Law and Medicine

Table of Contents

1. Introduction to Medical Negligence

Roles of Tort Law in Medical Negligence

Patient Safety Movement

Relevant Torts

Features of the Health Care System that Shape Medical Negligence

Criticisms & Alternative Methods

2. Medical Negligence – The Physician/Patient Relationship and Duty of Care

Basis for the Physician-Patient Relationship

Norberg v Wynrib (1992)

Scope of the Physician’s Legal Duty of Care:

Courtney v Cleary (2009)

Duty of Care in Situations Involving Multiple Physicians:

Crichton v Hastings (1972)

MacPhail v Desrosiers (1998)

Wenden v Trikha (1991)

Pittman Estate v Bain (1994)

3. Medical Negligence – Standard of Care

Crits v Sylvester et al (1956)

Error in Judgement

Wilson v Swanson (1956)

Standard of Care for Specialists or New Doctors or Non-Doctors

Pierre v Marshall (1993)

Locality Rule

McCormick v Marcotte (1971)

Crawford (Litigation Guardian of) v Penney (2003)

Unavailability of Resources

McLean v Carr Estate (1994)

Batemen v Doiron (1991)

Defence for Not Meeting Standard of Care: Approved Practice

Ter Neuzen v Korn (1995)

Lapointe v Hôpitale Le Gardeur (1992)

Bergen v Sturgeon General Hospital (1984)

4. Medical Negligence – Causation

Evolution of the ‘But For Test’

Clements v Clements (2012)

Nattrass v Weber (2010)

Hetu v Traff (1999)

Causation and Loss of Chance

Laferrière v Lawson (1991)

Seyfert v Burnaby Hospital Society (1986)

Contributory Negligence

Zhang v Kan (2003)

Dumais v Hamiton (1998)

5. Medical Negligence – Litigating Claims and Calculating Damages

Udeschini v Juma (1998)

Ter Neuzen v Korn (1995)

6. Consent to Medical Treatment

Forms of Consent

The Elements of Valid Consent

Malette v Shulman et al (1990)

Fleming v Reid (1991)

Ciarlariello v Schacter (1993)

Allan v New Mount Sinai Hospital (1980)

Starson v Swayze (2003)

Consent and Minors

Manitoba (Director of Child & Family Services) v C(A) (2009)

Consequences: Battery

The Right to Refuse Treatment:

7. The Duty to Disclose/Informed Consent

Consent versus Informed Consent:

Reibl v Hughes (1980)

Scope of Duty of Disclosure:

Material, Special, or Unusual Risks:

Duty to Disclose + Causation:

Martin v Capital Health Authority (2008)

Malinowski v Schneider (2010)

Pittman Estate v Bain (1994)

Therapeutic Privilege:

Arndt v Smith (1997)

Alternative Treatments:

Specific Types of Disclosure:

Alternative Facilities:

8. Wrongful Pregnancy, Wrongful Birth, Wrongful Life, and other Legal Implication of Non-invasive Prenatal Testing (NIPT)

Legal Implications of Non-Invasive Prenatal Testing and Claims for Wrongful Birth and Wrongful Life

Wrongful Birth Claims

Arndt v Smith (1997)

Wrongful Pregnancy & Calculating Damages

Kealey v Berzowski (1996)

Y(M) v Boutros (2002)

Duty to Child Prior-Conception

Paxton v Ramji (2008)

9. Duty to Disclose Medical Error

Stamos v Davies (1985)

Fiduciary Nature of Doctor-Patient Relationship

Vasdani v Sehmi (1993)

Gerula v Flores (1995)

Mandatory Reporting of Adverse Drug Reactions

Shobridge v Thomas (1999)

How much Information must the doctor disclose?

Apology

Legislative Guidelines for Disclosure

Disclosure in Practice & in Litigation

10. Health Information and Medical Records: Privacy and Confidentiality

Disclosure in the Public Interest

Statutory Public Interest Discourses

McInerney: Limitations on Access

IHA: Limitations on Access

McInerney v MacDonald (1992)

Hollinsworth v BCTV (1996)

Peters-Brown v Regional District of Health Board (1995)

Pittman Estate v Bain (1994)

Human Biological Materials

11. Law and Decision-Making at the End of Life

Withdrawing and Withholding Life-Sustaining Treatment

Palliative Care

Medical Assistance in Dying (MAID)

Rasouli (Litigation Guardian of) v Sunnybrook Health Sciences Centre (2013)

Carter v Canada (2015)

Alberta (Child, Youth, and Family Enhancement Act, Director) v L(D) (2012)

12. Organ Donation and Transplantation: Consent, Incentives, and the Definition of Death

13. Organ Trafficking and Stem Cell Tourism: Obligations of Physicians whose Patients Travel Abroad for Treatment

Transplant Tourism

Stem Cell Tourism

EXAM

1. Introduction to Medical Negligence

In this class, we will discuss the application of tort law to medical negligence claims, focusing particularly on key concepts in tort law as they relate to medical negligence, features of the health care system that play a role in shaping the medical negligence landscape, and potential alternatives to tort law for persons seeking compensation for injuries resulting from physician negligence. We will also discuss the history and role of the Canadian Medical Protective Association (CMPA) in relation to medical malpractice lawsuits.

Learning Outcomes:

By the end of this class, students should be able to:

  • Explain the role and purpose of tort law in relation to medical negligence;
  • Identify and explain the features of our health care system and key actors that play a role in shaping the medical negligence landscape;
  • Compare and contrast tort law with some alternative compensation systems; and
  • Identify and evaluate the major criticisms of tort law in relation to medical negligence

Readings:

Colleen M Flood & Bryan Thomas, “Canadian Medical Malpractice Law in 2011: Missing the Mark on Patient Safety” (2011) 86:3 Chicago-Kent L Rev 1053 (read pp. 1053-1069; 1084-1090)

“Sharp actors” = doctors; “blunt actors” = other levels of the healthcare system. Deterrence needs to target the correct level of the system; deterrence can lead doctors to fear liability and avoid high-risk patients or procedures.

Jeffrey O’Connell, “Neo-No-Fault Remedies for Medical Injuries: Coordinated Statutory and Contractual Alternatives” (1986) 49:2 Law and Contemporary Problems 125 (read pp. 128-135)

Neo-no fault Legislative system: defendant may or may not tender/sue but the claimant must accept. Neo-no fault contractual system: defendant must tender and claimant may or may not accept. It is better for patients/claimants for the latter system; but better for doctors/defendants in the former proposed system.

Andrew Brine, “Medical Malpractice and the Goals of Tort Law” (2003) 11 Health L J 241

Positive and negative defensive medicine results from deterrents. Positive defensive medicine means that the doctors are ordering more tests and being more careful (this can lead to inefficiencies in the wait times, increased patient anxiety, and invasive unnecessary testing). However, it could also lead to more patient/doctor time and make doctors more cautious. Negative defensive medicine means that the doctor is not taking on high-risk patients or conducting high-risk procedures even though they may provide a cure because they are afraid of being found liable.

Roles of Tort Law in Medical Negligence

  1. Compensation
  2. Fairness/Justice
  3. Deterrence
  4. Education

Patient Safety Movement

Goals: openness, transparency, and disclosure of errors.

Adverse Events (AEs) are “unintended injuries or complications that are caused by healthcare management rather than by the patient’s underlying disease, and they lead to death, or disability at the time of the patient’s discharge, or they result in a prolonged hospital stay.

Relevant Torts

  1. Battery: medical treatment without valid consent
  2. Valid consent:voluntarily given consent from a person with capacity giving reference to a specific procedure.
  3. Reibl v Hughes: caused the bar for ‘informed consent’ to be substantially lowered and now, typically dealt with in negligence cases rather than battery cases.
  4. Defences: contributory negligence, limitation periods, approved practice, error in judgement.
  5. Negligence: a duty of care, a standard of care is owed, the standard of care is breached resulting in injury.
  6. There are caps on damages (pain and suffering)
  7. Proving causation can be very difficult for plaintiffs
  8. Defences: error of judgement approved practiced, statute barring action.

The difference between battery and negligence is that battery is actionable without proof of physical damage and liability for battery is not confined to foreseeable circumstances.

Features of the Health Care System that Shape Medical Negligence

The Canadian healthcare system is affected by the distribution of powers because of section 91 and 92 of the constitution; this results in a “patchwork of coverage and regulation”

PROBLEMS WITH MED-NEG & OUR HEALTHCARE SYSTEM:

1) Provinces deliver the healthcare, and must cover what is ‘medically necessary’

Doctors play a large part in determining what ‘medically necessary’ services are, and this can cause inconsistencies and can be biased.

2) Canada has a single-payer system (the government covers healthcare); however, not all healthcare falls under this system, for example: dental, optometry, cosmetic surgery, etc. These things are not regulated services.

3) Structural problems and criticisms include the fact that the CMPA has no shareholders and the doctors’ premiums do not necessarily decrease after an altercation with medical negligence.

Limits on Vicarious Liability:

  • Physicians are private for-profit actors (i.e. independent contractors
  • Physicians are self-regulated and are paid as per what their professional organization has negotiated for them with the government
  • Hospitals are operating separately of doctors and it is therefore, difficult to find them liable—this contributes to some of the systemic problems.

Other Types of Liability:

  • Vicarious Liability: nursing staff, residents, interns, physicians employed in house.
  • Factual Determination: employees who are salaried by the hospital, integral versus accessory to the hospital’s operations.
  • Government Liability: the government is not very exposed to risk here, but if it were, the court would have to decide if the decision in question made by the government was policy or an operational decision.

Criticisms & Alternative Methods

  1. Statutory Reform
  2. Legislate vicarious liability to include physicians
  3. Eliminate security for cost or cap costs
  4. Regulate the private sector health care
  5. Regulate education or require re-certification
  1. Systemic Reform
  2. Tort System: the system we currently have. Defendant may or may not tender, the claimant may or may not accept.
  3. No-Fault System: defendant must tender and claimant must accept.
  4. Neo-No Fault System (Legislative): defendant may or may not tender, claimant must accept.
  5. Neo-No Fault System (Contractual): defendant must tender and claimant may or may not accept.

2. Medical Negligence – The Physician/Patient Relationship and Duty of Care

We will discuss the duty of care owed by physicians to patients, and evaluate specific duties of care as they apply to physicians and/or other health care professionals.

Learning Outcomes:

By the end of this topic, students should be able to:

  • Explain the legal basis of the physician-patient relationship and the scope of the duty of care owed by physicians to patients;
  • Explain and determine how the duty of care is assessed when a patient is cared for by a health care team or by a number of specialists;
  • Identify and explain the physician’s duty of care in specific contexts, including emergency and “good Samaritan” care, referral to colleagues or alternative practitioners, and duties to third parties.

Readings:

Crichton v. Hastings, [1972] OJ No 599 (CA)

Courtney v. Cleary, 2009 NLTD 103, [2009] NJ No 178 (paras. 1-7 & 120-129)

Wenden v. Trikha, 1991 CarswellAlta 408 (ABQB) (paras. 1-8 & 50-94)

Pittman Estate v. Bain, [1994] OJ No 463 (ON Ct J – Gen Div) (paras. 1-16, 697-716, 741, 765-767, & 780-797)

MacPhail v. Desrosiers, 1998 CarswellNS 372 (NSCA) (paras. 3 & 53-64)

Norberg v. Wynrib, 1992 CarswellBC 155 (SCC) (paras. 61-78, 84, 93-96 & 100)

Basis for the Physician-Patient Relationship

LEGAL BASIS:

  • Formerly, contractual—today most actions are based in negligence (torts)
  • The only exception where it might be beneficial to sue in contract rather than negligence is if the doctor gave you a binding guarantee for a particular outcome of the treatment (i.e. cosmetic surgery outcome)

SOCIOLOGICAL BASIS:

  • Doctor = active; Patient = passive (knocked out)
  • Paternalism = doctor guides and patient complies
  • Mutual Participation (more prevalent today) = shared decision making

FIDUCIARY BASIS:

  • Relationship is based on confidence and in trust of physicians
  • Physicians are OBLIGATED to act in the patient's best interest in utmost good faith and to avoid conflicts of interest
  • Confidentiality

Norberg v Wynrib (1992)

[Fiduciary duty owed to patients]
Facts: Dr. Wynrib was coercing his patient Norberg to provide him with sexual favours in exchange for him to provide her with painkillers that she is now addicted to after her dental surgery. He failed to treat her underlying addiction.
Decision: in favour of the plaintiff, a fiduciary duty was owed. More specifically, there was a duty that the doctor consults his patient when he prescribed her addictive drugs, and the fact that he did not treat her addiction and put his own interests first. There is a power imbalance in the relationship between P-P and Dr. W took advantage of this.
Ratio: The fiduciary duty is not limited to matters of confidentiality, and is fundamental to the physician-patient relationship where a power imbalance exists.
Three Key Indicia of a Breach of a Fiduciary Relationship:
  1. Scope for exercise of discretion of power (doctor could decide to prescribe or not prescribe addictive pain killers)
  2. Unilateral exercise so as to affect the patient's legal or practical interest
  3. Patient/beneficiary is "peculiarly vulnerable" or at the mercy of the fiduciary

Scope of the Physician’s Legal Duty of Care:

Duty of Care Arises When:

  1. When physician agrees to treat a patient based on the patients' implied express request
  2. Once created, the physician is obligated to attend/treat as long as the medical practice demands (this can vary)
  3. Patients can fire their physician at any time, even against "informed" medical advice
  4. Similarly, physicians can end a relationship with a patient, subject to reasonable notice period and their intent to discontinue
  5. However, subject to HR legislation, physicians cannot refuse to accept patients based on discrimination (i.e. case where a dentist denied someone with AIDS and a fertility clinic denied a lesbian couple)

DUTY TO ATTEND

  • Arises when physician-patient relationship is established
  • Includes: attending on patients in hospital; keeping appointments
  • Liability arises only when breach leads to injury or damage
  • Factors: urgency of request, nature of condition, available alternatives, physician's other commitments
  • Not necessarily a personal duty

Smith v Rae, 1919 ONCA [duty to attend takes into consideration the physician's other commitments] The husband of the plaintiff phoned a doctor that his wife was giving birth, the doctor said he would get there when he could, by the time the doctor arrived, the baby had been delivered as a still born. The court decided in favour of the doctor because he had other important patients he was attending to.

DUTY TO DIAGNOSE

  • In reasonable time or refer you to someone else if they cannot diagnose you
  • This is a common basis for litigation, but note the error of judgement defence (diagnosing is not a perfect science, and as long as the doctor's diagnosis was reasonable, the court will often rule in their favour)
  • Components include: taking a thorough history, appropriate exams and tests, consultation with specialists/colleagues where appropriate

Wade v Nayernouri, 1978 Ont HC [establishes the components of the duty to diagnose, such as taking history, tests, and consulting if necessary]

Intracranial haemorrhage occurred when doctor sent patient with headache home-- he said he just had a migraine. The court ruled that the doctor was guilty and failed to obtain a patient history, didn't get a referral to a neurologist, and didn't conduct any tests.

Bergen v Sturgeon General Hospital, 1984 (ABQB)

Patient was in the hospital for 4-5 days and the doctors failed to diagnose her with appendicitis. Provisional diagnosis of pelvic inflammatory disease resulted and appendix eventually ruptured and patient died of septic shock. Initial approach not negligent but subsequent tunnel vision was negligent. Duty to consider different diagnosis is applicable because patient was not improving.

Differential Diagnosis: Three-Step Process (Crick v Mohan, 1993)

Step 1: differential diagnosis - consider all possibilities

Step 2: Presumptive/working diagnosis and treat accordingly

Step 3: definitive diagnosis

DUTY TO TREAT

  • Treatment should focus on patient's particular needs
  • Situations leading to liability include:

1)Wrong operation or medication

2)Prescribing the wrong medication or not asking if you are allergic to certain medications/substances

3)Conducting an inappropriate surgery OR conducting a surgery wrong (depends if this was done negligently)

  • Care and communication is essential
  • Duty to adhere to science-based/evidence-based medicine (not exactly established as a duty—this is controversial)
  • Lapointe v Hôpitale le Gardeur, 1992 [supports science-based medicine, we will look at this case further later]

DUTY TO PROVIDE EMERGENCY SERVICES

  • Does not have a clear answer in Canadian law whether this is a duty
  • When a physician does provide emergency care, can they be held liable for negligence?
  • Emergency Medical Aid Act (Alberta) answers this and says that if this emergency care does not occur at a hospital, then the doctor will not be held liable unless "gross negligence” occurs. However, "gross negligence" is a vague term.

DUTY TO REFER

  • Refer = to confer with another colleague and carry on treating or to transfer care to another physician
  • There is no test on this, but case law says that a referral is indicated when:

1) A doctor is not able to diagnose the condition,

2)When patient is not responding the treatment,

3)When patient requires treatment that the doctor cannot provide,

4)When the doctor is away and cannot treat for a period of time,

5)Or when the doctor is approaching his or her limits of their experience.

Briante (Litigation guardian of) v Vancouver Island Health Authority, 2014 [describes duty to refer]"A medical practitioner has a duty to refer or consult with a specialist whenever a reasonably prudent physician would consider it necessary in the circumstances…"

Law Estate v Simice, 1994 (BCSC) [failure to pass on relevant info constitutes breach of duty to refer]Patient died after ruptured aneurism. Referring to doctor, he didn't tell the ophthalmologist of the sluggish pupil that he noticed and he didn’t tell the internist that the patient had seen the ophthalmologist.

Courtney v Cleary (2009)

[What counts as a referral?]
Doctor noticed that his patient who was a heavy drinker and smoker had an oral lesion and he though maybe it was cancerous, but he just said that he should see a dentist (he did not send any info to dentist or say which dentist P should see). The issue was: did the doctor's recommendation that the patient should see a dentist constitute as a referral?

QUERY:Should physicians have an obligation to arrange for a second opinion if the patient requests one? Depends on the issue, the severity, and on the doctor's ability to gain a second opinion. Does consultation with a colleague/specialist preclude a finding of negligence? Not definitively, it is fact-specific.