The Verdict - Law Journal

This is the fourth article in our 8 part series published in the Verdict law journal on medical malpractice litigation. Even if a plaintiff has obtained some expert evidence critical of the defendant’s care, this will not necessarily lead to a finding of fault. In this article, Andrea Donaldson reviews a number of common defenses to a claim of that the defendant breached the standard of care, namely that the defendant followed an approved practice, that he or she followed one of two accepted schools of thought, or that he or she exercised his or her clinical judgment. The analyses of the courts as to how these defenses apply help to illustrate why so few medical malpractice cases that go to court are decided in favor of the plaintiff.

PASSIVE VS. ACTIVE DEFENSES

As discussed in our previous articles, a plaintiff in a medical malpractice action must prove all necessary elements of a claim to succeed: the existence of a duty of care, that a breach of that duty occurred, and that the injury in question was caused by the defendant’s breach.

Commonly, a plaintiff will have adduced some evidence on each element of the claim, and a defendant will attempt to discredit the plaintiff’s case by introducing competing expert evidence and attacking the plaintiff’s claim by techniques such as cross- examination. ¹ If a plaintiff has adduced no evidence on one or more essential elements, the defendant can take steps to have the case dismissed (either by bringing a summary trial application or a non-suit motion at the conclusion of the plaintiff’s case) as the plaintiff has not made out a prima facie claim. These situations can be classified as “passive” defenses as they involve attacking the plaintiff’s claim by undermining one or more necessary elements. ²

So called “active” ³ defenses to a claim of a breach of the standard of care include:

a)  That the defendant followed an approved practice that is generally followed by members of the profession;
b)  That the defendant followed one of two accepted schools of thought; and
c)  That the defendant exercised his or her clinical judgment and therefore cannot be at fault.

Often, a defendant in a medical malpractice action will rely on one of these active defenses to defend his or her conduct. Each of these active defenses is discussed in more detail below.

APPROVED PRACTICE

The defense of approved practice involves an attempt to prove that the practice or procedure followed was generally approved of and used by members of the defendant’s profession at the time in question, and therefore ought not to be considered negligent. ⁴ For many years, the scope of the defense of approved practice was unclear, with some cases finding that it was conclusive evidence of lack of negligence ⁵ and others finding that it was only a rebuttable presumption. ⁶  The Supreme Court of Canada addressed the issue in ter Neuzen v. Korn. ⁷

Ter Neuzen involved a patient who had contracted HIV through infected sperm used in an artificial insemination (AI) program. The patient claimed that the defendant physician breached the standard of care by failing to be aware of the risk of HIV infection from AI and failing to screen donors for sexually transmitted diseases. The defendant led expert evidence that his practice was in keeping with the practice across Canada, and specifically that his process of recruiting and screening donors was in accordance with national standards. At the time in question, AI was not seriously considered by the general medical community to put anyone at risk of being infected with HIV.

The court confirmed the rule that “[i]t is generally accepted that when a doctor acts in accordance with a recognized and respectable practice of the profession, he or she will not be found to be negligent.” ⁸  This is because the medical profession as a whole is assumed to have adopted procedures which are in the best interests of patients and are not inherently negligent, and courts do not ordinarily have the expertise to tell professionals that they are not acting appropriately in their field.

The court, however, made room for certain situations where the standard practice itself may be found to be negligent. Writing for the court, Justice Sopinka stated that “where the standard practice is ‘fraught with obvious risks’ such that anyone is capable of finding it negligent, without the necessity of judging matters requiring diagnostic or clinical expertise” ⁹ or where “the practice does not conform  with basic care which is easily understood by the ordinary person who has no particular expertise in the practices of the profession,” ¹⁰  it is open to the court to find the practice, and therefore the defendant, negligent. These two conditions – that the practice is fraught with risk and that this can be easily understood by an ordinary person – rarely appear together and lead to a finding that an accepted practice is negligent. ¹¹

Anderson v. Chasney ¹² was cited in ter Neuzen as an example of where the standard practice of the profession was found to be negligent. In that case, a young boy died of suffocation from sponges left inside his nasopharynx following tonsilladenoidectomy surgery. The sponges used during the surgery did not have strings attached so that they could easily be retrieved, even though that product was available. The surgeon presented evidence at trial that it was not his practice, nor the practice of the hospital, to use sponges with strings or to have nurses count the sponges to ensure removal, and the case was dismissed. The Manitoba Court of Appeal reversed the trial decision, finding that the surgeon took an unnecessary risk by failing to use one of the two methods available.  In the court’s view, these precautions were within the understanding of the trier of fact and were sufficient to determine negligence. The court in ter Neuzen cited Anderson as an example of a case “where there are obvious existing alternatives which any reasonable person would utilize in order to avoid a risk” ¹³ and where the failure to adopt such measures could result in the finding of negligence notwithstanding  that the defendant followed the prevailing practice.

To rely on a defense of approved practice, the defendant must compare the treatment or conduct in question to the knowledge that ought to be reasonably possessed at the time, and the court must not judge the defendant too harshly with the benefit of hindsight. ¹⁴ Therefore, a procedure that was performed several years ago will not be viewed in light of medical advances or changes in practice that have occurred between the time of treatment and the time of trial, but a doctor who fails to keep up with advances may be found negligent. In McCormick v. Marcotte, ¹⁵ the plaintiff suffered a broken femur following a motor vehicle accident. He was taken to hospital and seen by the defendant physician. The defendant consulted an orthopedic surgeon who advised a procedure of skin traction followed by insertion of an intramedullary nail. The defendant was not qualified to perform the recommended surgery and performed another procedure that had since fallen into disfavour. The plaintiff suffered an injury which was a known risk of the obsolescent procedure performed, and the defendant was found negligent.

To rely on the approved practice defense, the onus is on the defendant to show that his or her practice conformed to that approved by the profession at the time. Expert evidence is essential to establish the defense, which is open to the plaintiff to rebut. ¹⁶

TWO SCHOOLS OF THOUGHT

The “two schools of thought” defense is closely related to the approved practice defense and provides a scope for disagreement and differing views or approaches among doctors. The rationale for the defense, as stated by the Supreme Court of Canada in Lapointe v. Hopital Le Gardeur, ¹⁷ is that courts do not have the expertise to choose between two schools of thought which are well-founded medically and seem equally reasonable. A situation involving two schools of thought, however, does not necessarily arise simply because a defendant adduces some evidence contradicting the plaintiff’s evidence on the standard of care. Expert evidentiary conflicts occur in almost every case, and just because the evidence is divided does not mean the plaintiff must fail. ¹⁸

The Maynard v. West Midlands Regional Health Authority ¹⁹ decision of the House of Lords is often cited for the proposition that “in the realm of diagnosis and treatment, negligence is not established by preferring one respectable body of professional opinion to another.” ²⁰  This is often argued by defendants to necessitate dismissal of an action where there is disagreement amongst the experts as to whether the defendant breached the standard of care.

Maynard was first considered in Canada in Brain v. Mador. ²¹ At trial, the defendant urologist was found negligent in performing a vasectomy on the plaintiff too soon after the plaintiff had an episode of epididymitis.  The defendant,  as well as three other highly qualified urologists, gave evidence at trial. Conflicting opinions were expressed by the expert witnesses as to whether a reasonably careful urologist should have operated so soon after the infection.

The defendant appealed on the basis that the trial judge erred in preferring one responsible body of professional opinion over another and relied on the Maynard decision. The Court of Appeal noted that Maynard goes on to state that “[f]ailure to exercise the ordinary skill of a doctor is necessary” ²² to establish that the defendant breached the standard of care, which is consistent with the test applied in Canada. The court in Brain noted that professional opinions expressed have an important bearing on the determination of whether the standard of care has been met, but it is for the trier of fact to weigh the conflicting testimony and ultimately  assess the weight to be given to the evidence.

The law on competing schools of thought was thoroughly dis- cussed by the Ontario Superior Court in Crawford v. Penney. ²³ The case involved a claim for injuries sustained by the plaintiff during her birth. The pregnancy of the plaintiff’s mother, Ms. Crawford, had been managed by Dr. Penney. During the pregnancy, Ms. Crawford experienced rapid weight gain, elevated blood pressure, and she was noted to have protein in her urine. Dr. Penney also managed Ms. Crawford’s labour and delivery, which was induced with oxytocin. After the baby’s head was delivered at 9:55 pm, shoulder dystocia was encountered. Birth did not occur until 10:10 pm, resulting in 15 minutes of oxygen deprivation to the baby. The trial judge found that the baby suffered hypoxic ischemic encephalopathy caused by shoulder dystocia due to excessive birth weight caused by untreated diabetes in pregnancy, and that the delay during delivery resulted in a period of acute near-total asphyxia.

The trial judge found that Dr. Penney’s overall management of the pregnancy involved a failure to properly  assess the risk factors associated with the pregnancy as well as an unrealistic view of his own ability to handle its management, including delivery. The judge concluded that he had breached the standard of care notwithstanding expert evidence led on behalf of Dr. Penney that he had acted in accordance with accepted practice.

The trial judge found that expert evidence is subject to the same process of being weighed and assessed against all the other evidence as evidence from lay witnesses is, and that expert evidence that the defendants acted in accordance with the standard of care does not necessitate dismissal of the action. The court’s function is to evaluate conflicting testimony, including expert testimony, and determine the facts he or she accepts by proof or inference. Expert evidence must be weighed in accordance with such findings of fact and in accordance with consideration of the reliability of such opinion evidence. The court found that there is no necessary dismissal of a medical negligence claim simply because honest and competent experts disagree over a doctor’s diagnosis and treatment. ²⁴

Unfortunately, there are a number of BC decisions that suggest that as long as the defendant adduces some evidence to the contrary, then they have established competing schools of thought and the plaintiff’s claim must fail. Brimacombe v. Mathews ²⁵ involved an infant who had suffered a hypoxic ischemic injury during labour and delivery. The trial judge found the defendant, Dr. Mathews, negligent for failing to apply traction to hasten the birth of the infant plaintiff during a breech vaginal delivery. The BC Court of Appeal did not agree, finding that the decision to apply traction or not represented two competing schools of thought among the plaintiff and defense experts, and ordered a new trial on this and other grounds.

Fairley v. Waterman ²⁶ involved the interpretation of fetal heart monitoring strips and what needed to be done in response. The primary issue in the case was whether there were earlier signs of compromise, or at least sufficient uncertainty about the baby’s condition, that required the defendant to intervene earlier than he did. The court found that the plaintiff had, at best, established that there are two schools of thought in respect of the interpretation of the fetal heart monitoring strips and the required action, and dismissed the plaintiff’s claim:

In circumstances where there are two competing and acceptable schools of thought the law is quite clear that adherence to either school (i.e. non-intervention versus intervention) is an acceptable standard of care, and a simple clinical misjudgment cannot amount to negligence. ²⁷

More recently, O’Connor v. Wambera ²⁸ was a case involving a teenage girl who suffered a hemorrhagic stroke due to an undiagnosed arterio venous malformation (“AVM”). She brought a claim against her pediatric neurologist, alleging that she was negligent in failing to order brain imaging which would have diagnosed the AVM. The court accepted that the opinions of the defendant’s experts, who opined that her differential diagnosis and follow up was appropriate, “represented one accepted school of thought as to the standard of care,” ²⁹ and therefore concluded that the defendant had met the requisite standard.

The case of Kita v. Braig ³⁰ offers a genuine example of a defendant adhering to one of two acceptable schools of thought. The plaintiff, Mr. Kita, suffered from chronic sinusitis, and when no conservative treatment was successful, he underwent an antrostomy – the making of an opening between the sinus and the nose. One of the known risks of antrostomy is a hemorrhage. If hemorrhage does occur, packing or cautery is performed. If these fail to control the hemorrhage, the next step is to perform surgery to stop the flow of blood to the site of the hemorrhage.

In Mr. Kita’s case, the antrostomy resulted in significant hemorrhaging which was not alleviated by packing or cautery. The defendant Dr. Braig, an otolaryngologist, recommended ligating the carotid artery to stop the flow of blood to the site of the hemorrhage, which Mr. Kita accepted. Dr. Braig ligated the carotid artery approximately 1.5 cm above the carotid bulb, leaving a stump of the artery. Following the procedure, Mr. Kita suffered a stroke.

At trial, the court accepted Mr. Kita’s contention that the most probable source of the embolus causing the stroke originated in the stump of his external carotid artery following the ligation. Mr. Kita’s expert neurosurgical evidence was that the carotid artery should have been ligated flush to the bulb, and had that been done, the stroke would not have occurred. Conversely, Dr. Braig adduced expert evidence supporting his method as that which was commonly practiced within the otolaryngology community.

The BC Supreme Court found that the conflicting medical evidence as to the appropriate standard of care originated partly from the different objectives of the specialties of neurosurgery and otolaryngology. The otolaryngology community performed the external carotid ligation procedure with the goal of restricting the supply of blood to the source of the hemorrhage.  The neurosurgical community performed the procedure to inhibit clot formation in a compromised vascular system. Both specialties were unaware of the standards of the other and, in particular, the practice of ligating flush to minimize risk of clot formation. The court dismissed the plaintiff’s claim, finding that the defendant acted reasonably and complied with a respectable school of thought as to how to best perform the procedure.

A court may find that divergent medical opinions amongst experts do not reflect opposing schools of thought, but different points on a continuum of a single school of thought or reasonable practice. ³¹ In many cases, the trial judge will prefer the evidence of one expert over the other in determining what the standard of care is, rather than accepting the evidence of both sides as reflective of equally reasonable but different standards of care.

CLINICAL JUDGMENT

The Supreme Court of Canada has repeatedly held that medical practitioners are not to be held liable for errors of clinical judgment that are distinguishable from professional fault. ³²

A poor outcome does not mean that any negligence occurred as a doctor is not expected to be a guarantor of success, and cannot be held liable for an exercise of clinical judgment even if his or her judgment is wrong.

In Brimacombe, discussed above, the BC Court of Appeal found that the trial judge’s finding of negligence against the defendant could not stand as the judge had equated the failure to apply traction to expedite delivery of the infant plaintiff with carelessness, whereas on appeal, the court found that this was more accurately described as an error of judgment that could not attract liability. Citing the Supreme Court of Canada in Wilson v. Swanson, ³³ the Court of Appeal noted that “an error in judgment has long been distinguished from an act of unskillfulness or carelessness… the honest and intelligent exercise of judgment has long been recognized as satisfying the professional obligation.” ³⁴

However, just because an error involved the exercise of judgment does not completely shield a doctor from liability. As stated by the House of Lords in Whitehouse v. Jordan ³⁵:

Merely to describe something as an error of judgment tells us nothing about whether it is negligent or not… it depends on the nature of the error. If it is one that would not have been made by a reasonably competent professional man professing to have the standard and type of skill that the defendant held himself as having, and acting with ordinary care, then it is negligent. If, on the other hand, it is an error that a man, acting with ordinary care, might have made, then it is not negligence. ³⁶

In most cases, the success of a clinical judgment defense hinges on whether or not the defendant obtained all necessary information, or availed him or herself of all necessary resources before exercising his or her judgment.

In Williams v. Bowler, ³⁷ the plaintiff, Ms. Williams, had long-standing headaches and abdominal pain, as well as psychological difficulties and prescription drug abuse. She attended the hospital on multiple occasions and with different complaints and requests for pain control medication, leading doctors to question whether she was drug seeking.

On March 16, 1993, Ms. Williams was seen by Dr. Bowler for headaches following a bar room brawl the previous week in which she hit her head on a cement pillar. Over the next few days, Ms. Williams made repeated visits to the hospital emergency department with more severe headaches associated with other symptoms, including nausea, vomiting, blurry vision, and a “wild looking” presentation atypical of her usual neatly groomed appearance. On March 22, she was admitted for treatment of migraine and dehydration. A lumbar puncture three days later revealed the presence of red blood cells which could be due to viral meningitis, self-limiting subarachnoid hemorrhage, or a 30% chance of a life threatening condition such as a leaking or ruptured aneurysm. On March 31, she was discharged from hospital with a diagnosis of viral meningitis and subarachnoid hemorrhage due to head injury in the bar brawl. On April 19, she suffered a rupture of brain aneurysm, leading to permanent brain injury.

The issue before the court was whether it was a breach of the standard of care for Dr. Bowler to have failed to include leaking or ruptured aneurysm in his differential diagnosis and make an urgent referral to a neurologist. Had this occurred, appropriate investigation would have revealed the aneurysm and it would have been surgically treated in time to prevent the rupture and brain injury.

The defense asserted that Ms. Williams’ injury was the unfortunate result of the exercise of Dr. Bowler’s clinical judgment, and in the context of Ms. Williams’ complicated history, he exercised his clinical judgment reasonably with respect to the interpretation of the lumbar puncture results and could not be found negligent. The court did not agree, and concluded that in interpreting the lumbar puncture result, Dr. Bowler entered unchartered waters, and the standard of care required him to seek the input of a neurologist or neurosurgeon, and found that he was negligent for failing to do so.

Crawford, discussed above, involved an allegation that the defendant had a duty to refer Ms. Crawford to a specialist to manage her pregnancy in light of her cumulative risk factors. The trial judge agreed that the duty to refer involves a matter of judgment, but that does not mean that a court cannot examine the grounds upon which the judgment is exercised:

The proper exercise of judgment by a physician is one that is made after his/her weighing, assessing and evaluating such information as may be available. What “may” be available includes the results of tests or consultations that should have been carried out. In other words, the information upon which a judgment or decision is reached must be as complete  as is reasonably available and possible in the circumstances. ³⁸

Negligence may be found where a doctor, exercising his or her clinical judgment, has failed to obtain all clinically significant information via tests and examinations. In Wade v. Nayernouri, ³⁹ a patient presented to the emergency department with severe headache, nausea, dizziness, numbness, and photophobia, and was diagnosed by the defendant physician as suffering from migraine headaches. The patient was, in fact, in the early stages of subarachnoid hemorrhage and died several days later. The court found that the erroneous diagnosis alone did not determine the defendant’s liability, but found that the defendant was negligent for failing to make use of all diagnostic resources, including refer- ring the patient to a specialist, before coming to his conclusion and discharging the patient.

CONCLUSION

In this article, we examined a number of defenses open to medical professionals when facing a negligence claim. These defenses show that even though a plaintiff has obtained expert evidence critical of the defendant’s care, this will not necessarily result in a finding of fault. The analyses of the courts as to how these defenses apply to a physician’s conduct help to illustrate why so few medical malpractice cases that go to court are decided in favor of the plaintiff. The statistics from the Canadian Medical Protective Association (CMPA) are telling in this regard.

The latest statistics indicate that out of the total number of legal cases resolved by the CMPA in 2018, only 1% resulted in a legal judgment in favour of the plaintiff. ⁴⁰

Adherence to an approved  practice is prima facie evidence that the defendant met the standard of care, but it is still possible for the court to find that this approved practice itself is fraught with obvious risk and therefore find that both the practice and the defendant are negligent. As discussed, this involves the court finding that the standard of practice is so unsafe that a layperson would be capable of finding negligence. These situations are exceedingly rare. Similarly, even if the plaintiff had adduced evidence that the defendant breached the standard of care, if the defendant can show that he or she adhered to one accepted school of thought supported by members of his or her profession, the plaintiff’s claim will not succeed. The defense of clinical judgment is difficult for a plaintiff to overcome, as much of a medical treatment involves the exercise of clinical judgment. To succeed against a clinical judgment defense, it will usually be necessary for a plaintiff to show that the defendant failed to take into consideration all necessary facts or resources.

In all cases, it is for the court to weigh all the evidence and determine the standard of care applicable in the circumstances of the particular case and then determine whether that standard was met or not. The applicable standard of care is determined by the trier of fact having regard for all of the evidence led on behalf of the plaintiff and the defendant.

_____________________________________________________________________________

1.       Gerald B. Robertson & Ellen I. Picard,  Legal Liability of Doctors and Hospitals in Canada, 5th ed (Toronto: Thomson Reuters, 2017) at 450 [Robertson].

2.       Ibid.

3.       Ibid.

4.       Ibid at 451.

5.       see McDaniel v. Vancouver General Hospital, [1934] 4 DLR 593.

6.       see Anderson v. Chasney, [1949] 4 DLR 71 (Man. CA) aff ’d [1950] 4 D.L.R. 233 (SCC) [Anderson].

7.       1995 CanLII 72 (SCC) [ter Neuzen].

8.       Ibid at para 38.

9.       Ter Neuzen, supra note 7 at para 41.

10.     Ibid at para 43.

11.     See Ivanitz v. Van Heerden, 1996 CanLII 2559 (BCSC) for an example of “one of those occasions where a lay person could pass judgment.” (para 35)

12.     Anderson, supra note 6.

13.     Ter Neuzen, supra note 7 at para 44.

14.     Ibid at para 34.

15.     [1972] SCR 18, 20 DLR (3d) 345.

16.     Robertson, supra note 1 at 459.

17.      [1992] 1 SCR 351 [Lapointe].

18.     Layden v. Cope, 1984 ABCA 306 at paras 2-3.

19.     [1984] 1 W.L.R. 635 (H.L.), [Maynard ].

20.     Ibid at 639.

21.     [1985] O.J. no. 119.

22.     Maynard, supra note 19 at 639.

23.     [2003] OJ No 89 (SCJ), aff ’d [2004] OJ No 3669 (Ont CA) [Crawford ].

24.     Ibid at para 248.

25.     2001 BCCA 206.

26.     2002 BCSC 10.

27.     Ibid at para 11.

28.     2018 BCSC 886.

29.     Ibid at para 120.

30.     1991 CanLII 442 (BCSC), aff ’d 1992 CanLII 1421 (BCCA).

31.     Stubbins v. Johnson, 1995 CanLII 598 (BCSC). In this case, the court found the divergent expert opinions represented “different points on a continuum of a single school of thought as to the level of caution and delay required in the circumstances.” (at para 82)

32.     Lapointe, supra note 17 at 720.

33.     Wilson v. Swanson, [1956] SCR 804

34.     Ibid.

35.     [1981] 1 All E.R. 267 (H.L.)

36.     Ibid at 281.

37.     2005 CanLII 27526 (ON SC).

38.     Crawford, supra note 22, at para 229.

39.     [1978] O.J. No. 413.

40.     2018 CMPA Annual Report, https://www.cmpa-acpm.ca/static-assets/pdf/about/annual-report/2018/19_com_2018_annualreport-e.pdf.

This is the third article in our eight part series published in the Verdict law journal on medical malpractice litigation.  The law does not expect health care professionals to provide the highest level of care, or to meet a gold standard in providing care.  They are expected to exercise the reasonable degree of care that would be expected of a normal, prudent practitioner.  In this article, Brenda Osmond reviews how the courts determine that standard, and whether or not there is room for common sense in assessing the standard of care.

THE STANDARD OF CARE

In a previous article we discussed the first essential criterion in a torts action¹ – the need to establish that a defendant physician owes a duty of care to their patients². There are a number of components of that duty including the duty to attend on their patient, and the duty to diagnose, refer and treat their patient. Once the plaintiff has established that the defendant owed them a duty of care, in order to determine negligence, it is necessary for the court to understand what standard of care is required to discharge these duties.  The standard of care is the second essential criterion that a plaintiff must prove to win a medical malpractice lawsuit.

At its heart, the standard of care in a medical malpractice action is no different than in any other torts action. The plaintiff must prove that the defendant breached the standard of care. This involves determining  what the standard of care is, and if the defendant breached that standard.  Courts have acknowledged that these legal principles are plain enough but it is not always easy to apply them to particular circumstances.³

WHAT IS THE STANDARD?

The concept of reasonableness pervades the court’s determination of the standard of care, as is evidenced by the following statement from Sylvester v. Crits et al.: ⁴

“… 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 experience and 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.”

In addition to highlighting that the standard is one of a “reasonable degree of care”, this statement also describes that the standard of care expected of a specialist is higher than of non-specialists. There are a number of ways that a physician’s practice may call for a higher standard of care.  The physician may have formal specialty training and recognition,  such as certification as a Fellow of the Royal College of Physicians and Surgeons. Another way a physician’s practice could require a higher standard of care is if they restrict their practice to a limited range of conditions – essentially specializing in a focused area of practice.⁵

Although the court in Sylvester was specifically dealing with physicians, the expected standard of the “degree of care and skill which could reasonably be expected of normal, prudent practitioner of the same experience and standing” extends to all health care professionals. For example, nurses have a duty to exercise their professional skill and knowledge in accordance with what is expected of a normal, prudent nurse in similar circumstances.⁶

Historically the location of a physician’s practice could be considered in the court’s determination of the expected standard of care. This was largely on the basis that physicians practicing in remote rural locations should not be held to the same standard as a physician working at larger urban centres. The effect of this locality rule was to lower the standard of care expected of rural physicians. There are a number of components to the standard of care care analysis – the limited resources that may be available in a remote community may be directly at play in case. In Lush v. Connell⁷ the court acknowledged that the issue to be considered was access to facilities and resources, not geographic location. Although limited access to resources will continue to be a reality for rural health care, the loyalty rule has been significantly diluted over the years. The promulgation of clinical practice protocols and guidelines intended to highlight best practices in diagnoses, and remote access to specialists for some consults, may have the effect of limiting some of the difference between practice of medicine in rural and urban settings.

HOW IS THE STANDARD OF CARE DETERMINED?

The standard of care is determined by the trier of fact, and is almost always based on expert opinions. There will inevitably be conflict amongst experts for opposing parties. This does not necessitate the dismissal of the case. In the face of opposing opinions, the court must weigh the conflicting testimony based on factors such as the experience of the expert, the factual foundation on which their opinion is based, and whether or not the expert is conducting themselves as an advocate for a party or is acting in conformity with their duty to assist the court.^8,9

There are a number of factors plaintiff’s counsel needs to consider when deciding what experts to retain to provide an opinion on the standard of care. Does the expert need to have training and experience similar to that of the defendant?  If not, is there some other way that they can be qualified to provide an opinion?

Modern health care is becoming more and more complex. Specialty practices in both medicine and nursing are evolving. Nurses are being recognized as independent health care providers, and as members of a health care team in certain settings. Nurses and physicians need to rely on each other to carry out their du- ties, as decisions made by one may rely on information provided by the other. This has implications for how the court considers what the standard of care is, and for what kind of expert can be qualified to opine on the standard of care.

In Pinch (Guardian ad litem of ) v. Morwood¹⁰  the plaintiff sought to have a family practice physician qualified to opine on the standard of care expected of a rural emergency room physician and nurse. In addition, the plaintiff sought to have an obstetrician and gynecologist qualified to opine on the standard of care of a general practitioner in a rural emergency department.  In addressing the defendant’s objection to these specific opinions, the court noted that the family physician had trained nurses in the setting of a rural emergency ward and knew the team effort that was required in these circumstances.  Similarly, the obstetrician had received referrals from the emergency ward and would have experienced many patients who had been assessed in the emergency room.  In accepting these physicians’ qualifications, the court stated that:

Professional standards or clinical guidelines can be of assistance to the court in determining what the standard of care is in a particular instance, but a breach of a standard or guideline does not necessarily lead to a finding of a breach of the standard of care. In order for standards or guidelines to be compelling, evidence must be led that the standards or guidelines have been adopted by the profession. Some guidelines will include “permissive” wording that will bolster a defendant’s claim that the guidelines should not be considered conclusive evidence of the standard. For example, in Kern v Forest ¹¹ the court noted that clinical guidelines for a chiropractor included a general disclaimer at the beginning of the publication that clearly describe the guidelines as a non-binding document:

“… These guidelines are not intended to replace a clinician’s clinical judgment or to establish the only appropriate approach for all patients. They are intended to be flexible. They are not standards of care. Adherence to them is voluntary. … alternative practices are possible and may be preferable under certain clinical conditions. …”

The court in Ediger ¹² also noted that a breach of a recommended professional guideline does not in and of itself constitute a failure to meet the applicable standard of care:

If plaintiff’s counsel intends to rely on standards or guidelines as evidence of the standard of care, it is critical to have a thorough understanding of not only the content of the standard or guideline, but also the role they play in the practice of a reasonably competent practitioner.

In determining the standard of care, specific features of the risk of the procedure or treatment in question must be considered, particularly the foreseeability of risk and the inherent degree of risk. In McArdle, Estate v. Cox¹³, the court described the effect as follows:

The concept that an increasing degree of risk necessitates a higher standard of care was further developed in Ediger, an obstetrical case.¹⁴  Here, the degree of risk associated with the mid-forceps delivery procedure was at the heart of the trial judge’s interpretation of the meaning of the immediate availability of access to a caesarean section. The Supreme Court of Canada upheld the trial judge’s finding that the standard of care required the defendant to take reasonable precautions that were responsive to the recognized risks of the procedure In this case the recognized risk was that of persisting fetal bradycardia leading to severe brain damage that could occur during an attempted mid-level forceps delivery. The standard of care had to be understood in light of that recognized risk, and needed to be responsive to that risk.¹⁵

IS THERE A ROLE FOR COMMON SENSE IN ESTABLISHING THE STANDARD OF CARE?

Is it always necessary for the plaintiff to provide expert opinion regarding the standard of care?  The Supreme Court of Canada has clarified that if a matter can be easily understood by a layperson with no expertise in the medical profession, and where the common practice itself is so “fraught with obvious risks” that the practice can be found to be negligent, it is open to the trier of fact to determine the applicable standard of care, even though it might not align with the standard practice within the profession.¹⁶ In describing what has come to be known as the “ter Neuzen exception” the Court summarized this principle:

In Goodwin v. Olupona¹⁷, despite no evidence being led on the issue, a jury found that a hospital breached the standard of care by failing to provide appropriately trained and supervised nursing staff, and in failing to provide adequate equipment and resources in its labour and delivery facility. The hospital appealed this finding, on the grounds that the jury’s verdict was unreasonable and unsupported by the evidence. In finding that the jury’s verdict was, in fact, reasonable and supported by the evidence, the court noted that:

Another variation in how a court attempted to determine the standard of care can be found in Rowlands v. Wright.¹⁸ Here, the court considered the technique used by a surgeon in removing a patient’s gallbladder – during the surgery he mistakenly cut the patient’s common bile duct.  The trial judge found that the surgeon used the proper technique, nonetheless, he concluded that the defendant breached the standard of care. The trial judge came to that conclusion by relying on his “common sense” to find that the current surgical techniques were inadequate. The appeal court set the judgement aside stating:

Although there are examples where the  court  has found liability in the absence of, or contrary to, expert opinion, these cases are few and far between. Plaintiff’s counsel would be ill- advised to assume that  a “ter Neuzen” exception would be found to apply. Robust supportive expert opinion continues to be a fundamental component of identifying the standard of care and proving a breach of the standard of care.

Robust supportive expert opinion continues to be a fundamental component of identifying the standard of care and proving a breach of the standard of care.

THE COURT’S ROLE IN ADVANCING THE STANDARD OF CARE

Although the objective of a torts action is to put the plaintiff in the position they would have been in but for the negligence, some authors have suggested that the courts have a role to play in advancing professional standards:

“The courts on behalf of the public have a critical role to play in reviewing, monitoring and precipitating change in professional standards. … (H)olding compliance with approved practice to be negligence may be the only route to move some members of a profession to a new, better course … The courts are the appropriate organ for the adjustment of this balance, and should not abdicate their responsibility to adjudicate upon the negligence in any profession.” ¹⁹

Anderson v Chasney²⁰ is an example of the court taking such action. In Anderson a 5-year-old boy had surgery to remove his tonsils. Shortly after the surgery he stopped breathing and died of suffocation. During the procedure the surgeon had inserted sponges into his nasopharynx. The nurses were not asked to count the sponges to make sure they were removed at the end of the procedure, and the sponges used did not have strings attached so they could easily be retrieved, even though that product was available. At trial, the court found the surgeon not liable, as no evidence had been led that using sponges with strings was ordinary or good practice, or that having nurses count sponges was practical. The appeal court found that the surgeon took an unnecessary risk by failing to use one of the two methods available. In the court’s view, these precautions were within the understanding of the trier of fact and were sufficient for the determination of negligence. A finding such as this has the potential to advance practice in the interest of public safety.

WHAT COMES FIRST – STANDARD OF CARE OR CAUSATION?

Given that the third essential element of a torts action, causation, requires the plaintiff to prove a link between the breach of the standard of care and the injury suffered by the plaintiff, it stands to reason the liability analysis should unfold in a prescribed order.²¹ It will not be possible to know if the breach caused the injury, if the breach hasn’t been decided first. The court in Chasczewski v. 528089 Ontario Inc.²²  described two reasons for this ordering of the analysis:

DEFENCES TO A CLAIM OF BREACH OF THE STANDARD OF CARE

This article has reviewed the various approaches a plaintiff may take in order to prove a breach of the standard of care in medical malpractice cases. There are a number of defences available to a defendant, and plaintiff’s counsel must anticipate those defences and be prepared to address them head-on, or answer them should they arise. Those defences will be canvassed in the next article in this series.

_____________________________________________________________________________

1.       Donaldson, Andrea, The Doctor-Patient Relationship  and Duty  of Care – How Wide Should the Net be Cast?, The Verdict, Issue 163, Winter 2019.

2.       Note that although we will often refer to physicians, in general these principles apply to all health care professions.

3.       Sylvester v. Crits et al., 1956 CanLII 34 (ON CA)

4.       Ibid.

5.       Robertson a nd Pica rd. Legal  Liability  of  Doctors  and Hospitals  in Canada .2017Thomson Reuters Canada Limited, citing McKeachie v. Alvarez, [1970] B.C.J. No. 491.

6.       Brodeur v. Provincial Health Services Authority, 2016 BCSC 968 (CanLII).

7.       Lush v. Connell, 2012 BCCA 203 (CanLII) at 77.

8.       Crawford v. Penney, 2003 CanLII 32636 (ON SC) at 248.

9.       For example, Hewlett v. Henderson, 2006 BCSC 300 (CanLII) at 60 – 65.

10.     Pinch (Guardian ad litem of ) v. Morwood, 2016 BCSC 75 (CanLII).

11.     Kern v Forest, 2010 BCSC 938 at 162.

12.     Ediger (Guardian ad litem of ) v. Johnston, 2009 BCSC 386 at 59.

13.     McArdle, Estate v. Cox, 2003 ABCA 106 (CanLII).

14.     Supra note 12.

15.     Ediger v. Johnston, 2013 SCC 18 (CanLII).

16.     ter Neuzen v. Korn, 1995 CanLII 72 (SCC).

17.      Goodwin v. Olupona, 2013 ONCA 259 at 33.

18.     Rowlands v. Wright, 2009 ONCA 492 (CanLII), at 20, 21.

19.     Supra note 5 at 457.

20.     Anderson v. Chasney, 1949 CanLII 236 (MB CA).

21.     Supra note 5 at 353

22.     Chasczewski v. 528089 Ontario Inc, 2012 ONCA 97 (CanLII).

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.