Legal News

This is the second article in an 8 part series published in the Verdict law journal on medical malpractice litigation. In this article Susanne Raab reviews the law of informed consent¹, and how it has evolved over the years.

INTRODUCTION

The Supreme Court of Canada decisions of Hopp v. Lepp² and Reibl v. Hughes³  marked a shift in the law away from the medical paternalistic approach to informed consent toward a more patient-centered approach. 

The issue first came before the Supreme Court of Canada Hopp v. Lepp. In this case, the plaintiff underwent a disc operation, competently performed, which left him with a permanent disability. The plaintiff sued the orthopedic surgeon for, among other things, failing to disclose to him that this was the surgeon’s first such operation since completing his orthopedic fellowship training and failing to disclose the alternative of undergoing the operation in a larger facility.

Chief Justice Laskin, writing for a unanimous court, rejected the professional medical standard of disclosure, which essentially held that it was for the medical profession to decide what risks should be disclosed to patients, and instead held that physicians must inform their patients of risks that the “reasonable person in the position of the patient” would want to know. Laskin C.J., described the required standard of disclosure as follow:

In summary, the decided cases appear to indicate that, in obtaining the consent of a patient for the performance upon him of a surgical operation, a surgeon, generally, should answer any specific questions posed by the patient as to the risks involved and should, without being questioned, disclose to him the nature of the proposed operation, its gravity, any material risks and any special or unusual risks attendant upon the performance of the operation.”⁴

Having found the defendant surgeon properly discharged his duty of disclosure to the plaintiff, Chief Justice Laskin declined to analyze the distinction between whether the claim would be one of battery or negligence, leaving that for another day.

That day came quickly, only a few months later, in the decision of Reibl v. Hughes. In that case, the plaintiff underwent an endarterectomy, also competently performed, which resulted in him suffering a stroke causing right-sided permanent paralysis. The plaintiff alleged the surgeon failed to inform him of the risk of stroke associated with the surgery. In particular, in response to his questions about the risk of stroke, the surgeon advised him that the risk of stroke was greater if he did not undergo the surgery, but failed to advise him of his risk of stroke if he did undergo the surgery. The plaintiff alleged that had he been informed of the risk of stroke associated with the surgery, he would have deferred the surgery until after his retirement pension had vested – 18 months hence. At trial, the defendant was found liable in both negligence and battery for failing to disclose this risk of surgery. This decision was overturned on appeal. The Court of Appeal ruled out battery as a ground for liability and ordered a new trial on the negligence claim. The decision was then appealed to the Supreme Court of Canada. Chief Justice Laskin took this opportunity to clearly distinguish between claims in battery and negligence arising from alleged failure to fully disclosure medical information in the course of obtaining consent for medical care, stating that breach of a duty of disclosure of attendant risks of medical care and treatment was to be subsumed into the law of negligence and an action in battery would only be appropriate “where surgery or treatment had been performed or given to which there has been no consent at all or where, emergency situations aside, surgery or treatment had been performed or given beyond that to which there was consent”.⁵ He continued, 

[i]n situations where the allegation is that attendant risks which should have been disclosed were not communicated to the patient and yet the surgery or the medical treatment carried out was that to which the plaintiff consented … I do not understand how it can be said that the consent was vitiated by the failure of disclosure so as to make the surgery or other treatment an unprivileged, unconsented to and intentional invasion of the patient’s bodily integrity. …

[I]n my view, unless there had been misrepresentation or fraud to secure the consent to the treatment, a failure to disclose the attendant risks, however serious, should go to negligence rather than battery.”⁶

Chief Justice Laskin also re-emphasized the patient-centered test for disclosure set out in Hopp v. Lepp, supra, stating, 

[t]o allow expert medical evidence to determine what risks are material and, hence, should be disclosed and, correlatively, what risks are not material is to hand over to the medical profession the entire question of the scope of the duty of disclosure, including the question whether there has been a breach of that duty. Expert medical evidence is, or course, relevant to findings as to the risks that reside in or are a result of recommended surgery or other treatment. It will also have a bearing on their materiality but this is not a question that is to be concluded on the basis of the expert medical evidence alone. The issue under consideration is a different issue from that involved where the question is whether the doctor carried out his professional activities by applicable professional standards. What is under consideration here is the patient’s right to know what risks are involved in undergoing or foregoing certain surgery or treatment.”⁷

Together, the decisions of the Supreme Court of Canada in Hopp v. Lepp, supra, and Reibl v. Hughes, clarify that unless fraud or misrepresentation are involved in the process of obtaining consent to medical care or treatment, claims for failure to disclose material risks or alternatives to medical care or treatment are properly pled as negligence claims. The required standard for disclosure is what the reasonable patient in the position of the plaintiff would want to know, which is informed by the special circumstances of the plaintiff as well as questions asked by the plaintiff.⁸ This was expanded upon by the Supreme Court of Canada in Ediger (Guardian ad litem) v. Johnston2013 SCC 18, in which the court reaffirmed the trial judge’s analysis that the required scope of disclosure included the fact that a reasonable person in the position of the plaintiff would want to know the consequences of a given risk (rather than just a recitation of the risks with their respective statistical probabilities). In this case, the scope of disclosure imposed a duty upon the defendant obstetrician to advise the plaintiff not only that proceeding with the proposed treatment included a risk of bradycardia, but also that in the event that that risk materialized, her baby would necessarily be born with severe and permanent brain damage because of the time required to arrange for surgical back-up.

In practice, whether or not a material risk was in fact disclosed is typically an evidentiary and credibility contest with the plaintiff’s specific memory of not being told of the risk on the one hand, and the defendant physician’s evidence of his or her standard, invariable practice on the other hand, usually in the context of a vague chart entry or consent form that generally references risks having been discussed without specific reference to which risks, and often many years after the encounter. While the findings by the court will be largely fact-driven, it bears noting that a defendant’s evidence of his or her standard invariable practice has been accepted as cogent and reliable evidence by the court.⁹

THE CAUSATION TEST IN INFORMED CONSENT CASES

To succeed with any negligence action, the plaintiff must establish a causal link between the doctor’s negligence and the injury which occurred.

In the context of informed consent cases, damages are not awarded to a plaintiff simply because the defendant physician failed to disclose material risks or alternatives to medical care or treatment, but only if the plaintiff has been injured by the undisclosed risk and can establish that, but for the failure to disclose the risk, the injury would not have occurred.

There are two separate causation tests built into this analysis: 

1) The modified objective test; and 

2) The “but for” test.

THE MODIFIED OBJECTIVE TEST

In Reibl v. Hughes, Mr. Justice Laskin grappled with the competing approaches of the purely subjective test (i.e. what the patient would have done), and the purely objective test (i.e. what the reasonable patient would have done) of causation, and the evidentiary/credibility quandries associated with each. He settled on a hybrid – the modified objective test, namely, what a reasonable person in the plaintiff’s position would have done had he or she been properly informed of the material risks and alternatives to the medical care or treatment.

Consistent with the standard for disclosure, this test imports a consideration of the plaintiff’s unique circumstances. The modified objective test was reaffirmed and elaborated upon by the Supreme Court of Canada in Arndt v. Smith¹⁰, a wrongful birth case. Cory J, writing for the majority of the court, described how personal circumstances should be appropriately considered in the application of the modified objective approach:

[i]n my view this means that the “reasonable person” who sets the standard for the objective test must be taken to possess the patient’s reasonable beliefs, fears and expectations. Further, the patient’s expectations and concerns will usually be revealed by the questions posed. Certainly, they will indicate the specific concerns of the particular patient at the time consent was given to a proposed course of treatment. The questions, by revealing the patient’s concerns, will provide an indication of the patient’s state of mind, which can be relevant in considering and applying the modified objective test.”¹¹

The reality is that most claims based on lack of informed consent fail on this branch of the analysis because of the difficulty in convincing the court that the reasonable person in the plaintiff’s position would have declined the recommended medical treatment had he or she been properly informed of the attendant risks. The difficulty arises from the level of deference and trust afforded to medical professionals by the typical, reasonable patient. Simply put, patients tend to follow their physician’s advice. This observation was made by Chief Justice McEachern (as he then was) in Diack v. Bardsley who concluded that, “[l]ike most of our citizens who consult professionals, I think he would have decided to go ahead with the procedure which was recommended.”¹² Indeed, medicine is a complex discipline which often exceeds the understanding of the average patient, and physicians in our society enjoy an elevated status and level of respect. When a physician recommends a certain course of action, the patient is often ill suited to second guess the wisdom of that recommendation, and simply assumes the recommended medical treatment must be the best possible option available in the circumstances. Defence counsel typically lead expert evidence of the frequency with which patients simply follow their physicians’ recommendations, and while the courts have made it clear that these cases are not determined by expert evidence, this type of evidence is persuasive, and is very effective in defending an allegation of lack of informed consent. For these reasons, there typically must be something unique about the plaintiff in order to persuade the court that the plaintiff would have acted contrary to his or her physician’s recommendations. A good example of this is found in the case of Cojocaru (Guardian ad litem) v. British Columbia Womens Hospital, 2009 BCSC 494¹³ in which the Plaintiff, who was of Romanian descent, had experienced trauma surrounding a malformation affecting her first child in a culture which was not very accepting of such differences. This heightened her concern to ensure everything possible was done to avoid problems with the health of her second child, making her unusually risk adverse, and unlikely to accept the risk associated with the recommended proposed medical care. 

THE “BUT-FOR” TEST

It is also necessary to prove, on a balance of probabilities, that failure to inform the plaintiff of a material risk or alternative caused the plaintiff’s injury. Simply put, it is not enough to prove that the reasonable patient in the plaintiff’s position would have refused (or postponed) the surgery had they been properly informed of the materials risks, benefits and alternatives of the proposed medical treatment or procedure. It is also necessary to prove, as in all medical negligence cases, that “but for” the medical treatment or procedure, the injury would not have occurred.

While this aspect of the test does not arise in all informed consent cases, it is important to give careful consideration to its effect in certain factual scenarios. For example, the alternative of postponing the medical care or treatment gives rise to some interesting issues, especially when the effect of postponement may have implications for the injury suffered. This was the argument in the seminal case of Reibl v. Hughes where the plaintiff successfully argued that had he been advised of the risk of stroke associated with the surgery, he would have postponed it until after his retirement pension had vested. While he did not argue that but for the failure to disclose the material risk of surgery he would not have suffered the stroke, he did argue that this caused the loss of his retirement pension. The question arises, if there is, for example, a 10% risk of an injury occurring during surgery, can a plaintiff argue that had the surgery been postponed to a later date, the chance of it occurring during this later surgery was only 10% and therefore does not meet the threshold for causation?¹⁴ Whether or not such a claim would succeed in Canada would be very fact-driven and depend upon the specific mechanism of injury, in particular whether the risk was related to patient, physician or facility related factors, and the statistical or epidemiological evidence relating to whether the outcome would have been different had the surgery been performed at a later date.

Another example is the case of Cojocaru (Guardian ad litem) v. British Columbia Womens Hospital, 2013 SCC 30 in which it was found that while the defendant failed to disclose the risks of induction, and the plaintiff argued she would have declined induction had the risks been disclosed, there was no evidence upon which to find it was in fact the induction which caused the injury to the infant plaintiff (although the plaintiff was successful on lack of informed consent in relation to the VBAC). The Supreme Court of Canada held that the but-for test to causation had not been met, stating:

[98] …The trial judge failed to conduct a separate causation analysis for the failure to obtain informed consent to induction, as distinct from the failure to obtain informed consent to VBAC. In my view, there is no evidence to support a causal relationship between the induction and the harm suffered. 

[99] There was no evidence to suggest that the alternative to induction — and, thus, the course of action that would have been followed had induction been refused — was a scheduled caesarean section. The most that can be said is that if Ms. Cojocaru had refused induction, her labour would not have been induced. The question is what harm flowed from the induction with prostaglandin gel. 

[100] The trial judge neither explicitly not implicitly found that the prostaglandin gel over-stimulated the uterus and caused the uterine rupture. Although there is evidence to support his finding that induction increases the risk of uterine rupture, it does not go so far as to show a causal relationship between the induction and the rupture in this case.

[101] I would not sustain the finding of liability against Dr. Yue on this basis.”¹⁵

CONCLUSION

In conclusion, cases based on lack of informed consent are highly fact-driven cases which are to be assessed on the basis of what a reasonable person would want to know, informed by any relevant unique circumstances of the plaintiff, and including a discussion of the consequences of those risks, and what a reasonable person in the position of the plaintiff would have done had they been properly informed. While this more patient-centered approach to informed consent in health care arose four decades ago out of a greater recognition and respect for patient autonomy, a review of the case law shows that these cases are rarely successfully, in part due to the continued deference patients afford to their care providers.

The full article can be viewed here on our publications page.

END NOTES

1. The scope of this discussion is limited to competent adults.
2. [1980] 2 S.C.R 192
3. [1980] S.C.R. 880
4. Hopp, Supra note 2 at 210. 
5. Reibl, Supra note 3 at 890.
6. Reibl, Supra note 3 at 891.
7. Reibl, Supra note 3 at 894
8. Also see Health Care (Consent) and Care Facility (Admission) Act RSBC 1996 C. 181 s. 6
9. Belknap v. Meakes (1989), 1 C.C.L.T. (2d) 192.
10. [1997] 2 SCR 539
11. Ibid, at 550.
12. 1983 CanLII 541 (BC SC) at para 47
13. Aff’d 2013 SCC 30
14. See Chester v. Afshar [2004] UK House of Lords 41.
15. Cojocaru at para 98-101.

This is the first article in an 8 part series published in the Verdict law journal on medical malpractice litigation. In this article, Andrea Donaldson reviews the foundation principles of the duty of care and considers these principles in the context of a number of cases. The Doctor-patient relationship is a very important part of anyone.

1. To succeed in an action for medical negligence, a plaintiff must prove four essential elements:
2. The defendant owed the plaintiff a duty of care; 
3. The defendant breached the standard of care;
4. The plaintiff suffered an injury or loss; and
5. The defendant’s conduct was the actual and legal cause of the plaintiff’s injury.

One of the first issues the plaintiff’s counsel must consider before commencing a medical malpractice action in which health care providers owed their client a duty of care. A duty of care can include specific duties such as: “the duty to assess; the duty to diagnose; the duty to communicate; and the duty to refer”. If a duty of care cannot be established, a medical negligence action cannot succeed. A doctor’s duty of care to his or her patient arises from the nature of the doctor-patient relationship.

Originally, the medical profession was a “common calling” like that of barbering or inn-keeping. Certain expectations were placed on those who professed such a calling, including a legal duty to use proper care and skill. Therefore, the doctor’s duty to his or her patient arose from the doctor’s status as a member of the medical profession. Later, with the development of contract law, this original basis of liability was replaced by a contractual one: the patient’s request for treatment constituted the offer and the acceptance was the doctor’s commencement of care.

In the past two centuries, most actions against doctors have been based on negligence, with the doctor’s conduct being judged by tort principles. Now, it is clear that a duty of care exists independently of any contract between patient and doctor. “For example, there is a duty to use reasonable skill, care, and judgment when a doctor attends on an unconscious patient who cannot be said to have voluntarily submitted to care.” Similarly, a doctor has a duty to respect a patient’s refusal of treatment, even if they cannot communicate this at the time of the doctor assuming care.

The doctor-patient relationship has long been recognized as one of the traditional categories of fiduciary relationship, a relationship in which one party (the patient) places special trust, confidence, and reliance in, and is influenced by, another (the doctor) who has a fiduciary duty to act for the benefit of the patient. The fiduciary nature of the doctor-patient relationship has been described by the Supreme Court of Canada as “the most fundamental characteristic of the doctor-patient relationship”, which has trust, not self-interest, at its core.

When Does The Duty of Care Arise?

The duty of care arising from the doctor-patient relationship is not limited to doctors but applies to all health care professionals (nurses, dentists, chiropractors, physiotherapists, massage therapists, psychologists, etc.). Typically, where a doctor has participated in the care of a patient, a duty of care arises. This includes telephone consultations and situations where a specialist reviews the patient’s imaging or blood or tissue samples, but never actually meets the patient (such as a radiologist, lab technician, or pathologist).

The number of health care professionals that may have participated in the care of a plaintiff has implications for naming defendants when commencing an action. Take, for example, a claim for a delayed diagnosis of cancer. The plaintiff may have a claim against his or her family doctor if the doctor did not follow up with a test result as required. Consider, however, all of the other health care professionals that were involved in the care of this patient. Was the imaging misread by the radiologist? Was the sample properly analyzed by the lab technician? Are there other support staff involved in providing the services whose names never appear in the records?

Even if a physician does not assume care, a duty of care may arise if they have an ethical obligation to render assistance. In Egedebo v. Windermere District Hospital Assn., the plaintiff was brought to the emergency department suffering from lack of feeling in his legs and a burning feeling in his chest. The ER doctor was busy with an operation and unable to treat the plaintiff until two hours after his arrival in hospital. During this time, another doctor was in hospital and made aware of the plaintiff’s condition, but he stated that he was “not on call” and felt that the plaintiff should wait and be seen by the ER doctor. Unfortunately, the plaintiff developed permanent triplegia due to a ruptured vascular malformation in his spinal cord before being seen by the ER doctor. The court concluded that the available doctor had a duty of care to the plaintiff based on his ethical obligation to assist when he knew, or ought to have known, that no other doctor was available.

Egedebo makes it clear that a doctor cannot avoid owing a duty of care to a patient by declining to see the patient. Consider, however, the case of Morrison v. Hicks in which the court did not find that the defendant doctor who declined to provide care owed a duty of care to the plaintiff in a similar situation. In Morrison, the plaintiff, who was severely injured in a motor vehicle accident, was under the care of the ER doctor. The plaintiff’s mother, concerned about the care her son was receiving and a potential injury to his neck, happened to see his family doctor in the emergency room and asked him to see her son. The doctor explained that he could not see her son right away, that the ER doctor was looking after him, and that he would assume care once the plaintiff was admitted to award. After the plaintiff was transferred to intensive care, he was found to be quadriplegic. The plaintiff brought an action against the ER doctor and his family doctor, among others. On the issue of whether a duty of care arose with respect to the plaintiff’s family doctor, the court found that he did not owe the plaintiff a duty of care at the relevant times, as he did not undertake to provide care until the plaintiff was admitted to award. Although very similar factually, Morrison can be distinguished from Egedebo on the basis that another doctor had already assumed the care, so that the subsequent doctor was not obligated to render assistance.

As the cases above illustrate, the existence of a duty of care is not always obvious. A thorough understanding of when a duty of care arises is essential to ensure that potential defendants are not missed when drafting pleadings, potentially undermining the plaintiff’s claim.

Special Circumstances

The courts have considered whether a physician owes a duty of care – and the extent of that duty – in a number of special circumstances, each of which is examined below.

Does a Doctor Owe a Duty of Care to an Unborn Baby?

A long line of authority exists that states that if a doctor or nurse is negligent in the prenatal care or delivery of a baby, resulting in the baby suffering an injury, the doctor or nurse will be found liable. The principle is that doctors and nurses owe a duty of care to the unborn baby not to cause harm, with the cause of action crystalizing when the baby is born alive. If the baby is not born alive (for example, in a situation involving an abortion), no duty of care arises. If the baby is born alive with injuries due to prenatal or perinatal care, or botched abortion, there is a duty to that baby once it is born.

Doubt was cast on the principle that there is a duty of care owed to an unborn baby in the case of Paxton v. Ramji. In that case, a woman was prescribed Accutane, an acne medication known to cause birth defects, and she became pregnant shortly after starting the medication. The child was born with severe disabilities as a result of the mother taking the medication around the time of conception, and allegations of negligence were made against the doctor for failing to warn the woman that she should take additional precautions to ensure that she did not become pregnant. At trial, the judge found that the doctor owed a duty of care to the unconceived baby, but that he met the standard of care. The Ontario Court of Appeal dismissed the child’s claim on the basis that the doctor owed no duty of care to an unconceived baby, as this would inevitably conflict with the doctor’s duty of care to the woman. This is somewhat in contrast to the analysis in the line of authority mentioned above which clearly establishes that a doctor owes a duty of care to a baby subsequently born alive. These cases make no finding of a conflict in caring for the woman and her unborn baby, with the duty to the baby crystalizing when born alive.

At numerous points in the Paxton judgment, the Court of Appeal casts the issue as whether a doctor owes a duty to a future child who is “conceived or not yet conceived” at the time of the negligent act. As a result, defence counsel attempted to rely on Paxton for the proposition that health care professionals do not owe a duty to an existing unborn baby subsequently born alive. This proposition was subsequently rejected by the courts. The law is that doctors, nurses, and other health care professionals owe a duty of care to a baby subsequently born alive, and Paxton should only be read as applying to the specific facts of the case (that is, to a baby not yet conceived).

Does a Doctor Owe a Duty of Care During an IME?

A plaintiff may undergo an independent medical examination in the context of personal injury litigation, life insurance application, or employment. The doctor’s duty in these situations is limited. The doctor does not have a duty to provide medical care or treatment and there is no duty to act in the plaintiff’s best interests in terms of the opinion that doctor provides (e.g. for the purpose of insurance, disability benefits, or litigation), but is required to “take reasonable steps to ensure that the patient understands the nature and extent” of that responsibility to the third party. 

If the doctor causes injury to the patient during the assessment, the doctor can be liable as the duty not to cause harm to the patient still exists. In Branco v. Sunnybrook & Women’s College Health Sciences Centre, the plaintiff, who was receiving disability benefits, was directed by his employer to attend the defendant hospital for an IME to assess whether he was physically capable of performing the job he was then employed at in light of his complaints of neck and chest pain. The doctor who conducted the IME reported to the plaintiff’s employer that the plaintiff was suffering from mechanical back pain and associated symptoms. He considered the plaintiff to have a favorable prognosis for returning to work and recommended he receive physical therapy, an MRI of the spine and consultation with a neurosurgeon. The plaintiff alleged that the doctor failed to take into account his symptoms and did not have enough medical information before him to conclude that he could return to work. He also alleged that the physical activities performed during the IME caused him pain and suffering. The court concluded that “the primary duty owed by the doctor was to the plaintiff’s employer and the only duty owed to the plaintiff was to do no harm to him in the course of conducting the IME” and concluded that the doctor did not, in fact, harm the plaintiff.

Does a Doctor Owe a Duty of Care at the Scene of an Accident?

In situations where doctors or other medical professionals provide emergency assistance to a person at the scene of an accident and the care is provided voluntarily and gratuitously, they are protected by statute. In BC, the Good Samaritan Act is aimed at encouraging medical professionals to provide emergency assistance, and precludes a finding of liability unless the aid provided was grossly negligent.

Does a Doctor owe a Duty of Care to a Third Party?

The issue of whether a doctor owes a duty of care to a third party often arises in the context of a duty to warn someone, other than the doctor’s patient, of a risk of harm. The landmark case is Tarasoff v. Regents of the University of California, in which a psychiatric patient disclosed his intention to kill his former girlfriend. The patient carried out his plan, and the psychiatrist was found liable for failing to warn the girlfriend. The Supreme Court of California held that it did not matter that Ms. Tarasoff was not a patient of the psychiatrist, as “once a therapist does in fact determine, or under applicable professional standards reasonably should have determined, that a patient poses a serious danger of violence to others, he bears a duty to exercise reasonable care to protect the foreseeable victim of that danger.” The court noted that, as a general rule, one person does not have a duty to control the conduct of another, nor a duty to warn those who may be endangered by such conduct, unless the defendant bears some special relationship to the dangerous person or to the potential victim. The court found that in the present case, the relationship of a doctor to a patient was suficient to support a duty to exercise reasonable care for the benefit of third parties.

Tarasoff has only been considered in one Canadian case, that of Wenden v. Trikha, which “involved a voluntary psychiatric patient who absconded from hospital, ran a red light and injured another motorist. The motorist sued the hospital and the attending psychiatrist, as well as the patient, and the court discussed the Tarasoff decision at some length.” For a doctor to have a duty to warn a third party, the court stated that “two conditions must be satisfied. First, the relationship between the doctor and the patient must be such as to impose a duty on the” doctor to control the conduct of the patient. “Secondly, suficient “proximity” must exist between the doctor and the third-party in danger.” Ultimately, the court concluded that although the psychiatrist and hospital owed a duty of care to the plaintiff in the circumstances, neither could have foreseen that the patient would escape and drive dangerously, and dismissed the claim against them.

Duty of Care in Novel Situations

In considering whether a duty of care applies to a doctor or any health care professional in a novel situation, the test, based on the House of Lords case of Anns v. Merton London Borough Council, and adopted by the Supreme Court of Canada in Cooper v. Hobart, is whether there is a suficiently proximate relationship, and whether it is reasonably foreseeable that negligence by the doctor may cause harm to the other party; and there are residual policy considerations that may negate the imposition of a duty of care.

“The first stage encompasses whether there is a prima facie duty of care by analyzing reasonable foreseeability and whether there is a suficiently close and direct relationship of proximity, including policy considerations that affect the relationship. The second stage considers whether, despite finding a prima facie duty of care, there are residual policy reasons to reject a duty of care.” 

In Paxton, discussed above, the court chose to analyze the doctor’s relationship to a baby not-yet conceived as a novel situation. The court sought to determine whether the doctor and a “future child” are in a “close and direct relationship” that ought to impose a duty of care on the doctor to the future child. The court found that a finding of a “duty of care to a future child of a female patient, the doctor could be put in an impossible conflict of interest between the best interests of the future child and the best interests of the patient” such that a duty should not be imposed. This is an interesting conclusion, considering that a duty to an existing unborn baby subsequently born alive, has long been accepted. Paxton can be distinguished, however, on the basis that the duty in question was from a doctor to an unconceived fetus. Although it was not necessary to conduct the second stage of the Anns test, the Court concluded that even if a relationship of sufficient proximity had been found, residual policy considerations would weigh against the imposition of such a duty as this would affect the doctor’s existing legal obligation to his or her patient, and recognized that the proposed duty would have implications for society as a whole, impacting the medical and legal right of a woman to abort a fetus, for example. Some commentators have critiqued the court’s reasoning in this judgment.

Conclusion

A duty of care arises whenever there is a relationship between a patient and health care provider. As the cases discussed above illustrate, however, the existence of a duty of care is not always obvious, and determining whether there is a duty of care is largely a fact-driven analysis.

The importance of carefully analyzing the duties owed to a patient cannot be overstated. A detailed review of all of the plaintiff’s health care providers and the plaintiff’s relationship to each of them is necessary to ensure a potentially important defendant is not left out, thereby running the risk of undermining the plaintiff’s claim.