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Archives for October 2019

Breach of Fiduciary Duty Claims Against Physicians

Tuesday, October 22, 2019 By Andrea Donaldson

Doctors have a duty to act with the utmost loyalty and good faith when dealing with their patients, and must never allow their personal interests to conflict with their professional duty.  This duty is called a “fiduciary duty.”  In this article Andrea Donaldson reviews a number of infamous lawsuits in which physicians breached this duty, and discusses a recent application of these principles in the case law.

Fiduciary relationships are a special category of legal relationship in which one person (the fiduciary) has discretionary power over significant practical interests (such as the medical, legal, or financial interests) of another (the beneficiary). The fiduciary duty may be understood as one type of a more generalized duty by which the law seeks to protect vulnerable people in their transactions with others. The physician-patient relationship has long been recognized as one of the traditional categories of fiduciary relationship, and as such, doctors have an obligation to their patients to act with the utmost loyalty, good faith, and must never allow their personal interests to conflict with their professional duty.1

LEGAL FRAMEWORK AND APPLICATION


In dissenting reasons in Frame v. Smith, 2 Wilson J. outlined the following hallmarks of a fiduciary relationship:
1. The fiduciary has scope for the exercise of some discretion of power;
2. The fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary’s legal or practical interests; and
3. The beneficiary is particularly vulnerable to, or at the mercy of, the fiduciary holding the discretion of power.

The fiduciary nature of the doctor-patient relationship was emphasized in the judgement of Justices L’Heureux-Dubé and McLachlin in Norberg v. Wynrib. 3 In that case, a young female patient, addicted to the painkiller Fiorinal from previous treatments, sought prescriptions from the defendant physician who agreed and provided them to her in exchange for sexual acts. The trial judge found that the defendant breached his fiduciary duty by engaging in sexual relations with the plaintiff, by continuing to prescribe painkillers to her, by capitalizing on the plaintiff’s addiction, and by showing a total disregard for her best interests. However, because the plaintiff knowingly entered into an “illegal bargain,” her claim was dismissed on the basis of ex turpi causa, which states that a plaintiff who engages in criminal conduct at the time of the injury may be denied all tort recovery for damages. The BC Court of Appeal upheld the dismissal.

The Supreme Court of Canada allowed the plaintiff’s appeal, but offered three separate judgements. While La Forest J. and Sopinka J. analyzed the case on the basis of the doctrines of tort and contract, McLachlin J. found that these did not “capture the essential nature of the wrong done to the plaintiff”,4 finding that the claim ought to be analyzed on the basis of a breach of fiduciary duty. McLachlin J. went on to state that “the most fundamental characteristics of the doctor-patient relationship is its fiduciary nature”5 , which has trust, not self-interest, at its core. If a fiduciary relationship is shown to exist, then the proper legal analysis is one based squarely on the full and fair consequences of a breach of that relationship. For the purposes of this case, McLachlin J. noted that it need not be decided whether any sexual contact between a doctor and his or her patient is a breach of the doctor’s fiduciary duty, but stated that where such a power balance exists and exploitation occurs, the doctor will be at fault. The defenses based on allegations of fault of the plaintiff were found to carry little weight in a breach of fiduciary duty claim.

A fiduciary duty of the physician to their patient has also been applied in other contexts, such as access to medical records and disclosure of medical errors. In McInerney v. MacDonald,6 the SCC held that the duty of the physician to provide access to medical records is grounded in the nature of the patient’s interest in his or her records, as “… information about oneself revealed to a doctor acting in a professional capacity remains, in a fundamental sense, one’s own. The doctor’s position is one of trust and confidence. The information conveyed is held in a fashion somewhat akin to a trust… The confiding of the information to the physician for medical purposes gives rise to an expectation that the patient’s interest in and control of the information will continue.”7

In Shobridge v. Thomas, 8 the plaintiff underwent laparotomy surgery in which a 6-foot long abdominal roll used to pack the bowel was inadvertently left inside her abdomen. The plaintiff suffered a significant infection post-operatively. After two further hospital admissions to treat the infection, the defendant physician performed an additional surgery during which the retained abdominal roll was discovered. At that point, he told the nurses involved in the second surgery that there would be no incident report filed. He finally revealed to the plaintiff that the roll had been retained several months later, at the urging of his colleagues. The plaintiff claimed damages from the physician, the hospital, and the nurses who participated in the initial surgery for negligence, breach of fiduciary duty, and deceit. Both the physician and the nurses were found liable in negligence for the retained roll, however the court found that the full burden of any damage flowing from the failure to disclose the error rested with the physician as he breached his fiduciary duty to inform the plaintiff of the error, and in doing so caused her further harm.

A claim for breach of fiduciary duty affords the plaintiff a number of advantages compared to the tort of negligence, as the court has resort to a broad range of remedies that are not necessarily related to direct or provable loss. The court can consider not only the impact of the fiduciary’s conduct on the plaintiff, but the seriousness of the defendant physician’s behavior and the need to protect the integrity of the doctor-patient relationship by clearly condemning and attempting to deter such conduct. In Shobridge, the court found that the defendant’s deliberate attempt to suppress the truth from being revealed to the plaintiff was egregious conduct on the part of a medical professional and demonstrated bad faith deserving of rebuke, awarding both aggravated and punitive damages against the defendant.

FIDUCIARY DUTY AND INFORMED CONSENT

The concept of informed consent “underscores, and gives meaning to, the patient’s right to medical self-determination,” 11 as it is ultimately up to the patient to decide whether to accept a proposed treatment, no matter how beneficial it may be in the eyes of the physician. The courts have recognized that “this right is meaningless unless the patient has been given enough information to make an informed choice”.12 In Reibl v. Hughes, 13 the SCC “held that the doctor-patient relationship gives rise to a duty to disclose all material risks”14. The court formulated the appropriate test for determining whether a certain risk was “material” as a “modified objective test, which focusses on what a reasonable person in the patient’s position would want to know”.15 Prior to Reibl, the extent of disclosure “was determined by asking what a reasonable doctor would tell the patient”16, known as the “professional disclosure” standard.

Failing to inform a patient of all material risks will not generally be found to be a breach of a fiduciary duty, but may give rise to a negligence claim. In Arndt v. Smith, 17 serious injuries occurred to a child as a result of her mother being infected with chicken pox during pregnancy. The mother, Ms. Arndt, brought a claim for wrongful birth. The trial judge concluded that the defendant physician was negligent in failing to disclose to Ms. Arndt all of the risks of chicken pox contracted during pregnancy, but found that even if she had been advised of the nature and probability of risk to her baby, Ms. Arndt would not have chosen to terminate the pregnancy. The BC Court of Appeal reversed the trial decision, finding that the duty of disclosure of material risks is not like an ordinary duty of care in negligence, but more similar to a fiduciary duty of disclosure, with a standard of utmost good faith in the discharge of an obligation by a person in the position of power and control to a person in a position of dependency and reliance.

The SCC subsequently reversed the Court of Appeal, holding that the trial judge had applied the right test and did not err in dismissing the action. The SCC also rejected Ms. Arndt’s claim for breach of fiduciary duty, as the effect would be to replace the factual analysis of standard of care and causation appropriate to negligence actions with a choice-based analysis that makes recovery virtually automatic upon proof of failure to provide relevant information. The Court saw no reason to depart from the failure to advise of medical risk under the law of negligence, absent special circumstances such as fraudulent misrepresentation or an abuse of power, neither of which was present in this case.

However, when a doctor is engaged in medical research and the relationship with the patient is also one of researcher and participant, fiduciary obligations impose a greater duty to disclose. It is no longer just material risks as per Reibl must be disclosed; rather, full and frank disclosure is required as per Halushka v. University of Saskatchewan, 18 in that case the court found that in these situations, there can be no exceptions to the requirements of disclosure as there may well be in ordinary medical practice as the researcher does not have to balance the probable effect of lack of treatment against the risk involved in treatment itself. The subject of a medical study is “entitled to a full and frank disclosure of all the facts, probabilities, and opinions which a reasonable person might be expected to consider before giving consent. The respondent necessarily had to rely upon the special skill, knowledge and experience of the appellants who were … placed in a fiduciary position”.19

The issue of informed consent in a research setting was again considered in the recent Ontario case of Stirrett v. Cheema. 20 Mr. Stirrett died as a result of undergoing an angiogram conducted as part of a clinical study to determine if intensive control of glucose levels with insulin would reduce the observed problem of re-blockage of arteries following angioplasty, particularly in diabetics.

To obtain the requisite approval and funding for the study, specific parameters were set out, including the requirement of a sufficient sample size to ensure there were enough participants for the results to meet the statistical validity requirements, and that the consent form to be signed and understood by participants would reflect the policy of full and frank disclosure of all information relevant to free and informed consent. The study required participants to undergo a follow up angiogram, which carried the 1/1000 risk of serious complications such as heart attack, stroke, or death. Importantly, it was not being done as part of regular clinical practice, but only for research purposes.

The study was initially supposed to run for three years, however at the end of the second year, funding was terminated due to the failure to secure sufficient participants. Despite this, the defendant physician continued to recruit participants in the third year, including Mr. Stirrett. During Mr. Stirrett’s followup angiogram as part of the study, he suffered a dissection of his artery, and died two days later.

The trial proceeded before a jury based on allegations of negligence and breach of fiduciary duty. The jury found one of the defendant doctors breached the standard of care in several respects. However, it found the plaintiff had not made out the causation element of the negligence action. The trial judge then went on to rule that pursuant to the Courts of Justice Act of Ontario, he, rather than the jury, had jurisdiction to decide whether the defendant had breached his fiduciary duty as this was an equitable issue.

The trial judge ruled that not all duties owed by a doctor to a patient rise to the level of a fiduciary duty, but the patient does not have to be exploited (as in Norberg) for a breach to occur. This was medical research on humans where the patient to doctor relationship becomes participant to researcher. The court concluded that the defendant physician had a fiduciary duty to Mr. Stirrett which was to comply with the consent form as drafted and agreed to, which required the doctor to inform participants of new information about the study that might influence their willingness to continue in the study.

While the changes made to the study in terms of number of participants may not have been significant or changed the risk of harm to Mr. Stirrett, it was not for the doctor to decide. He was obligated to pass these changes on to Mr. Stirrett to permit him to re-evaluate his decision to participate and had he done so, he would have been protected from liability. By not providing the information about the study that varied from the consent form signed by Mr. Stirrett, the court found that the physician had breached his fiduciary duty. The alternate pleading of a breach of fiduciary duty provided a route to receiving an award where a negligence claim was unsuccessful.

Conclusion

The principles of fiduciary law will likely continue to impact the rights of patients and the professional liability of physicians. Fiduciary duty claims, where applicable, may confer certain advantages to plaintiffs, especially in situations where economic losses are not substantial, and offer another reason to think outside the box when drafting pleadings.

This article was originally published in the Verdict. You can read the PDF on our Publications page.


1. Gerald B. Robinson & Ellen I. Picard, Legal Liability of Doctors and Hospitals in Canada, 5th ed (Toronto: Thomson Reuters, 2017) at 5.
2. [1987] 2 S.C.R. 99 at 134
3. [1992] 2 S.C.R. 226
4. Ibid at pg. 269
5. Ibid at para 63
6. [1992] 2 S.C.R. 138
7. Ibid at para 22.
8. 1999 CanLII 5986 (BCSC)
9. Norberg, supra note 3 at para 98
10. See McDonald-Wright (Litigation Guardian of) v. O’Herlihy, [2005] O.J. No. 1636
11. Picard pg. 124
12. Ibid
13. [1980] 2 S.C.R. 880
14. Picard pg. 132
15. Picard pg. 133
16. Picard pg. 130
17. [1997] 2 S.C.R. 539
18. 1965 CanLII 439 (SK CA)
19. Ibid at para 29.
20. 2018 ONSC 2595

Filed Under: Health News, Legal News, The Verdict - Law Journal

Vaginal birth vs. Caesarean section

Wednesday, October 16, 2019 By Andrea Donaldson

Does method of delivery impact babies’ health?

According to a recent UK study – the largest study in the field to date – babies born by caesarean section have dramatically different gut bacteria compared to those born vaginally.

For the past decade, scientists have been fascinated by the influence of the bacteria in our gut on our overall health. We have as many microbes – bacteria, viruses, and fungi – living on our bodies, as we have human cells. Most of these microbes live in our gut, and are known collectively as our microbiome. The functioning of the microbiome can be related to many health concerns, such as allergies, obesity, and inflammatory bowel disease. One big question that has remained unanswered is how we got those original microbes at the beginning of our lives.

The study, entitled “Baby Biome” and published in the journal Nature, assessed how a baby’s microbiome forms when they leave a sterile womb and enter the world. The study found that vaginally-delivered babies got most of their early gut bacteria from their mother. On the other hand, babies delivered by caesarean-section had high levels of bacteria found in the hospital environment, such as Enterococcus, Enterobacter, and Klebsiella.

Previous studies have shown evidence that babies born by c-section are at a higher risk of some immune-related disorders, such as type 1 diabetes, allergies, and asthma. A leading theory is that the bugs that first colonize our gut are crucially important to training our immune system to differentiate between harmful and helpful bacteria and viruses. Differences between the microbiomes of babies born vaginally or via c-section faded over time and were largely the same by their first birthdays; however, the subtle health differences exist throughout their lifetime. The hypothesis, then, is that the moment of birth acts as a sort of thermostat moment which sets the immune system for future life.

Are there other ways to alter a baby’s microbiome?

Although the method of delivery had the biggest impact on babies’ microbiomes, antibiotics and whether or not mothers breastfed their babies also altered gut bacteria. In the future, it may be possible to give c-section babies a cocktail of good bacteria at birth so that their microbiomes would start on the right path.

The authors of the study also genetically sequenced the gut microbiomes of mothers and compared them to their babies, and found that the microbiomes of vaginally-born infants’ guts were not determined by bacteria found in the vaginal canal, as some researchers had previously thought. Rather, the bacteria that passed from mother to baby were from contact with the mother’s feces during labour. This finding calls into question the controversial practice of “vaginal seeding” in which doctors smear some of the mother’s vaginal fluid on babies born by caesarean section to mimic the vaginal birth experience. There is no evidence that the process works, and has the potential to expose babies to infectious pathogens.

What should pregnant women do?

Although these finding are groundbreaking, doctors say they should not deter women from having a caesarean section. According to Dr. Alison Wright, the vice president of The Royal College of Obstetricians and Gynecologists in the UK, “In many cases, a Caesarean is a life-saving procedure, and can be the right choice for a woman and her baby. The exact role of the microbiome in the newborn and what factors can change it are still uncertain, so I don’t think this study should deter women from having a Caesarean.”

The study showed that, over time, the impact of delivery method lessened and breastfeeding became a more important contributor to the microbiome. Infants also receive good bacteria from other sources, such as skin-to-skin contact. Importantly, babies born by c-section don’t grow up to be dramatically different from babies born vaginally. Any differences in long-term health are subtle, and delivery via c-section does not pose seriously long-term health risks. C-sections are often employed as a means of rescuing an infant at risk of serious injury due to fetal hypoxia, intra-uterine growth restriction (IUGR), and other birth or pregnancy-related problems. The risk to the baby in failing to perform a c-section in these situations usually vastly exceed the risk that the baby may suffer some health issues due to alterations in the microbiome.

Filed Under: Health News

Do Women Have a Right to Caesarean Section?

Tuesday, October 8, 2019 By Lindsay McGivern

The issue of patients’ rights with respect to their medical decisions is always an important consideration, but one that does not often get a lot of attention. Our society, as a whole, has a great respect for the medical profession. Part of that respect is a recognition that physicians have more extensive and much deeper knowledge of medical issues and treatments than the general public. As a result, patients very frequently defer to their physicians when making medical decisions and will proceed with whichever treatment option the physician recommends. The consequence of this is that a patient’s rights to make contrary decisions are rarely considered in depth. The rights do exist, however, and physicians must abide by established rules when discussing medical treatments with their patients.

The law has long recognized individuals’ rights to self-determination. A core part of that right is a right to accept or refuse medical treatment. Battery is the “unprivileged and unconsented to invasion of one’s bodily security” (Reibl v Hughes, [1980] 2 SCR 880). The provision of medical treatment without consent is battery. So long as a patient has capacity, he or she must give consent (free from coercion or undue influence) to any medical treatment before it can be provided. A claim in battery will arise even if there is no subsequent injury. A plaintiff must simply prove that he or she did not consent to the treatment provided. Battery cases arising from medical care rarely appear among reported cases.

Consent in the medical malpractice context, however, extends beyond simple consent and battery. In medical cases, consent must also be “informed”. The theory behind the informed consent doctrine is that, in order for patients to make a meaningful decision about their medical options, the information imbalance between physicians and patients must be addressed. Physicians have an obligation to inform a patient of the nature of his or her condition, as well as the risks and benefits of the proposed treatment and alternatives (Brodeur v. Provincial Health Services Authority, 2016 BCSC 968). All material risks of a treatment op tion must be disclosed. This includes all risks that “a reasonable person, in what the physician knows or should know to be the patient’s position, would be likely to attach significance to… in deciding whether or not to undergo the proposed therapy” (Hopp v. Lepp, 1980 CanLII 14 (SCC)). Material risks includes risks of complications that are likely to occur and risks of complications that are rare but have serious consequences (such as paralysis or death). In their discussions with patients about the risks and benefits of the proposed treatment, physicians must also disclose to their patients the alternative treatments.

The informed consent doctrine is part of the law of negligence. To succeed in an informed consent case, the plaintiff must prove that the defendant owed a duty of care to the plaintiff, that the defendant breached the standard of disclosure, that “but for” the failure to obtain informed consent a reasonable person in the patient’s position would not have gone ahead with the procedure/treatment, and that the procedure/treatment caused the plaintiff’s injury. The procedure/treatment itself need not have been performed negligently to succeed in a claim based on informed consent.

Physicians are expected to know exactly what risks, benefits and alternatives are relevant to the treatment in question and will discuss it all with their patients before recommending one option or another. In some circumstances, however, the line between what alternatives must be discussed/offered and what treatments are beyond the realm of required disclosure can become quite controversial. One great example of this is childbirth.

The Society of Obstetricians and Gynecologists of Canada (SOGC), the professional body that sets guidelines for practicing obstetricians, released a Committee Opinion statement last year making it clear that informed consent must be obtained in the obstetrical realm (No. 361 – Caesarean Delivery on Maternal Request July 2018, Volume 40, Issue 7, Pages 967-971, Eman Alsayegh, MD – Toronto, ON, Hayley Bos, MD – Victoria, BC, Kim Campbell, RM – Vancouver, BC & Jon Barrett, MD – Toronto, ON). Caesarean section births are on the rise, and twenty-eight percent of the babies born in Canada in 2017 were born via caesarean section (-p. 968). As more women opt for caesarean sections, there has been significant controversy over whether physicians are required to provide elective caesarean sections with no medical indications (-p. 968).

There are situations where vaginal delivery will carry a higher than usual risk and physicians will recommend a planned caesarean section. These can include positional issues with the baby, multiple pregnancies, infections or medical concerns with the mother, scars from previous abdominal surgeries and babies showing signs of distress. Under these circumstances, the physicians are expected to outline the risks and benefits of vaginal birth and the risks and benefits of caesarean section. The patient then has a choice (with a physician likely making a recommendation). When there are no medical indications for caesarean section over vaginal birth, some physicians believe they need not offer elective caesarean sections to their patients. Often the underlying rationale for this belief is that caesarean section, like any other surgery, carries risks (including infection, blood loss, cardiac arrest, respiratory issues for the baby, reactions to anesthetic). In addition, consideration must be given to utilizing limited resources for an elective procedure when those resources are simultaneously in demand from patients with medical issues on waitlists for corrective surgeries.

Vaginal birth is not without risk. Vaginal deliveries carry a higher risk of pelvic floor damage and postpartum hemorrhage in the mother. Also, there are risks to the baby from a variety of causes which, if not treated immediately, can lead to brain tissue death. Importantly, in addition to consideration of any risks, women have a fundamental right to control what happens to their bodies. The law requires physicians to discuss the proposed treatment, its risks and benefits and any reasonable alternatives with their patients. It does not matter, legally, if the physician disagrees with the patient’s choice or believes that a different treatment would be safer, cheaper, or more beneficial. If the patient’s choice is one of the reasonable treatment options, he or she is entitled to make that choice and the physician cannot impose his or her recommended treatment. Yet, somehow, obstetrics is an area in which this informed consent process has historically been lacking. In the past, it has been acceptable to refuse a patient’s request for a caesarean section if it was not, in the doctor’s opinion, medically necessary. This practice, however, is slowly changing (Stechyson, Natalie, ‘Pregnant Women Have The Right To An Elective C-Section To Avoid Vaginal Birth, Doctors Say’).

The obligation of the medical team (doctors, nurses, midwives) is to communicate to their patients, in an understandable way, the risks and benefits of both planned caesarean section (for non-medical reasons) and of attempted vaginal delivery. The discussion of risks should include both common risks (i.e. pain after delivery) and rarer, long term consequences (brain damage, death, complications in future pregnancies, etc.).

The SOGC points out that there are currently no studies comparing the safety to mother and baby of these two methods of delivery. Studies have been done on the safety of caesarean section versus vaginal delivery but this data includes the risks associated with all caesarean sections, including those done on an emergency basis for medical crises. Some of the information from existing studies can aid in the risk/benefit discussion, but the inclusion of emergency caesarean sections in the studies likely results in higher numbers of poor outcomes from caesarean sections. What is needed are studies which only include caesarean sections that were done at the mother’s choice, without medical reasons to choose caesarean section over vaginal delivery (-p. 698).

The SOGC is clear that the discussion about elective caesarean section should be focused on the individual patient. Medical professionals should not assume that all people place the same value on the mode of delivery. They have an obligation to provide up-to-date, evidence-based information and the risk/benefit discussion needs to take into account their patient’s values, beliefs and individual needs. The physician/midwife is required to explore the patient’s reasons for the request, fears and concerns. The discussion should be culturally appropriate and the physician should respect cultural differences (-p. 967, 970).

Without diminishing the importance of medical professionals offering medical recommendations for the appropriate mode of delivery, the SOGC mandates respect for the patient’s autonomy. The mode of delivery is not to be imposed by a physician. The patient must agree with the planned method of delivery without bias or coercion. Physicians are not obligated to perform a caesarean section if they are not comfortable (for medical, ethical or other reasons) with the decision to proceed with this method of delivery. If a patient requests a caesarean section, however, the physician must either perform it, refer the patient for a second opinion or transfer her care to another physician. Physicians may not simply refuse to perform a caesarean section and force the patient to have a vaginal delivery (-p. 971).

This article was originally published in the Verdict. You can read the PDF on our Publications page.

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