/ damage award Determine medical and legal merit obtain records, review records, determine issues, consider what experts could

be involved, maybe obtain preliminary opinion on whether case has merit o Case selection is v. important PML gets 1000 calls a year and takes maybe 6 new cases

Special considerations for infants have potentially the largest amount of compensation; but also have additional risks: potential loss of abilty to control litigation if court (parens patriae authority) or PGT (statutory authority) refuses permission

Proving negligence legal test means more than a mistake; expert evidence will be essential Consider whether other side has any potential defences Consider whether there are other related claims: lack of informed consent?

STEPS IN AN ACTION1. When to commence an action: limitation dates

o Adult cases 2 yrs after DOD, ultimate limitation date is 15 yrs after date of negligence o Infant cases 2 yrs after age of majority (19); practically don’t wait b/c they need care costs

2. Preliminary steps o Obtaining the medical records o Electronic records track if physician made online notes and went back and changed later

3. Examinations for discovery o NOT the time to learn about your case should know it by then o Is a clear opportunity to win the case by getting admissions that demonstrate to D lawyer they will lose

4. Expert reports (only obtained after doc discovery and XfD is complete)o Lawyer has a role in working with expert so they understand the issues and their role o Expert must be fair and reasonable but also needs to be persuasive o Exchange expert reports about 3 mo before trial o Review the other side’s reports with your experts are they right Do we need rebuttal?

5. Settlement negotiations o Ideally, settle the case

Settlements are almost always confidential and cannot be disclosed unless legally req’d Settlements are not admissions of liability, clients can be bitter but often is the best choice

o If not, settle as many issues as you can could settle just liability or just damages 6. Trial

o Never easy, esp difficult for client o Judges almost always reserve their judgment client must be prepared for this delay o If the case is lost

Cost consequences to the client can be catastrophic Cost consequences to the firm can be very significant as well

MEDICAL RECORDSTerminology Medical records general term, incl both paper and electronic records Electronic medical records (EMR) an office-based system generally belonging to 1 practitioner or clinic Electronic health records more of a compilation of sources, life-time record of a person’s health and health

history, can be available to a HCP who is authorized by law or by the patient PharmaNet record of all prescriptions dispensed for a person at every community pharmacy in BC

o Any person can request their personal profile, going back to 1995 o Also contains an audit trail of everyone who has every looked @ your profile since 1995

Who Owns Medical Records

The physician who created the record (in private practice) or hospital where patient received care HOWEVER, law is clear that a patient is entitled to receive a copy of their complete medical records (McInerney v

MacDonald, 1992 SCC) o complete records means not only notes the dr made him/herself but generally all info in the medical records

which the dr considered in administering advice or treatment (incl specialist notes she may have received) o This is subject to exceptions such as a reasonable belief it is not in patient’s best interests but exceptions are

being diminished over time requires a significant likelihood of a substantial adverse effect on patient’s physical, mental or emotional health, or harm to a third party

Fairly common for a doctor’s office to charge a fee for records

Why Keep Medical Records Physicians have a legal and ethical obligation to create a legible and comprehensive record of the medical care they

provide to their patients (CPSBC Practice Standard) Faciliates a high standard of medical care, esp in the team approach to health care Enables health care personnel to treat and care for the patient and make judgments about treatment Enables diagnoses to be made, as well as predictions about potential future problems (imp. part of duty to patient) May be used in teaching hospitals and research after the fact Required for accreditation of hospitals and for teaching hospital status Helpful in measuring workload, time taken to treat patients, demonstrating value of certain services Used in incident report and reviews by quality assurance programs

o NOTE that section 51 of the BC EA states a witness in a legal proceeding may not be asked about, and may not answer, a question concerning a proceeding before a committee, or produce any record that was used in the course of or arose out of a study, investigation, evaluation, or program carried on by a committee (but with an exception for patient records)

Legal document admissible in court or tribunals as evidence o Can be vital in refreshing memory of parties b/c trial is usually 3-5 yrs after the event o Used to reconstruct events, opinions, and knowledge of parties and to resolve conflicts in testimonyo When records are scanty, inaccurate, or incomplete, court will generally favor P’s testimony o Can also be admitted as a business record under s. 42 of the BC EA if meets the req’ts

Original entry Made contemporaneously or reasonably so Made in the usual and ordinary course of business Made by a person w/ personal knowledge of the matter being recorded Was the usual and ordinary course of business to make such a record (duty to record) No motive to misrepresent (though this usually goes to weight)

Though if it was made when proceedings were pending or if they anticipated being involved in a dispute, cannot admit under this section (s. 42(4))

o The business record exception is important b/c often many doctors and nurses take care of a patient so calling all of them would use up A LOT of court time

What to Record and How to Correct Errors There are many guidelines/standards for keeping records Generally courts do not prescribe record-keeping methods, but do comment if they are bad Courts have highlighted what NOT to record:

o Concerns about hospital’s staff, facilities or equipment should be addressed to hospital admino Conversations with insurance, attorney, risk management o Finger pointing and blame or subjective accusatory terms generally

Should correct errors OPENLY and HONESTLY o Cross out entry so is deleted but can be read if necessary o Indicate by arrow or other means where the corrected entry may be found o Record the date and time at which the correction is made o Sign and complete the correction in same way as original noteo Do not obliterate the incorrect entry in any way or tear out the page it was written on

Court Comments on Poor Record Keeping

Hewlett v Henderson, 2006 BCSC ER doctor said didn’t take records b/c events were “ingrained in his mind” plus no room on the form (didn’t get another page) court said it was patently obvious that an accurate and detailed record is a benefit to the dr so he can rely on it rather than his memory as well as patient for historical record and guide for other HCPs

Suwary v Women’s College Hospital, 2009 ONSC some records were misleading, others were simply not filled out at all, such as documentation of risk factors but still found against Ps based on evidence of invariable practice

Brito et al v Woolley et al, 2005 BCSC doctor won but court ordered the dr to pay P’s costs b/c the bad records caused the trial to be considerably longer and more complex; said that the importance of preparation and maintenance of accurate and complete records cannot be overemphasized, but of course no standard of perfection and occasional inconsistencies or omissions will be tolerated

Gemoto v Calgary Regional Health Authority, 2006 ABQB medical documentation is particularly important when treatment is done in a team approach; failure is a serious lapse in reasonable care and will disrupt continuity of care

Waap v Alberta, 2008 ABQB court can draw rebuttable inference that if nothing was charted, nothing was done; entire purpose of records is to record salient details as memory aid to allow quality of care over time

Turkington v Lai, 2007 ONSC if a dr did not write what they did and have no memory, can use invariable practice testimony, which is strong evidence the dr acted the same way on day in question

Cojocaru v BC Women’s Hospital, 2009 BCSC there is danger of relying on invariable routine evidence b/c if given too much weight, no dr would ever be found negligent; when dr makes little or no notes, and invariable practice evi conflicts w/ other evidence, court must be cautious in accepting

Steinebach v Fraser Health Authority, 2010 BCSC fine to make a late entry as long as you note when you wrote it and don’t try to pass off as contemporaneous, lateness can go to weight esp if written after complications were known to try to cover it up (as here)

CONFIDENTIALITY AND WAIVER OF CONFIDENTIALITY Duty of Confidentiality At the heart of patient-physician relationship highly personal info, risk of disclosure may have chilling effect Canadian Medical Association code of ethics (adopted by all colleges) embodies principles of confidentiality and

privacy first found in the Hippocratic Oatho 31. Protect the personal health information of your patients.o 32. Provide information reasonable in the circumstances to patients about the reasons for the collection, use

and disclosure of their personal health information.o 33. Be aware of your patient’s rights with respect to the collection, use, disclosure and access to their personal

health information; ensure that such information is recorded accurately.o 34. Avoid public discussions or comments about patients that could reasonably be seen as revealing

confidential or identifying information.o 35. Disclose your patients' personal health information to third parties only with their consent, or as provided

for by law, such as when the maintenance of confidentiality would result in a significant risk of substantial harm to others or, in the case of incompetent patients, to the patients themselves. In such cases take all reasonable steps to inform the patients that the usual requirements for confidentiality will be breached. Third parties can include insurance companies, lawyers

o 36. When acting on behalf of a third party, take reasonable steps to ensure that the patient understands the nature and extent of your responsibility to the third party. This would include independent medical examinations (both by plaintiff lawyers or defence) during a

lawsuit These experts have different obligations to patient than treating dr and must explain them

o 37. Upon a patient’s request, provide the patient or a third party with a copy of his or her medical record, unless there is a compelling reason to believe that information contained in the record will result in substantial harm to the patient or others.

Legal basis for duty of confidentiality is the fiduciary nature of the relationship (McInerney v MacDonald)o Duties arise from relationship and trust and confidence btwn a dr and patient o Includes duty for doctor to act with utmost good faith and loyalty, as well as to keep personal information

private from 3Ps

Rules of Privilege Rules of privilege are exception to general rule that all relevant, probative, and reliable evidence should go to ToF

Privilege is considered integral to the administration of justice confidentiality is not Communications btwn physician and patient are confidential but normally not privileged

o This does not affect the right of patient to bring an action for breach of confidence and professional misconduct related to duty of confidentiality

Hospital Committee Records: s. 51 of BC EA gives statutory privilege to disclosure of material prepared for or used for quality review purposes but not underlying facts (Nagase v Entwistle, 2016 BCCA)o Essentially cannot say “we discussed these facts in Committee so you cannot ask questions”: only protects

documents given to Committee for investigation, excluding original med records

Waiver of Confidentiality In BC and Alberta, the fact that a patient commences litigation alleging an injury waives, by implication, their right to

confidentiality (Swirski v Hachey, BCSC 1995; Hay v University of Alberta Hospital, ABQB 1990) o This means drs may be compelled to disclose details of history, tests, diagnosis, treatment, prognosis in court o “one cannot claim for injuries or other matters and at the same time seek to claim confidentiality or privilege

over the matter” (Swirski)o HOWEVER, this doesn’t mean P puts entire medical history at issue fine to redact chart for things not

related to the injuries claimed in the lawsuit (Swirski) This is not the case in some other provs (eg Ontario)

Swirski v Hachey [1995 BCSC] F: P was in MVA, she saw a GP and 4 neurologists | determined seizures have psych basis not neuro so not planning on calling the neurologists in the case | D applying for order to have lawyer informally interview 4 neuros and GP and have access to their reports and records | D basically wants to interview them before deciding if will call them A: vast array of undoubted authority that confidentiality is waived simply by commencing an action | cannot claim for injuries and also claim privilege | but don’t put your entire history at issue, only that which is relevant to claim | there is no Dr-patient confidentiality attaching to treating drs wrt info relevant to claims in action | starting action is waiver of confidentiality for medical matters relevant to and bearing upon matters raised | waiver also constitutes implied legal authorization to drs for release of any such info for purposes of litigation | only restriction is relevancy | D counsel can discuss matters with physicians, don’t need to apply for court approval but should give notice to P of intention to have informal discussions to make sure limits of relevancy are established | onus then on P to apply to restrict interviews | P doctors are not compelled to have such discussions, they are just like normal witnesses NOTE: In practice, P counsel are dialed into phone call btwn D counsel and HCP to make sure only relevant info discussed

Other Types of Disclosure Voluntary disclosures patient may consent, specificity is important to make sure not too much info disclosed Mandatory disclosure many statutes mandate for communicable diseases or vital statistics

o One big one is safety of a child: all adults in BC (incl HCP) have a duty if they become aware a child is or many be in danger, they must report to Ministry for Children and Families

o If a statute mandates disclosure, a failure to do so many result in liability against physician Ie failing to disclose a patient is unfit to drive and then get in accident

Public Duty Disclosure if dr knows patient could injury 3P, is there a REQUIREMENT to breach confidentiality? o CMA Code of Ethics says: 35. Disclose your patients' personal health information to third parties only with

their consent, or as provided for by law, such as when the maintenance of confidentiality would result in a significant risk of substantial harm to others or, in the case of incompetent patients, to the patients themselves. In such cases take all reasonable steps to inform the patients that the usual requirements for confidentiality will be breached.

o Not a lot of case law on this in Canada grey area Smith v Jones, 1999 SCC disclosure is allowed in situations involving an imminent risk of serious

bodily harm (but this case mostly focused on S-C priv not medical) We know it is based on a concern for public safety and must be truly exceptional circumstances Threat must be imminent and specific to an individual or identifiable group

o In the United States, Tarasoff v Regents of University of California (1976 SC CA) is key therapist knew patient could harm a 3P, court determined there was a duty to protect the intended victim, which could be discharged in several ways – reasonable steps

DUTY OF CARE

GENERAL PRINCIPLES Essential criteria in med neg action threshold b/c if not established, action fails there Usually conceded by the HCP Arises from nature of HCP relationship with patient and applies to wide range of HCPs Typically you just need a “relationship” to have a DOC; does not require physical proximity

o Includes telephone consultations If ER doc calls specialist for consult, specialist owes patient a DOC b/c is still foreseeable their negligence can cause you harm, thus proximate

o Includes specialists who never meet patient but review their test results (pathologist, radiologist) Extent of DOC is broad, it includes (Briante v Vancouver Island Health Authority, 2014 BCSC):

o Duty to assesso Duty to diagnoseo Duty to communicateo Duty to refer

Pretty much the only time a DOC will not arise is if the doctor explicitly DECLINES to provide care in legitimate circumstances where the dr was able to do so (Morrison v Hicks, 1989 BCJ)

Morrison v Hicks [1989 BCJ] F: Morrison involved in MVA, brought to hospital in spinal precautions | precautions later removed and 11 hrs later found to be paralyzed | starts lawsuit against several drs and nurses, including Dr. Bacchus | Bacchus is his family dr who happened to be at hospital and whose assistance was requested by Morrison’s mother | he declined to provide care on basis that the ER doc, Dr. Coulter, was in charge and he had other responsibilities at that time A: DOC does not include situations where the dr had declined to provide care | there was already a physician in charge (Dr. Coulter could not have declined care as the ER doc), so this was a legitimate refusal to provide care | no DOC owed from Dr. Bacchus to Morrison

SPECIAL CASESTo a Fetus If a HCP is negligent in prenatal care of delivery of a child, which results in the child suffering and injury, they may

be found liable HCP owe a duty of care to the fetus not to cause harm, with the cause of action crystallizing when the child is

born alive o If the child is not born alive (ie therapeutic abortion), there is no cause of action b/c no DOC

If the child is born alive with injuries, there is a DOC to the infant which crystallizes at birth IF a therapeutic abortion is carried out negligently such that the baby is born, but no injuries the mother has a

claim for wrongful birth (only for pain and suffering from childbirth and LOI, no costs of raising a healthy but unwanted child) but child DOES NOT have a claim for wrongful life (Roe v Dabbs, 2004 BCSC)

There is no DOC owed to a fetus that is yet to be conceived (ie prescribing meds that can cause birth defects) (Paxton v Ramji, 2008 ONCA) o However, there is still a duty to a fetus that is subsequently born alive, just not one that does not exist at the

time of the alleged negligence (Steinbach v Fraser Health, Ediger v Johnston)

During IMEs Physician’s duty in this case is limited no duty to provide medical care or treatment, and no duty to act in P’s best

interest in terms of the opinion the physician provides There is only a duty not to cause harm to patient if causes harm during assessment may be liable

Good Samaritan These involve situations where a HCP provides emergency assistance to a person at scene of accident and the care is

provided both voluntarily and gratuitously No liability for such emergency aid unless there is GROSS NEGLIGENCE (Good Samaritan Act, s. 1) Policy driven legislation aimed to encourage medical professionals to provide emergency assistance

Third Parties Fact driven analysis, v. uncertain in Canada

Landmark case is Tarasoff psychiatrist found liable for failing to warn gf after patient disclosed intention to kill her

Need compelling reasons b/c this duty will conflict with duty of confidentiality owed to patient Typically you would apply the Anns test sufficient proximity and reasonably foreseeable harm

Novel Cases Apply the Anns test (Anns v Merton London Borough Council, 1978 UKHL)

1. Is there a sufficiently proximate relationship can you connect the dots with some kind of concrete connection from patient to HCP

2. Is it reasonably foreseeable that negligence by the dr may cause harm to the other party

STANDARD OF CARE

GENERAL PRINCIPLES “Every medical practitioner must bring to his task a reasonable degree of skill and knowledge and must

exercise a reasonable degree of care. He is bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same standing, and if he holds himself out as a specialist, a higher degree of skill is required of him than of one who does not profess to be so qualified by special training and ability” (Crits v Sylvester, 1956 SCC)

Basically the test is the reasonable physician in the same field If a dr can establish he or she followed a generally accepted or standard of his or her peers, that will normally result

in a finding of NO NEGLIGENCE o This recognizes that not all HCPs practice the same, okay for there to be diff approaches

Do not have to always make the “right” clinical judgment, wrong diagnosis is not automatically evidence of breach of SOC (Wilson v Swanson)

Wilson v Swanson [1956 SCC] *leading case on SOC* F: man w/ stomach problems | diagnosed with cancer | surgeon removed his organs based on the prelim test results | he was actually wrong though – growth shown benign by testing 24 hrs later | thus took out more organ than was necessary A: no liability b/c surgeon had exercised his best judgment in the best interests of his patient | being wrong in diagnosis is not evidence of negligence – cannot judge negligence simply by a bad outcome | dr is judged on SOC of an ordinary, average specialist in the same field | do not have to be right, just have to show you exercised your judgment in a reasonable way, following a generally accepted standard of peers | all the surgeon promises patient is that he possesses skill, knowledge, and judgment of the generality of the group he belongs to and will faithfully exercise them | SOC was to rely on preliminary results, didn’t breach that even though was wrong

EXPERT EVIDENCE OF STANDARD PRACTICE The standard of care is determined by testimony given by experts in the same or related field NEED (Ter Neuzen) The ToF is not considered to have knowledge to determine SOC w/o this assistance (in the vast majority of cases)

Ter Neuzen v Korn [1995 SCC] F: P infected w/ HIV from artificial insemination, brought action | risk of contracting HIV from AI was unknown at the time and there was no available test for semen w/ HIV | expert evidence at trial said at the time, the general practices simply didn’t know about risks and could not test for them | said that they followed the general practices re screening and recruitment A: the SOC in any given situation is determined by expert evidence | courts cannot resolve scientific disputes which require expertise in technical matters | here, evidence showed that SOC was to do nothing as there was no understanding of the risk at the time | don’t care that P says could have been a better standard | D conduct must be assessed in light of other ordinary specialists | conformity w/ general practice will typically exonerate | where a common course is adopted based on the expertise of professionals, the ToF cannot simply conclude it is inherently negligent | to find that a common practice is inherently, negligent, it must be fraught with obvious risks such that anyone is capable of finding it negligent, w/out needing diagnostic or clinical expertise | courts can assess competing expert opinions and determine SOC, but not role to determine SOC w/out grounding in expert evidenceNOTE: an example of an inherently negligent standard is Andersen v Chasney (not counting sponges)

NOT A STANDARD OF PERFECTION Just because a doctor makes a mistake doesn’t mean this is “prima facie” evidence of negligence cannot place

burden on Dr to show were not negligent every time they make a mistake (Carlsen v Southerland)o “error” is not enough: depends on nature of error in relation to common practice and knowledge @ the timeo Error in law to apply “res ipsa loquitur” (the thing speaks for itself) (Fontaine v British Columbia, 1997 SCC)

The SOC is not necessarily the “safest” or “ideal” approach: depends on what was adopted as the SOC at the time of the injury (Ediger v Johnston double set up not standard at the time, only immediately available surgical backup)

Carlsen v Southerland [2006 BCCA] F: P was diagnosed with L4-L5 herniation | while performing surgery, D cut iliac artery and vein | TJ found liability on the basis that injury to vessels were “prima facie” evidence of negligence that D had to rebut A: TJ applied excessively high SOC – essentially standard of perfection | just b/c did something he was not supposed to do doesn’t automatically mean a breach | no standard of perfection | ordered new trial

IMPACTS OF THE DEGREE OF RISK The foreseeable risk of a procedure will influence the SOC higher risk, higher SOC; degree of care required is

commensurate with the potential danger to patient (Ediger v Johnston) The SOC must be one that is able to actually be responsive to the risk in question and potential harm arising from it

standard must be one that is possible to save patient from injury (Ediger)

Ediger v Johnston [2013 SCC] F: in course of labor, D decided to use mid-forceps delivery, high risk | attempted in delivery room but couldn’t do it, so abandoned | within a couple of minutes baby heart rate dropped to bradycardia | baby was eventually delivered by C-section w/ serious brain injury | D did not have a double set-up (attempt forceps and then immediately to C-section) and also did not check to make sure there was an operating room and staff available before attempting the forceps delivery A: double-set up is a safer approach but had not yet been adopted as the SOC at the time | SOC was instead having surgical backup “immediately available” | foreseeable risk of a procedure influences SOC | SOC here required him to take reasonable precautions that would have been responsive to the recognized risk of bradycardia and severe damage to baby that comes from it | D is arguing that the standard just requires ensuring anesthetist is standing by, and that even if he had met that the baby still would have been delivered too late (causation issue) | CANNOT accept that SOC b/c your SOC has to be responsive to the risk in question and potential harm arising from it | SOC required D to take reasonable precautions such that baby could have been delivered w/o injury upon occurrence of bradycardia | he did not

EFFECT OF GUIDELINES AND POLICIES Guidelines and policies produced by professional associations can inform the SOC and may be useful and cogent

evidence of SOC, but they are NOT determinative of the standard and are not proof of it This is b/c no algorithm or policy can consider all the elements of a patient’s systems, history, medications etc Guidelines exist to inform physicians, but they can have valid clinical reasons for deviating from them “to breach a recommended professional guideline does not of itself constitute a failure to meet the applicable

standard of care. As Dr. Johnston submits, guidelines are practical tools to assist practitioners in the delivery of services; they are not a substitute for a determination, on all the evidence, of the applicable standard of care.” (Ediger 2010 BCSC)

NEED TO ANTICIPATE SOC includes having a plan to respond to foreseeable emergency situations Not enough to react appropriately to a situation as it happens, must think down the road to potential future

situations and reasonable anticipate and prepare for them o Ie if you think you will need to call in another dr, must think about time it will take them to get there o Need to recognize when things are not going as expected and respond to it in advance

If you have sufficient concern you may run into a problem, you need to anticipate it and have an adequate plan of action (Crawford v Penney 2004 ONCA) o Simply responding correctly to the concern when it arises is not necessarily enough to absolve

Crawford v Penney [2004 ONCA]F: P suffered catastrophic injuries at birth when her shoulders became stuck (shoulder dystocia) | this was not a surprise b/c they knew the baby was large | baby starved of oxygen for 15 min btwn delivery of head and rest of body | the dr failed to anticipate the potential need for pediatrician, didn’t call for help until 5 min after dystocia, help didn’t arrive for a few min after that | dr argued this was result of unforeseeable emergency and that they did their best once it happened, but couldn’t have delivered baby fasterA: just b/c the dr dealt with the shoulder dystocia properly is not enough | the breach of SOC comes from fact that they failed to anticipate dystocia and have an adequate plan of action | just b/c you don’t know with certainty you will have a problem doesn’t absolve you of any planning | if you have sufficient concern you will have problems you must plan NOTE: very similar incident and principle in Skeels v Iwashkiw, 2006 ABQB

IS THE STANDARD ITSELF NEGLIGENT? Very rare that the court will find the standard practice itself to be negligent (see Ter Neuzen) You need to show that an ordinary person w/out technical knowledge would say is negligent practice This is a NARROW exception to general rule that mandates expert evidence to determine the SOC Applies only when impugned conduct does not involve a matter of technical skill and expertise, but instead pertains

to the taking of precautions in regard to something about which any ordinary, reasonable person would be competent to determine

Anderson v Chasney [1946 MBQB, 1949 MBCA] F: 5 yr old had surgery | sponges w/o strings used, even though strings available | nurses present but did not count the sponges going in and out | surgeon looked but didn’t find any left | post-surgery died of suffocation due to sponge left in A (MBQB): expert evidence was that not counting or using strings was same as other surgeons | using strings or counting was simply not done at the time | said court cannot substitute judgment for medical experts, who is the court to tell surgeons how to do their job | impossible to find negligence b/c surgeon met standard of the time | no evidence that using strings was ordinary or even good practice | dr said counting was not customary b/c not practical | dismissedA (MBCA): expert evidence is not necessary for proof of negligence in nontechnical matters or matters of which an ordinary person may be expected to have knowledge | very few of these, but clear the sponge situation here is one of them | both strings and counting sponges were available to prevent injury | surgeon was aware of methods but made the choice not to take advantage of them unnecessary risk, negligent to take it | opinions of experts are not conclusive certainly if operation is complicated and requires expert medical knowledge, ToF cannot disregard their opinions BUT that is not the case here | ordinary experience of ToF is sufficient to determine whether there was negligence here | clearly there was negligence NOTE: surprising this case even went to appeal, b/c likely damages were v. low as the child died only pain and suffering for parents and typically v. small amount of that

DEFENCES

PASSIVE DEFENCE A passive defence is simply saying P failed to prove 1 of the 4 essential criteria of a med neg action

o no DOCo no breach of SOCo the breach did not cause the injuryo the injury didn’t cause losseso there was no injury or there were no losses

other defences are considered active defences

TWO SCHOOLS OF THOUGHT Three basic principles behind this defence:

1. Provides scope for disagreement and differing views/approaches among doctors idea that they are all smart, medicine is changing, HCP are not automatons

2. Courts do not have the jurisdiction to choose btwn two schools of thought that are both medically well-founded and seem equally reasonable

3. Ultimately it is for the ToF to determine what the SOC is, while being informed by experts (often will have to assess competing expert views)

Simply b/c the defence has some expert evidence to support their theory does not automatically indicate two schools of thought (Crawford v Penney) always about weighing evidence by ToF to conclude on SOC

Fairley v Waterman [2002 BCSC] F: Ms. Fairley was pregnant w/ twins | during labour both fetal heart rates being monitored | fetal heart rates are v. important b/c basically only parameter you have | Twin A was born at 05:23 | around 06:10 Dr. W called OR to try to expedite delivery b/c concerned about FHR decelerations | Twin B born 06:20 | P alleging Dr. W breached the SOC by failing to recognize and respond to either a non-reassuring or uncertain tracing of B’s heart rate from about 04:10 until birth | defence said fetal heart rate was fine so he met SOC but in alternative, two schools of thought b/c diff drs would interpret heart rate differently Plaintiff Expert Evidence: P obstetrical expert said that based on FHR Dr. W should have intervened at 04:10 | conceded there was a diff in opinion in the interpretation of FHR and confirmed research showed there was a lack of both inter and intra-observer consistency in interpreting these tracings Defence Expert Evidence: 2 obstetrical experts + D | all 3 gave evidence the FHR does not indicate a basis for intervention under 06:10, at which point he did | Dr. W’s interpretation was correct and appropriate, and even if he was not then his judgment was w/in parameters of a reasonable school of thoughtA: all experts agree that interpreting FHR is an art, not a science, and that there will be divergence btwn physicians and even one physician over time | P expert is expressing minority view here | P have at best established that there are two schools of thought wrt the interpretation of these strips in particular | adherence to either school is an acceptable SOC and a clinical misjudgment cannot amount to breach

Brimacombe v Mathews [2001 BCCA]F: Frank breech vaginal delivery (butt first) | 12:01 delivery of buttocks | 12:12/12:13 delivery up until umbilicus (obstetrical emergency b/c cord compressed) | baby’s color was normal | 12:15/12:16 color changed to paler/mottled | 12:17/12:18 birth, baby brain damaged | alleged Dr. M should have expedited delivery after color change by wrapping baby in towel and gently applying traction by pulling | instead, Dr. M waited for next contraction, no traction or pullingExpert Evidence: P experts said was breach of SOC to fail to use traction once baby changed color when had delivered to umbilicus | D experts said as long as baby delivered w/in 4-5 min, “assisted breach delivery” (holding baby and allowing next contraction to expel, without traction or pulling) is fine and that was done here Trial: not two schools of thought traction vs assisted breech delivery is “distinction w/out a difference” | found as a fact that in this situation Dr. M shouldn’t have waited | breached SOC by failing to use traction Appeal: starting point is to assess SOC on basis of expert evidence as to accepted practice, judges do not just know what the SOC is | TJ erred in rejecting 2 schools of thought | this is a perfect example of 2 reasonably held and accepted schools | Dr. M acted w/in appropriate time frame under assisted breech delivery | traction was not required, both approaches were equally valid | the test is not whether something better or different should or could have been done, or whether result was satisfactory what matters is whether D failed to measure up to standards of profession | not negligent

Crawford v Penney [2004 ONCA] F: large baby anticipated, shoulder dystocia occurred | 21:55 the head delivered and dystocia encountered (fetal emergency at this point as no blood flow) | 22:00 Dr. Penney called for help | 22:04 Dr. Healey arrived | birth occurred at 22:10 so there was 15 min of oxygen deprivation Expert Evidence: D experts said that they met the standard of care, P said that they did not (didn’t have a plan) Trial: TJ found negligence || D are arguing that b/c there was expert evidence led that said they acted in accordance with accepted practice, TJ was compelled to accept it and find against negligence and he had not: palpable and overriding errorAppeal: expert evidence is subject to same process of being weighed and assessed against all other evidence just like lay witness evidence is | TJ role is to evaluate conflicting testimony, incl experts, and find facts | expert evidence is then weighed in accordance w/ facts and in accordance w/ the reliability of the opinion evidence | ultimately, appropriate SOC is up to ToF | there is no necessitated dismissal of a claim simply b/c honest and competent experts disagree over a diagnosis or treatment | ToF can weigh conflicting testimony and ultimately assess weight to be given | in many cases, TJ will prefer evidence of one expert over another, rather than accepting both sides evidence as reflective of equally reasonable but different SOC | TJ decision upheld

CLINICAL JUDGMENT The law relating to clinical judgment is that a physician cannot be held liable for mere error in judgment, as

distinguished from professional fault an error in judgment does not amount to negligence IF the physician appropriately exercised clinical judgment (Wilson v Swanson)

The important question is not whether they exercised clinical judgment (not enough alone), but whether they APPROPRIATELY exercised clinical judgment (Crawford v Penney)o To properly exercise clinical judgment, physician MUST weigh, assess, and evaluate information as may be

available, which includes results of tests or consults that should have been carried out requires the information to be as complete as is reasonably available and possible in the circumstances Exercising judgment w/o informing yourself of the available and relevant info is a breach of SOC Must order tests, look at results, collect accurate history and conduct physical exam But of course “reasonably possible” means cannot expect every test for every person

o A matter can involve judgment, that doesn’t mean the court cannot examine the grounds upon which the judgment is exercised

Just because an action taken or not taken fell within the realm of clinical judgment does not mandate a dismissal of the action must also ask whether dr obtained and considered all clinically relevant info (Williams v Bowler)

Williams v Bowler [2005 ONSC] F: Ms. W has long standing headaches and abdominal pain, also has anxiety and drug abuse history | she had multiple visits for multiple complaints and asked for pain control meds | she lived in a small town so ER staffed with GPs | March 16 visited Dr. B complaining of headaches after hit her head in a bar brawl | March 19-21 repeated visits w/ more severe headaches and other symptoms | March 22 admitted for migraine and dehydration | March 25 demands they “knock her out” | lumbar puncture performed which showed red blood cells that gave a number of options viral meningitis (cannot treat, will resolve), subarachnoid hemorrhage (no treatment, will resolve) or 30% chance of life threatening aneurysm | she was not referred to a neurologist (if she had been, appropriate investigations would have revealed aneurysm and would have been treated with surgery) | March 31 she was discharged with dx of meningitis and subarachnoid hemorrhage | April 19 her brain aneurysm ruptured and she was left w/ permanent brain injury DEFENCE: made an error in clinical judgment in not making referral, but in the context of Ms. W’s complicated history, he exercised his judgment reasonably | he did his best, not going to get it right every timeA: merely describing something as an error in judgment tells us nothing about whether it is negligence or not | need to look at whether clinical judgment was appropriately exercised | if a dr exercises judgment but did so in circumstances where they failed to obtain and consider all the clinically relevant info, that will be negligence | here, there were 3 things on the differential and he assumed it was one of the first two, failed to consider other possibility and conduct tests to rule it out/refer to rule it out | breached SOC

EXPERT EVIDENCE

GENERAL PRINCIPLES Expert evidence is necessary in most cases to establish SOC (ter Neuzen) as well as causation and quantification of

damages/loss Cannot succeed if you do not have the right experts

IDENTIFYING APPROPRIATE EXPERTS Look for unbiased experts

o Ideal would be experts who have been retained in the past by both P and D counselo Want to avoid “hired guns”o Want them to be open and willing to act for either side, and that they would say the same thing regardless of

who hired them Consider authors of relevant guidelines/literature

o Must ALSO have clinical experience if they are commenting on SOC o Academics are generally okay for pure issues of causation (Pinch v Morwood)

Expert must have been practicing at the relevant time b/c standards constantly evolve (only for SOC)o This does not apply to causation issues b/c that is purely about medical knowledge

Be cautious with experts from diff jurisdictions wrt SOC esp SOC in the USA is different b/c of the very different health care environment, societies, committees, etc

Should match specialty (though also see Pinch in a team environment, some HCP may understand what the obligations of other HCP are)

Try to match locality, but the locality rule has been significantly diluted (Lush v Connell 2012 BCCA)o Used to be v. important whether you were dealing with big city vs rural town, but now all doctors are being

trained at the same places and accessing the same resources for training o Geographical location does not dictate SOC o HOWEVER, available facilities and resources are relevant and locality can impact this

So is still helpful to get an expert who is used to working in a similar environment with similar resources if possible

There can be cross-over in specialties, particular in team settings (Pinch v Morwood)o The test for qualification is not habitual familiarity it is just whether the expert’s knowledge, skill or

experience is sufficiently reliable to be of assistance to the ToF (Pinch)o Deficiencies like diff specialty, being over qualified, having diff experience go to weight only (Pinch)

Pinch v Morwood [2016 BCSC] **leading case on which experts can speak to whose care**F: pregnant woman attended emerg in Powell River (small rural hospital) at 5am w/ neck pain | issue turned on whether ER nurse took her BP | v. important to take BP if has pre-eclampsia b/c if has high BP, would go to testing and possibly give a C-section, missing it places mom’s life at risk | note that headache is usual symptom for pre-eclampsia) she was discharged with diagnosis from Dr. Morwood of a neck strain, a book of stretches and recommendation for massage | 2 days later found having eclamptic seizures, undergoes emergency C-section and baby is born w/ brain injury A: test for admissibility is Mohan factors: necessity, relevancy, no exclusionary rules, properly qualified | Dr. Duplessis, the obgyn who would have been called if a specialist was needed, is familiar w/ what would be expected of a ER practitioner in the department so his opinion on SOC has probative value | test is not “habitual familiarity” | Dr. Feinstadt can also give opinion as to SOC of a nurse as he has worked in rural emergency rooms and trained rural nurses | team-based approach gives both of them sufficient familiarity to be allowed to give opinion evidence | deficiencies (diff speciality, over qualified, diff experience) go to weight, not admissibility | just need expertise that would help ToF

SUPREME COURT CIVIL RULES: RULE 11-2 and 11-6Rule 11-2Duty of expert witness(1)In giving an opinion to the court, an expert appointed under this Part by one or more parties or by the court has a duty to assist the court and is not to be an advocate for any party.

Advice and certification(2)If an expert is appointed under this Part by one or more parties or by the court, the expert must, in any report he or she prepares under this Part, certify that he or she

(a) is aware of the duty referred to in subrule (1),(b) has made the report in conformity with that duty, and(c) will, if called on to give oral or written testimony, give that testimony in conformity with that duty.

Rule 11-6Requirements for report(1)An expert's report that is to be tendered as evidence at the trial must be signed by the expert, must include the certification required under Rule 11-2 (2) and must set out the following:

(a) the expert's name, address and area of expertise;(b) the expert's qualifications and employment and educational experience in his or her area of expertise;(c) the instructions provided to the expert in relation to the proceeding;(d) the nature of the opinion being sought and the issues in the proceeding to which the opinion relates;(e) the expert's opinion respecting those issues;(f) the expert's reasons for his or her opinion, including

(i) a description of the factual assumptions on which the opinion is based, (ii) a description of any research conducted by the expert that led him or her to form the opinion, and(iii) a list of every document, if any, relied on by the expert in forming the opinion.

Proof of qualifications(2)The assertion of qualifications of an expert is evidence of them.

ROLE OF EXPERTSNot a Fact Finder Experts are not there to decide “what happened” Experts play important role in identifying what key facts are critical to assessing the SOC But if there is conflicting evidence, that is not for the expert to resolve EXCLUSIVE role of the ToF to make

findings of fact (Emil Anderson Construction Co. v. British Columbia Railway Co.. 1987 BCSC) Especially important when comes to findings of fact that involve assessing credibility

o A judge or jury who simply accepts an expert’s opinion on credibility of witness is completely abandoning their job to do so (R v Marquard 1993 SCC)

Factual Assumptions An expert’s opinion is only as strong as the facts on which it is based Want to give a list of underlying facts to your experts that you will be able to prove at trial

o Should work w/ expert to make sure all the relevant info is included b/c you know what you need to prove legal things but they might know what is important in a medical sense

If key facts upon which the expert relies are not proven in trial, their opinion will receive less (or no) weight It is critical that all facts upon which they rely are set out in the report (not “the medical records”) If a court cannot ascertain the facts upon which the expert based his/her opinion, the entire report may be ruled

inadmissible: must be clearly set out (Sebastian v Neufeld, 1995 BCSC) Factual assumptions should be prepared by counsel, not the expert Should include ALL relevant facts, both good and bad but not irrelevant ones! You may wish to consider alternative fact scenarios and have the expert opine on both, just in case you are unable to

prove a fact at trial

RELATIONSHIP WITH OTHER EVIDENCEExamination for Discovery Transcripts

Whether or not you provide these to your expert is largely a tactical decision in each case o They can be difficult b/c not admissible in court, have to read them in while witness testifies

Often there is important info the expert needs that is not documented in chart this includes facts arising from the D’s standard practice or memory

When asking an expert to common on SOC, only fair the expert get to hear D’s side of story, including their thought process and all factors taken into consideration (Cleugh v Fleige-Zahradka, 2001 BCSC)

The best approach is to include any critical facts from discovery evidence in the factual assumptions, and ensure you read that evidence in or elicit it in cross exam (WRP v Plint, 2000 BCSC; Beneck v Pugash, 2004 BCSC)o Since you may not know what is important, can get expert to read the XfD and tell you if they thought

anything was important – specific facts only

Facts from Medical Records Medical records are exception to hearsay rule Facts in records can be admitted as prima facie evidence of the truth of those facts as long as they meet the

requirements (records made contemporaneously by someone w/ personal knowledge who was under a duty to make them) (Ares v Venner, 1970 SCC)

NOTE you cannot use these records for opinion evidence though a chart saying “the heart attack was caused by X” doesn’t mean X actually caused it, only admissible for evidence that the doctor was proceeding under that understanding at the relevant time

COUNSEL’S ROLE Concerns about “hired guns” who will write reports saying anything for the right payment came in light in the

Vancouver College case (engineer who changed opinion completely after lawyer asked) The requirement to release the full file prior to trial in the Rules has helped with this but has not eliminated the

problem entirely It is not only appropriate but is necessary for counsel to engage in discussion w/ expert (Moore v Getahun, 2015

ONCA) Counsel can have input in a number of areas

o To ensure the technical requirements of an expert report in Rule 11-6 are met o Suggest corrections to grammatical or typographical errors o To ensure the factual assumptions contained in the report are clearly set out, and include only those factual

assumptions which the lawyer will be able to prove @ trial o To ensure the report does not set out unnecessary and irrelevant factual assumptions o To ensure the report has fully addressed issues identified by counsel (Hennessy v Rothman 1988 BCSC)

Make sure the opinion sought is matter of science, not ordinary knowledge Make sure the opinion is directly material to the issues in the action

BUT THE FINAL OPINION OF THE EXPERT MUST BE THAT OF THE EXPERT ALONE

CAUSATION

GENERAL PRINCIPLES Actual vs Legal Cause The actual cause is the cause in fact the medical or factual explanation for the injury The legal cause is the proximate or foreseeable cause policy driven to limit liability, not really applicable to

medical negligence context aside from indirect nervous shock cases (how far down line of hearing of event we go)

The Basics Onus of proof is on the P, burden of proof is balance of probabilities

o NOT scientific certainty Do NOT need studies or data, but they can be used to help your theory (be wary)(Goodman v Viljeon)

o The robust and pragmatic approach allows you to draw an inference of causation without direct, positive evidence (Snell, Ediger) allowed if D has not introduced sufficient evidence to rebut P’s evidence (Ediger)

Test for causation is the “but for” test D’s negligence must be necessary for the injury to have occurred (Ediger)o However, you could use other non-causal breaches to try to show a pattern of laziness or mistakes

D’s negligence does not have to be sole cause just a contributing cause outside the de minimus range (Athey)o Note that if there are multiple tortious causes, apportioned (blameworthiness) = joint and several liability

Proving causation on the basis of “material contribution to risk” is very limited policy driven area of law, not a factual finding of causation, that applies in limited circumstances only involving multiple tortfeasors (Clements)

“material contribution to injury” is simply part of the but for test

LOSS OF CHANCE Claims arise where the effect of D’s negligence is to deprive P of a chance of avoiding the ultimate injury, but this

chance was below 50% o Late diagnosis of cancer when timely treatment would have offered a 40% chance of survival o Thrombotic stroke that should have been treated with a TPA – but TPA only 15% success rate

In these situations, you cannot prove “more likely than not” the injury/loss would have been avoided but for the Ds negligence because you had a less than 50% chance without the negligence (De la Giroday v Bough)

There may be some scope for a loss of chance doctrine in contract law instead b/c that is actionable per se, o You would need a contract btwn the patient and doctor with some kind of consideration flowing perhaps

there would be scope if there was payment for services (plastic surgery) However, this has never been argued b/c usually damages would be too low for the case to be worth it

ROBUST AND PRAGMATIC APPROACHSnell v Farrell [1990 SCC] F: defendant ophthalmologist performed surgery on P to remove cataract | after injecting anesthetic, he noticed a small bleed | he waited 30 min but then proceeded w/ operation | after her recovery, discovered that P has lost vision in that eye | cause of loss of vision is found to be that her optic nerve had atrophied | neither expert knew the cause with certainty or when that had occurred | one possible cause was reduced blood supply to the nerve Judicial History: TJ said P had prima facie proved D actions caused injury and this shifted onus to him, he didn’t meet onus to prove didn’t | CA upheld this decision Law: both previous levels of court relied on McGhee v National Coal Board, in shifting the onus to disprove causation to D | McGee worked in a factory, failed statutory obligation to provide washing facilities | he had to ride his bike home every day covered in dust and got dermatitis | he won b/c shifted burden to D to prove the ride home did not cause the dermatitis once he had established they created the risk and his injury was in that scope of risk A: it was a breach of SOC to continue with operation | uphold decision but for diff reasons | burden remains with P to prove “but for” test, no switch | however, “but for” test should have a less rigid, more pragmatic approach | NO NEED for scientific certainty or precision | if the facts lie particularly within knowledge of D, very little affirmative evidence from P will justify drawing inference of causation in absence of evidence to contrary | if some evidence to contrary is adduced, TJ weighs all evidence according to power each side had to produce it, and the power of each side to contradict it (aka Lord Mansfield’s precept) | robust and pragmatic approach to causation APPLI: was open to TJ to draw inference that the injury was caused by retrobulbar bleeding and there was no evidence to rebut this inference | was open to TJ to find causation even though neither expert found causation w/ scientific certaintyNOTE: courts in BC were confused whether TJ could draw inference if D brought ANY evidence clarified in Ediger Ediger v Johnston [2013 SCC]

F: defendant tried to perform mid-forceps procedure w/out backup | following his attempt, the fetal heart rate dropped but it took a few minutes | defence argued the drop was caused by non-tortious causes just kink in the cord and timing after forceps attempt was coincidence, would have happened immediately if caused by that | P argued cause was application of forceps blade causing cord to slip, which then compressed at the next contraction TJ: accepted P’s theory of causation and P was successfulCA: court cannot draw inference of causation if defence leads any evidence to contrary | did lead evidence here that compression just happened due to a kink | inference from Snell was not available to be drawn | judge just had to determine whether, on BOP, attempted forceps delivery was cause of cord compression | overturned A: Snell stands for proposition that P in med mal case assumes burden of proving causation on BOP | this does not require scientific certainty | ToF may, upon weighing evidence, draw inference against D who has not introduced sufficient evidence contrary to P’s theory of causation | in determining whether sufficient evidence has been adduced, ToF should take into account relative position of each party to adduce evidence APPLI: even though there were other ways for cord to get compressed, was job of TJ to weigh evidence and determine whether causation was shown on BOP | was open to TJ to accept testimony on the P’s theory rather than D’s testimony

MATERIAL CONTRIBUTION TO INJURY & MULTIPLE CAUSESAthey v Leonati [1996 SCC] F: P had history of back problems | had 2 MVAs (tortious causes) | later suffered disc herniation from light stretching he was doing at advice of doctor JH: TJ MA not sole cause of herniation but played causative role, gets 25% of global damages | CA upheld trial decision A: reaffirmed “but for” and robust and pragmatic approach | to meet “but for”, it is sufficient to show D’s negligence “materially contributed” to the occurrence of injury | an contributing factor is material if it falls outside the de minimus range | it is not now necessary, nor has it ever been for P to establish that D’s negligence was the sole cause of the injury | there will often be a number of background events that are also necessary preconditions to injury | as long as the D acts are part of the cause of the injury, they are liable for the ENTIRE non-divisible injury despite other non-tortious causes | P gets 100% of damages

MATERIAL CONTRIBUTION TO RISKResurfice v Hanke [2007 SCC] F: P was operator of ice-resurfacing machine | badly injured when hot water overfilled the gas tank of a machine | alleged negligence b/c the gas and water tanks were right next to each other on the machine and hard to distinguish btwn the two (poor design) and that is why he poured the water wrong and injured himself JH: TJ said he failed to prove that but for the poor design, injury would not have occurred maybe he would have messed up and poured wrong either way | CA allowed appeal, saying TJ failed to apply “material contribution to risk” test given that there was more than one potential cause of injury, surely the design flaw contributed to the risk that someone would mistake the two openings A: “material contribution to risk” test is a valid exception to traditional “but for” but only in limited circumstances | 1) must be impossible, due to factors outside P’s control, to prove “but for” causation | 2) it must be clear that D breached a DOC owed, thus exposing P to unreasonable risk of injury, and the injury to P must fall w/in the ambit of the risk created by D’s breach

Clements v Clements [2012 SCC] *further limited MCTR* F: D was driving motorcycle in wet weather w/ his wife (P) riding with him | motorcycle was 100lbs overloaded | unknown to driver, nail had punctured rear tire | he was speeding in order to pass a car and the nail fell out, rear tire deflated, and they crashed | P suffered brain injury JH: TJ said “but for” test could not be established due to limits on science (accident reconstruction not possible) apply material contribution to risk and P succeeded | CA overturned, saying “material contribution to risk” did not apply and the “but for” test had not been met A: reaffirm “but for” and robust and pragmatic approach such that scientific precision is not needed | inference of causation can be made, but D can of course call evidence to contrary | EXCEPTIONALLY, P may recover on basis of “material contribution to risk” w/o showing factual “but for” causation | MCTR is a policy driven rule of law designed to allow recovery where factual but for causation cannot be established, allows courts to jump evidentiary gap | MCTR applies ONLY where: 1) P is able to prove breach of SOC against multiple D; 2) proof of causation against any individual in that group is impossible b/c they can point to all other individuals, preventing proof of causation on BOP; 3) inability of P to point to any individual is not due to any fault of their own | new trial ordered

Cook v Lewis example of valid “material contribution to injury” situation two hunters fire rifle at same time, impossible to prove which bullet hit P but both of them breached SOC in firing as they did | SCC found both liable

CONSENT

RIGHT TO REFUSE TREATMENT A mentally competent person has the right to refuse treatment, regardless of the consequences of that decision Right to refuse is fundamental to person’s dignity, autonomy, and right to self-determination: falls w/in s. 7 of the

Charter (life, liberty and security of person) Canadian Medical Association Code of Ethics codifies the right of a competent patient to accept or reject any

recommended medical care Treatment without any consent is battery Withholding treatment where that is the request is not negligence however, dr has duty to inform patient of risks

of not having proposed treatment, if possible

Malette v Shulman [1990 ONCA]F: Ms. Malette is unconscious in the ER after an MVA |Dr. Shulman says she will die if does not get blood transfusions | nurses find a signed but undated card indicating she is JW (no blood products) | this is later confirmed by family members | Dr. Shulman gives the transfusions anyway A: giving the transfusions constituted battery even though it saved her life | uphold TJ’s award of $20k for general pain and suffering (mental distress) | Dr did not have an improper motive just dealing with the MVA issue, no punitive damages | no expert opinions on her psychological state necessary: seem legitimate from her perspective and testimony that she felt violated

FORMS OF CONSENT1. Express Consent

o No legal requirement the consent be in written form o Written consent often obtained, but often given little weight by courts: signed consent form is NOT

determinative b/c often not detailed enough or responsive to specific concerns of P 2. Implied Consent

o Court reaches a conclusion on the P’s state of mind based on circumstantial evidence like their behavior o Court can conclude a patient did in fact consent based on this o Example: making dentist appt, sitting in chair, opening mouth implied consent to clean teeth

3. Presumed Consent o Reasonable belief that the patient consented (even if they actually did not)o Can overlap with implied consent

WITHDRAWING CONSENT Consent can be withdrawn even after a procedure has started If treatment continues after consent has clearly been withdrawn may have a successful battery claim If there is any question that the patient is withdrawing consent the Dr must stop and determine whether it has

actually been withdrawn o “please stop, I can’t take it anymore” during colonoscopy battery and negligence not to stopo “For God’s Sake, stop” when injection being done to relieve pain court found not clear whether to saying

stop the pain or stop the procedure, P lost the case

EMERGENCY EXCEPTION If informed consent cannot be obtained a doctor can be justified in treating without consent in emergency situations

but there are exceptions o If there is a proxy available to speak to, must confer to determine what wishes might beo Must take some steps to determine if there is an advance directive or living will, what steps depends on the

context of how emergent the situation is Basis for the exception can be seen as necessity that justifies the preservation of health of patient

o In emergency, dr is privileged by reason of necessity in giving the aid and not to be held liable for doing so; law sets aside requirement of consent on the assumption that P, as reasonable person, would want emergency aid rendered if they could give instructions (Malette v Shulman)

Must actually be necessary and not a matter of convenience (gangrenous testicle vs tying tubes during C-section)ELEMENTS OF CONSENT

Voluntariness Coercion and undue influence will vitiate consent such as family members coercing patient

o Court will consider whether dr could have reasonably noticed this Physician’s undue influence will also vitiate consent

o Norberg v Wynrib [1992 SCC] giving narcotics in exchange for sex; court found both batter and breach of fiduciary duty

o If physician wanted to enroll patient in a study where they get a benefit would need to prove there was power imbalance that was exploited for benefit of dr

Deliberate misrepresentation will also negate consent o Placebo therapies (unless dr tells is placebo of course) o Surgery cases misrepresentation would have to be about the nature of procedure specifically, not just the

result (don’t guarantee results) Lokay v Kilor saying “will leave you with abdomen of 16 year old” did not vitiate b/c that was about

the result, not the very nature of the procedure Innocent misrepresentations will not vitiate consent

o Kita v Braig [1992 BCCA] Kita has sinus problem, consented to surgery | wife asked surgeon if he had done it before and he said yes | turned out had only done 3 times and as resident so supervised | found was an honest error so still valid consent

Capacity Adults with a disability must have capacity (brain injured, psych conditions, elderly, comas)

o Fact that a patient refuses treatment that others recommend does not indicate incapacity o Focusing on “unreasonableness” of decision undermines right to medical self-determination o One exception is if you consent to something and get put on waiting list, this is valid consent for the procedure

even if you do not have capacity when you reach the top of the list Children in BC there is no age cut off

o HCP must be satisfied that both: Minor understands nature, consequences and reasonably foreseeable benefits and risks Treatment is in the minor’s best interests

o If a minor has capacity, a parent cannot override it

Refers to Both Treatment Given and Provider Treatment: if a patient consents to one method or technique the dr is not free to use another unless an emergency

arises o This only is relevant if the patient specifies the method to be used o Johnston v Boyd, 1996 BCCA only consented to clips being used for sterilization, dr cauterized instead (not

reversible) | found battery b/c not emergent and only consented to clips Provider patient is entitled to know who the main provider in an operation will be, but not the secondary

providers do not get to pick everyone

BATTERY VS NEGLIGENCE VS LACK OF INFORMED CONSENT

Battery Intentional infliction of harmful or offensive contact

“unprivileged and unconsented to invasion of one’s bodily security” (Reibl v Hughes, 1980 SCC) Advantages to pleading in battery

o Medical experts are not required, don’t need to establish SOC b/c does not matter if exercised reasonable care o Physician liable for consequences foreseeable or not, even if no fault of the physician and no causal link,

don’t need any evidence of causation at all o Can be liable even if there is no physical injury or treatment was actually beneficial (Malette)

Punitive damages are possible (Norberg v Wynrib) However, battery cases are VERY RARE in medical malpractice P must prove:

o D owed DOCo D carried out procedure to which P did not consent o NO NEED to prove injury or causation

Negligence P must prove the classic 4 elements: DOC, breach of SOC, P suffered injury, D’s conduct was cause of injury

Lack of Informed Consent P must prove DOC P must prove defendant breached the standard of disclosure (modified objective test: what a reasonable patient in

circumstances of P would want to know, both the procedure and potential injury but also consequences) P must prove that BUT FOR the failure to obtain informed consent, a reasonable person in their position would not

have gone ahead with the procedure The procedure/treatment/ surgery caused the P injury

INFORMED CONSENTReibl v Hughes [1980 SCC] *leading case* F: P had a headache when he bent over | surgeon said at risk of future stroke, but would be 3-5 yrs away if it happens at all | had elective surgery for removal of occlusion in carotid artery (thought would eliminate headaches but did not) | surgery competently performed but P suffers a massive stroke and is paralyzed | he was never told that a stroke was a risk or even what a stroke really meant | he was within 18 months of his 10 year service at work, when he would have gotten a pension and qualified for disability benefits | he testified at his XfD that he didn’t even know what a stroke was, but that if he had to choose a short life as a normal person or rest of life as a cripple would have chosen short life as normal person A: not liable in battery lack of proper information about the risks cannot be said as vitiating consent | however, still liable for lack of informed consent (negligence) | a reasonable person in P’s position would have opted against the surgery rather than having it at that time | this was because of the grave risk of stroke during surgery, vs risk of stroke without being at least 3 yrs away; fact that he was 18 mo from pension and benefits; that he was under mistaken impression it would fix the headaches

Why is There a Doctrine of Informed Consent? gives meaning to patient’s right to self-determination in medical context

o physician is in the superior position wrt knowledge but should not be wrt decision making o patients are not passive recipients of medical care: they have rights o self-determination is meaningless unless patient is given enough info to make informed choice

“developed as a judicial attempt to redress the inequality of information that characterizes the doctor-patient relationship” (Hollis v Dow Corning Corp, 1995 SCC)

Scope of Disclosure There is a duty of HCP to answer any specific questions posed by patient, disclose all material risks, disclose all

special or unusual risks, explain the frequency or likelihood of the risk materializing, and explain the consequences of the injury should it occur (Reibl v Hughes, Hopp v Lepp)

Material risks something that a reasonable patient, in the circumstances of the plaintiff, would want to know o Can be statistically remove but with serious consequences o Something that is statistically remote but not especially serious will likely not be a material risk (dry eyes)

Common risks associated with all surgery (infection, bleeding, pain) do not need to be disclosed BUTo What is a common risk is to be assessed by asking what a reasonable person in P’s circumstances would

understand to be the common, ordinary risks involved in the procedure o In practice doctors still mention these risks b/c it would be foolish not to

In elective (anything not essential and life-saving) procedures, the scope of disclosure is greater o Must bring patient’s attention to the fact the procedure is elective: not essential to have it o Videto v Kennedy [1981 ONSC] frequency of the risk becomes less material (aka even remote risks should

have to be mentioned) when the operation is unnecessary for medical welfare Likelihood and Consequences of the Risk not enough to simply tell patient about procedure and injury, need

to also explain the frequency or likelihood of the risk materializing AND the consequences should it occur o Matuzich v Lieberman 2011 ABQB dr told patient risk of bowel or blood vessel injury, but didn’t explain

that could be life threatening and could necessitate immediate major surgery, leaving a large scar o Reibl v Hughes Reibl only understood he would be better off with surgery, didn’t understand what a stroke

really meant and how it could affect the rest of his lifeo Cojacaru v BC Women’s Hospital, 2009 BCSC patient was advised there was a 1 in 200 chance of uterine

rupture, but was not explained the medical significance for her baby: should have explained this meant the baby would be floating in abdomen, without oxygen, which means they will need care for the rest of their life

Other Material Information a patient may find things other than risk disclosure to be material: dr must discloseo The patient’s diagnosis o The prognosis of the diagnosis with and without treatment o The risks associated with the proposed treatment o The alternatives to the proposed treatment, and the advantages and disadvantages of alternatives

Some alternatives will be so lacking in benefit as to not require disclosure Talking about alternatives is esp important if there is a less risky, more conservative alternative Not supposed to distort or show bias to one of the alternatives Courts use “reasonable doctor” test to determine if should have even had knowledge of alternative

Specific Questions by Patient o Doctor is required to answer any specific Qs posed by patient as to risks involved in procedure o Questions from patient are flags for dr about what is important to patient and can affect scope of disclosure

AND the causation analysis o It is possible that a question changes what is material b/c what matters is what is material to the patient

Cannot allow only expert medical evidence to determine what risks are material – not a question to be determined on basis of expert medical evidence alone, needs more patient-centric approach (Reibl)

Patient’s Comprehension The doctor must be able to show that the patient comprehended the explanation and/or instructions given

required to take “reasonable steps” to ensure the patient understands the info What are reasonable steps will depend on the facts of the case

o Might be language difficulties requiring an interpreter o Might need to ask patient Q to ensure they understando If pamphlets or videos used there is higher burden to ensure patient understood cannot be too technical

Do not discharge duty to ensure comprehension just b/c the info is written down

Proof of Disclosure Ultimately is a question of reliability and credibility to be decided by the ToF Can be hard for dr to remember what they said to one patient a long time ago evidence of invariable practice can

be admissible and given weight in context of other evidence (ie if they varied from practice once, maybe did twice) Easier for patient b/c this is often only time had procedure so might have good memory of discussion Signed written consent, without more, carries little evidentiary weight not responsive to specific concerns

CAUSATION IN LACK OF INFORMED CONSENT CASESModified Objective Test Answering the “but for a lack of informed consent” question requires a hypothetical

o If had been given required info, what would a reasonable person in the patient’s position have done? (Reibl)

Do not use the actual patient b/c they obviously will be biased and bitter, in hindsight of course they would say they wouldn’t have done it

But cannot be too objective: just the reasonable person informed of their risks puts a higher premium on the surgeon’s assessment fo the need for surgery, essentially nobody would “reasonably” refuse a surgery they were being recommended (Reibl)

How much of the plaintiff to include? (Arndt v Smith)o Objectively ascertainable circumstances should be considered age, income, marital statuso Special concerns affecting the particular patient

HOWEVER, a Dr does not have to ask if patient has any special concerns that the ordinary reasonable patient would not have: if P has such concerns their duty to bring it up

o Specific questions asked of the physician by the patient o Essentially, the “reasonable person” possesses the patient’s reasonable beliefs, fears, desires and expectations

Patient’s subjective concerns must be reasonably based (otherwise too objective) (Reibl)

Arndt v Smith [1997 SCC] F: A sued physician for costs associated with raising her daughter who was congenitally injured by chicken pox | she says S failed to properly advise of risk of injury to fetus | says if she was advised, would have terminated pregnancy L (Reibl):, court found that a subjective test had a “gross defect” in the form of hindsight and bitterness, but that a purely objective test would have the potential of never establishing causation just b/c the surgeon recommended surgery, puts too much of a premium on the surgeon’s assessment | opted for modified objective test of the reasonable person in the patient’s particular position A: Reibl is still correct: the test looks at both objective and subjective factors to determine whether the failure to disclose actually caused harm | question is what the reasonable patient in the circumstances of the plaintiff would have done if faced w/ same situation | ToF must consider particular concerns of patient and special considerations affecting them | the reasonable person must be taken to possess the patient’s reasonable beliefs, fears, desires and expectations | these will usually be revealed by the questions they ask | particular concerns must be reasonably based ie fears that are not related to material risks (idiosyncratic) would not be considered | modified objective test eliminates honestly held but idiosyncratic and unreasonable or irrational beliefs of patients (vs subjective)APPLI: a reasonable person in P’s position would not have decided to terminate pregnancy in face of v. small risk to fetus by exposure to chicken pox virus | she made a general inquiry but the risk was v. small so in the absence of specific and clearly expressed concern, nothing to indicate to dr she had a particular concern about giving birth to disabled child | she wanted children and was suspicious of mainstream medical profession as well | failure to disclose risks didn’t affect her decision to continue pregnancy and thus did not cause the financial losses

VICARIOUS LIABILITY, CONTRIBUTORY NEGLIGENCE & FAILURE TO MITIGATE

VICARIOUS LIABILITYBasics Employers are vicariously liable for torts committed by their employees in course of employment This exists for policy reasons

o If you offer risky services you are responsible if the risks emerge o Employer is likely more able to pay or insure against injury o Employer will benefit from accident prevention programs (run a safe workplace)o Employer is responsible for hiring and training suitable employees

Does not mean the act or fault of wrongdoer is attributed to the employer only the victim’s remedy which is attributed, aka the liability (no blameworthiness involved) (Bluebird Cabs v Guardian Insurance Co of Canada)

Pretty flexible test any work done “in the course of employment” o Can be liable even for an unauthorized mode of performing an authorized task o But employer is not liable if employee engages in independent task of his or her own, usually something

outside their scope of practice employee on a “frolic of their own” Legal test:

o Was the relationship one of employer-employee; ando Was the employee acting w/in the course of employment

Direct Liability vs Vicarious Liability Both may involve liability for the torts of another Direct liability involves the physician or hospital being PERSONALLY responsible for the tort of another failure to

adequately train or supervise employees Vicarious liability does not matter if the employer is at fault automatically liable if the tort occurred during the

course of employment

Joint Tortfeasors Vicarious liability renders parties joint tortfeasors P may sue both parties but in reality the damages are collected from the employer Employer has right to be indemnified by employee, but this is rarely sought (and sometimes employer’s insurance

policy does not permit indemnification) o Who would want to work in a hospital that provides no protection and goes after you for indemnification?

Specific Health Care Providers1. Doctors

o Vicarious liability Office staff if they provide advice such that a reasonable patient would rely on and they are injured,

the doctor could be found vicariously liable Nurses if hired to work in doctor’s clinic, can be liable

NOT liable for nurses who work in a hospital beside them b/c not employer relationship Nurses functioning in a nurse practitioner role may be independent contractors, but most are not

o Physicians can also be directly liable for failing to supervise and instruct their staff properly2. Hospitals

o Direct Liability (Hospitals are a legal corporate entity and can be sued directly) Must prove the same elements as in action against physician Examples of duty to patient could include:

Duty to select competent staff and monitor their continued competence Provide proper instruction and supervision Ensure staff working within their competence Provide proper facilities and equipment Establish systems necessary for safe operation of the hospital

May not need expert opinion to prove breach of SOC could be in the exception for non-technical matters that are within knowledge of jury (Goodwin v Olupona, 2013 ONCA)

o Vicarious Liability Hospital is liable for torts of employee committed within scope of employment NOT liable for torts committed by independent contractor that excludes MOST DOCTORS

Exceptions doctors who are employed as house staff (residents or interns) may still be subject to vicarious liability; potentially anaesthesiologists and some radiologists)

Hospital is generally liable for all nurses – student, RN, LPN, nurse practitioners, psych nurses Standard of care for nurses is same as physicians: the ordinary, average nurse in same field Expert evidence usually required drs can give evidence due to team approach (Pinch) Evidence of nurse’s invariable practice is admissible and can be important (Pinch) Nurses play a number of roles: Independent licensed professionals with specific obligations,

employees of hospital so have to follow policy, and have duty to follow dr orders If roles conflict: if nurse follows dr order and patient injured, nurse is liable for negligence

only where order should have been recognized as manifestly wrong by reasonable nurse For this reason, hospitals should have an escalation procedure that sets out how a nurse

can have immediate and serious concerns addressed Hospital is also vicariously liable for all other employees

Midwives are generally independent contractors Volunteers would likely be considered employees as they are there at behest of hospital

CONTRIBUTORY NEGLIGENCEBasics An active defence to negligence Comes from the principle that patients have duties and responsibilities for their medical care must meet the

standard of a reasonable patient wrt a number of duties o Provide dr with information o Follow dr’s instructionso Generally act in their own best interests

If they do not meet the standard of a reasonable patient, and their breach is the cause of (or contributes to) their injuries, they may be found contributorily negligent

Implications of a finding of contributory negligence o Compensation will be reduced by proportion of P’s liability o Joint and several liability no longer applies as normal if multiple tortfeasors (BC Negligence Act)

Contributory Negligence vs Failure to Mitigate Contributory negligence generally occurs prior to an injury being sustained Duty to mitigate damages or losses arises after the injury is sustained Both concepts can result in a reduction of P’s damages Only contributory negligence is a defence failure to mitigate is not Only contributory negligence severs joint and several liability, failure to mitigate does not

Failure to Provide Information to Physician

Rose v Dujon, 1990 AB QBF: P suffered subdural hematomas 2 and 3 wks before diagnosis |these caused increased pressure to brain which led to blindness | P had suffered two traumatic blows to the head in weeks leading up to diagnosis but had mentioned this to physicians A: inherent in obligation of patient is need to communicate fully, doctors are not mindreaders – they need information from the key source | Patient owes himself duty to do everything reasonably necessary to ensure he is not harmed | patient is accountable for disclosing to his dr all relevant and pertinent info of which he is aware | one must also always remain sensitive to the nature of relationship and possible intimidation | ability to disclose will depend on the individual patient’s personal circumstances

Bennett v Landecker [2011 ONSC]

F: P suffered acute partial loss of vision in upper left field, went to dr | diagnosed with retinal arterial occlusion and told nothing further could be done | he interpreted this to mean no matter circumstances nothing to be done: within2 days, he experienced total loss of vision | nearly 2 months before told his dr of that loss | diagnosed with retinal detachment that would likely not have resulted in blindness had it been treated earlier A: physician fell below SOC in several respects, but P shared 40% negligence | P had obligation to act proactively in his own interests, call dr, attend at office, go to emerg or something to ensure this second drastic change was communicated | he deviated not only from standard of reasonable patient but also from his own previous behavior

Failure to Comply with Medical Instructions Could include failure to return for follow-up appts or additional testing The patient’s understanding of the reasons for instruction can be relevant

Polera v Wade [2015 ONSC] F: P tested and fitted with hearing aid, sent for MRI | D failed to detect her brain tumor in the results | he admitted liability but said she had failed to keep follow-up recommended appts A: P did indeed fail to make follow up appts, but she didn’t know about the tumor | she was not told there was any urgency to see dr and had no reason to understand that failing to attend was critical

Kahlon v Vancouver Coastal Health Authority [2009 BCSC] F: P suffered from lower back pain | two drs told him it was likely disc so benign and would fix itself | however, CT L-spine revealed possible issues | radiologist asked hospital staff to ask him to return for CT contrast | P did not return | he subsequently became v. ill with infection | court found as a fact that he did not return simply b/c he procrastinated and relied on advice it was likely benign problem A: his misunderstanding of cause of back pain was partly a consequence of own actions in failing to follow up | his understanding of condition and risks of not following up were relevant contextual factors | 30% CNNOTE: court described how to decide % of responsibility for each party emphasized it is about relative fault/blameworthiness, NOT contribution to causation about how far P and D strayed from SOC, not how much their straying contributed to the injury || here, P just misunderstood, while hospital had a long list of breaches so they strayed further, on causation probably 50/50 but blameworthiness is 70/30

Actually Following a Doctor’s Advice?

Zhang v Kan [2003 BCSC]F: P relied on dr incorrect advice that it was too late to have amniocentesis and opted not to have test | she did not discover child had Down’s Syndrome and lost opportunity to terminate the pregnancy A: she is sophisticated and experienced businesswoman who had researched the topic and knew at her age she was at high risk of having Down’s child | she knew the dr advice was wrong but just elected to trust him | found 50% cont neg

FAILURE TO MITIGATE A P who has suffered a loss has a “duty to mitigate” the loss cannot recover damages which could have been

avoided by taking reasonable steps (Reed v Steele, 1997 BCCA) Mitigation often involves further intervention from HCP aimed at restoring P as closely as possible to state he

enjoyed prior to injury P also has duty to mitigate financial losses by returning to work if they are able If P demonstrated unwillingness to undertake therapy in past, future costs of care may be reduced NOTE that there is no true “duty” – P can choose not to mitigate, just won’t get damages for the amount they could

have mitigated To succeed in a failure to mitigate argument the D must prove that P acted unreasonably in not undergoing the

recommended treatment AND the extent to which P’s damages would have been reduced had he acted reasonably (Chiu v Chiu, 2002 BCCA)

Another modified objective test whether the reasonable patient, having all the info at hand the plaintiff possessed, ought to have undergone the recommended treatment (Janiak v Ippolito, 1985 SCC)

All About Context P are not required to make perfect choices in taking steps to minimize losses

o If medical opinions conflict and both seem equally valid, failure to choose one and not the other will not be punished

If recommended action is not likely to restore P’s health, if risks of intervention are unacceptably great, or if damages would not be reduced in any case, failure to follow advice will not change things

If they cannot afford to follow recommendations or life circumstances severely interfere, may not be penalized (single mom w/ 3 kids cannot go to physio 3 times a week)

As long as P makes “contextually reasonable and sincere efforts”, will not be penalized for failure to mitigate losses Ali v Padam, 2017 BCSC P said the reason she didn’t follow treatment was money, court found that was probably

not the real reason (which was pain, avoiding weight gain, and embarrassment) not granted compensation for ongoing therapies b/c money would not fix those issues

What Can Plaintiffs Do to Rebut Claim of Failure to Mitigate? Determine the chance of success of recommended therapies if only a small % success, court may find no failure

to mitigate Adduce evidence that there were contextual factors such as financial impediments to participation Determine if factors flowing form the injury itself may have interfered with ability to follow medical advice

o Mom who had problem during labour and child born with brain injury invited to attend group sessions held at same hospital -- cannot go to that same hospital b/c of those bad memories

o Don’t need formal PTSD diagnosis for a court to hear and consider this kind of situation

DAMAGES

WRONGFUL DEATH Elements for finding liability are the same as in regular med neg action But the damages assessment is completely different (cannot put dead party in “but for” position)

o Instead, compensation is owed to their survivors Claim aims to compensate financial dependents for their financial losses only (Family Compensation Act)

o Small amount available for loss of care, guidance and affection (child loss of parent = $40k)o Small amount for funeral expenses ($10k)o Woefully inadequate legislation

Babies or older people have no dependents so very small financial awards only: not worth it

HEALTH CARE COSTS RECOVERY ACT If negligence is proven and P gets compensation, the gov’t can claim the $$ spent on health care costs that they

would not have needed if not for the negligence Past and future health care costs can be recovered Often gov’t asks P counsel to take on duty of proving health care costs as well as negligence can be difficult b/c

you have two clients and sometimes strategy to maximize both is in conflict There are legislative obligations for P to cooperate with the government and tell them you are making a claim NOTE: private health care insurance can also make similar subrogated claims for amounts they paid out P does

not get to double dip and D does not get to benefit from P having private health care insurance

THE TRILOGY Andrews v. Grand & Toy Alberta Ltd., [1978] 2 SCR 229

o 21 year old man, apprentice with C N Railways in Edmontono Rendered quadriplegic in a motor vehicle accident

Arnold v. Teno, [1978] 2 SCR 287o 4 ½ year old girl o Essentially paralyzed with mental impairment due to MVA after she was hit after running from behind a ice

cream truck Thornton v School Dist. No. 57 (Prince George) et al., [1978] 2 SCR 267

o 18 year old, 6’3” tall epitome of the all-round athleteo Rendered quadriplegic when he tried to do a somersault and fractured a vertebrae in his neck

All ppl with catastrophic injuries Court wanted to make sure that across Canada, ppl with the same sorts of injuries had access to the same amount of

compensation placed upper limit on non-pecs of $100k (about $380k today)

DAMAGE AWARDSWage Loss Past wage loss (generally from date of injury to date of trial)

o Straightforward to calculate for people with a regular paycheck o More complicated for business owners or those in the service industry/other cash industries who receive tips

but don’t claim fully on income taxeso Can be hard to calculate how much business was lost b/c owner can no longer be as involved o Not necessarily a “calculation” is actually a claim for loss of the value of work that P would have performed

but for the injury this means it can be measured in diff ways (Rowe v Bobell Express, 2005 BCCA) Actual earnings P would have received Replacement cost evaluation of tasks which P will now be unable to perform Assessment of reduced company profits Amount of secondary income lost, such as shared family income

Future wage loss (from date of trial to end of expected working life)o Always requires expert opinion o Can be straightforward or more complicated, some key items:

How long would they have worked? Need to interview P, spouse, friends, will be dependent on the job they were working (physical labour vs not)

o For infants, it is based on the educational achievements of parents 1 level higher o There are four considerations that should be taken into consideration (Brown v Golaiy, 1985 BCSC)

The plaintiff has been rendered less capable overall from earning income from all types of employment the plaintiff is less marketable or attractive as an employee to potential employers the plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have

been open to him, had he not been injured; and P is less valuable to himself as a person capable of earning income in a competitive labour market.”

o Mitigation often comes into play with future wage loss calculation: did they fail to try to mitigate how restricted their work would be in the future?

Costs of Care Past care (generally from date of injury to date of trial)

o Special Damages (Out-of-pocket expenses) Money that P (or family members) have had to spend that they would not otherwise have spent but for

negligence of D some examples: Attendant/nursing care (usually biggest expense for injured babies, huge range) Renovations to a home or vehicle (consult experts to determine what is needed) Mediations, equipment and therapies (prob not cutting edge tech) Mileage and parking to additional medial appointments

The test is what a reasonably minded person of ample means would be prepared to incur as an expense, for which there is a medical basis (Mitchell v We Care, 2004 BCSC)

o In-trust claim Award payable to P, in trust for family members or friends, to compensate them for additional service

they have provided, beyond what would normally be expected Ie the more time a parent spends with an injured child than they would if the child was not

injured (differences increases as the child gets older) Given so family can hire someone else, or they can continue to provide care too Factors that go to awarding an in-trust claim (Bystedt v Hay, 2001 BCSC):

the services provided must replace services necessary for care of P as a result of P’s injuries; if the services are rendered by a family member, they must be over and above what would be

expected from the family relationship (here, the normal care of an uninjured child); the maximum value of such services is the cost of obtaining the services outside the family; where the opportunity cost to the care-giving family member is lower than the cost of obtaining

the services independently, the court will award the lower amount; quantification should reflect true and reasonable value of the services performed taking into

account the time, quality and nature of those services. damages should reflect the wage of a substitute caregiver, should not be discounting/undervaluation b/c of nature of the relationship 

family members providing the services need not forego other income (don’t have to have been working before) and there need not be payment for the services rendered.

Future care (from date of trial to end of life expectancy)o Pecuniary claim for the amount which may reasonably be expected to be expended in putting the injured

party in position would have been if had not sustained injury (as much as possible) Money is not a great substitute for health and personal happiness, but to extent It can be used it may

properly form part of a claim (Andrews v Grand & Toy) o Not an exercise in saving money (Williams v Low, 2000 BCSC)o Can include a wide range of medical equipment, therapies, and housing need experts

Attendant care Physio, occupational therapy, speech language therapy Equipment wheelchairs, lifts, standing frame, communications devices Medications and medical supplies Housing usually the difference btwn what kind of house they would have purchased 9or the house

they had) and what kind of house they need now b/c of their injurieso Proof hypothetical future events do not need to be proven on BOP, instead just given weight according to

relative likelihood (Athey v Leonati) Ie if there is 30% chance injuries will worse, damages increased by 30% of anticipated future care to

reflect that risk Future possibilities are taken into consideration as long as it is a real and substantial possibility and not

a mere speculation (Athey) Past events, once proven on BOP, are treated as certain not so for future (Athey)

o Defendant cannot foist responsibility onto the public purse (Arnold v Teno) hence HCCRAo P has property of the compensation (if competent adult) once granted court cannot tell them how to use it,

they can choose (Andrews v Grand & Toy) For infants or mentally incompetent, can maybe do structured settlements

Non-Pecuniary Damages (Pain and Suffering) The trilogy is known for setting the common law limit for pain and suffering awards in Canada (set at $100k, now is

about $380k)o Reserved for the most catastrophically injured person who has highest level of solace

Andrews future care costs should be forefront of judge’s mind when awarding damages no money can provide true restitution

Functional approach rather than attempting to value lost happiness, you just assess compensation required to provide the injured person “reasonable solace for misfortune” (Andrews)

Must consider the individual situation of the victim how much did what they lose affect them (a pianist who loses a finger has a greater loss than someone who is not a pianist) (Andrews)

Should be no variation for where you live in Canada wrt non-pecuniary loss (Andrews) award for non-pecuniary damage should not depend alone upon the seriousness of the injury but upon its

ability to ameliorate the condition of the victim considering his or her particular situation the gravity of the injury alone will be determinative.  (Stapley v. Hejslet, 2006 BCCA)o An appreciation of the individual's loss is the key and the need for solace will not necessarily correlate

with the seriousness of the injury.  An award will vary in each case "to meet the specific circumstances of the individual case"

Non- exhaustive list of factors that includence an award of non-pec damages (Stapley v Hejslet):o age of the plaintiff (younger w/more life ahead of them means larger award)

Can also argue "golden years" for ppl who worked hard when young and planned on having fun and travelling in retirement and now can't

o nature of the injury; o severity and duration of pain; o disability; o emotional suffering; o loss or impairment of life; o impairment of family, marital and social relationships;o impairment of physical and mental abilities;o loss of lifestyle; ando the plaintiff's stoicism (as a factor that should not, generally speaking, penalize the plaintiff:  Giang v. Clayton)

Other items: Pre-judgment Interest, Post-judgment Interest, Costs

DUTY OF DISCLOSURE

DUTY TO DISCLOSE ADVERSE EVENTS What is an Adverse Event 3-7.5% of patients suffer an adverse event during a hospital stay An adverse event (aka critical incident) = an unintended injury or complication that results in disability at the time

of discharge, death or prolonged hospital stay AND that is caused by health care management rather than by the patient’s underlying disease process

Canadian Patient Safety Institute’s “Canadian Disclosure Guidelines” tell you how you should make disclosures to a patient, and who needs to be there when you do (procedure, not content)o First priority after adverse event should remain provision of appropriate clinical care o Disclosure does not imply blame or fault, but refers to open and timely communication with a patient about

an adverse or harmful event o Decision whether or not to disclose events which have not resulted in patient harm should consider the best

interests of the patient (pretty paternalist)

Ethical Duty to Disclose Doctors have an ethical duty to disclose errors to their patients

o Canadian Medical Association Code of Ethics: 14. Take all reasonable steps to prevent harm to patients; should harm occur, disclose it to the patient.

o This had been adopted by the College of Physicians and Surgeons of BC Other health professionals do not have such a similar concept in their Code of Ethics only doctor

Legal Duty to Disclose If a patient has the right to be told what MAY go wrong (informed consent), surely the patient has the right to be

told what has in fact gone wrong (disclosure) o Stamos v Davies, 1985 ON SC surgeon punctured the patient’s spleen in the course of performing a lung

biopsy, but did not tell the patient Court found should have told patient Must disclose if it is something that a reasonable person in the patient’s position would want to know Basis for this duty? Some differing views:

o Component of the doctrine of informed consent info has to flow after the procedure tooo Grounded in the fiduciary nature of the doctor-patient relationship

Vasdani v Sehmi, [1993] OJ Surgeon realized operated on wrong level of spine and didn’t tell patient, which caused P to delay starting lawsuit which eventually won Court awarded P pre-judgement interest going all the way back to what would have occurred had they known about the injury when they should have

Gerula v Flores, [1995] ONCA surgeon operated on the wrong side of the spine (L not R), patient went back to GP and said was not better, GP orders new MRI which goes back to original surgeon who figures out the mistake and tells GP and says will do surgery today to fix it, tells patient second surgery helps, but there was a period of time when still in pain and shouldn’t have been Surgeon still ended up in lawsuit even though disclosed -- sued for the additional pain caused before fixing it

Shobridge v Thomas [1999 BCSC]F: surgeon left 6 inch X 6ft abdominal roll in P’s abdomen | nurses failed to do proper count | surgeon thinks his clip came undone which is how this happened | this was only discovered 3 months later during subsequent surgery | at least 3 drs and 2 nurses in OR | P was not told until 2 mo later, Thomas said ashamed to tell her earlier

[147] Damages are assessed and assigned as follows:    (a)   Non-pecuniary damages:                                $85,000               ($125,000)   (b)   Past Income loss:                                               $55,293                ($85,000)   (c)   Loss of future capacity to earn income:      $50,000          ($73,000)           (d)   Future care                                                                  0   (e)   Aggravated Damages             Dr. Thomas     $25,000                ($37,000)   (f)    Punitive Damages                   Dr. Thomas     $20,000         ($29,000)                                                                                             $235,293        ($345,000)                   Dr. Thomas:                                                   $149,305            ($220,000)                  The hospital and nurses:                           $85,988              ($136,259)

WHOSE DUTY IS IT In Shobridge v Thomas the court held that it was Dr. Thomas’s obligation - the nurses did not have a duty to disclose

the error to the patient, even through it was clear to them that the surgeon had decided not to and even though the (other) nurses themselves were negligent in not having included the abdominal roll in the sponge count. o Is that consistent to the “team approach” to health care? Uncertain if same result would occur today rather

than 1999 as nurses are now seen as more independent professionalso Is that consistent with the fact that nurses are independent health care professionals and not merely the “eyes

and ears of the physician” Do hospitals have a duty to disclose errors?

o Statutory disclosure duties exist in some provinces Manitoba, Ontario -- not in BC

o Errors are often disclosed to the hospital as part of their quality assurance program. Does this have to be disclosed to the patient? hospital has an interest in learning what is going on which is why hospitals want this to be protected

and not available to lawyers or patients Generally the facts are not protected by quality assurance programs -- facts of what happened to P

can be told, whether or not investigated under umbrella of quality assurance

TIMING OF DISCLOSURE Disclosure of errors must be made “as soon as reasonably practical” (Shobridge v Thomas) 2 mo later no good Consistent with Canadian Patient Safety Institute’s “Canadian Disclosure Guidelines”

HOW MUCH TO DISCLOSE the medical and surgical consultants should have taken steps to see that the [parents] were provided with the

fullest information regarding the circumstances of the unexpected catastrophe which their child had suffered. (Fowler v. Greater Glasgow Health Board, [1990]) o Young boy who suffered brain damage during heart operation (due to lack of O2 to brain) and he died o Parents made many efforts to find out what happened to son, so they started a lawsuit in negligence which

they losto Court was very critical of the fact that the dr were stonewalling the parents and not giving them info they

were seeking Obligation is to disclose material facts to the patient

o Material facts goes back to reasonable patient - what would they have wanted to know about what happened No obligation to express an opinion as to whether there has been negligence or not

IMPACTS OF A FAILURE TO DISCLOSE If failure to disclose error does not cause additional harm no damages will be awarded for the breach of the

duty to discloseo Eg. Stamos v Davies, (1985 Ont. H.C.) -- punctured spleen case

Psychological harm? – if caused by physician not disclosing an adverse event or lying and covering up the mistakeo It is considered to be reasonably foreseeable – therefore NOT too remote, and damages may be awarded.

(Frazer v. Haukioja, 2010 ONCA) Failure to disclose error can vitiate consent --> did they really know what they were consenting to and why they

were being asked to consent? o Gerula v Flores – surgeon obtained consent to a second operation without telling the patient the operation

was necessary because of the mistakes he made during the first operation Court held this was intentional misrepresentation and vitiated the patient’s consent to the second operation – so the doctor was liable for battery Here the defendant also took active steps to alter the medical chart to hide the error Punitive damages of $40k were awarded

Failure to disclose error can also extend the limitation period (can nullify a “statute of limitations” defence) 2 yr limitation period starts when they are aware something went wrongo May constitute fraudulent concealment and postpone the running of the limitation period until the patient

discovers the truth note does it have to be active covering up – silence may constitute concealment

Aggravated Damages – Shobridgeo This is compensation for the aggravation of the injury as a result of defendant’s highhanded conduct or the

wilful or reckless indifference to the plaintiff's rightso this can be added to the plaintiff’s non-pecuniary compensation

Punitive Damages (Shobridge, citing Hill v. Church of Scientology of Toronto (1995))o Misconduct is so malicious, oppressive and high-handed that it offends the court's sense of decency

Often physician going out of their way to try to hide the error  o Bear no relation to what the plaintiff should receive by way of compensation. 

A P who is not injured could theoretically get punitive only Completely different from principles of tort law Aim is not to compensate the plaintiff, but rather to punish the defendant. 

o How the judge expresses its outrage at the egregious conduct of the defendant.  It is like a fine meant to act as deterrent to defendant and others. 

o Should only be awarded where the combined award of general and aggravated damages would be insufficient to achieve the goal of punishment and deterrence Doctor’s defence fund (CMPA) will not pay punitive damages for Drs

Why Would Doctors Not Disclose? Fear that this disclosure may increase likelihood of being sued No evidence supporting that fear – in fact it appears to be wrong in two ways

o Hospitals that implement an active policy of error disclosure actually experience a reduction in the incidence of malpractice litigation

o Patients who learn about an error later are much more likely to sue

APOLOGY ACTDefinitions1   In this Act: "apology" means an expression of sympathy or regret, a statement that one is sorry or any other words or actions indicating contrition or commiseration, whether or not the words or actions admit or imply an admission of fault in connection with the matter to which the words or actions relateEffect of apology on liability2 (1) An apology made by or on behalf of a person in connection with any matter

(a) does not constitute an express or implied admission of fault or liability by the person in connection with that matter,(b) does not constitute an acknowledgement of liability in relation to that matter for the purposes of section 24 of the Limitation Act

[s.24 says that if fault is admitted or liability acknowledged, the 2 yr limitation period BEGINS](c) does not, despite any wording to the contrary in any contract of insurance and despite any other enactment, void, impair or otherwise affect any insurance coverage that is available, or that would, but for the apology, be available, to the person in connection with that matter, and(d) must not be taken into account in any determination of fault or liability in connection with that matter.

(2) Despite any other enactment, evidence of an apology made by or on behalf of a person in connection with any matter is not admissible in any court as evidence of the fault or liability of the person in connection with that matter.