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The Verdict - Magazine

The Doctor-Patient Relationship and Duty of Care – How Wide Should The Net Be Cast?

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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.

Breach of Fiduciary Duty Claims Against Physicians

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

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

LEGAL FRAMEWORK AND APPLICATION


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

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

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

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

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

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

FIDUCIARY DUTY AND INFORMED CONSENT

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

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

Do Women Have a Right to Caesarean Section?

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

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

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

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

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

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

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

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

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

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

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

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

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

What are a Physician’s Legal and Ethical Obligations to their Injured Patient?

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If you develop a serious illness or are injured in an accident, you will depend on your family physician not only to provide medical care, but also to assist you in obtaining employment accommodations, insurance benefits or third-party compensation.  Your physician has legal and ethical duties to you in these circumstances.  Susanne Raab has written the following article aimed at lawyers that describes a physician’s duties in this area:

When a client has been injured or become ill, the lawyer will need to develop a clear understanding of the nature and extent of the client’s injury or illness and its prognosis, as well as the cause(s) of the injury or illness. The starting point is to obtain a complete copy of your client’s relevant medical records. While this may come as a surprise to many who routinely review and attempt to decipher physicians’ handwriting and other cryptic notations contained in medical records, physicians have a legal and ethical obligation to create a legible and comprehensive record of the medical care they provide to their patients.1

While the physician who created the record owns the record, the law is clear that a patient is entitled, upon request, to examine and receive a copy of the complete medical records compiled by the physician in the course of providing medical advice and treatment to the patient. This includes electronic records and copies of records prepared by other physicians that the physician may have received. There are, however, limited exceptions to this  right, such as where there are compelling reasons to believe that the disclosure of these records (or certain portions of them) is likely to cause a substantial adverse effect on the physical, mental, or emotional health of the  patient or harm to a third party.2

In terms of what records are available, physicians are required to retain records for 16 years from either the date of the last entry, or from the age of majority (19), whichever is the latest.3  If the physician provided care in a hospital setting, the hospital must produce the medical records. Hospitals must retain primary records for 10 years from the last entry.4

Medical records are often relied upon in court as evidence of a claimant’s injury. These records are an exception to the hearsay rule and the facts contained in the medical records can be admitted as prima facie evidence for the truth of those facts.5 A diagnosis, however, may fall into the category of opinion evidence which cannot be admitted for its truth simply by entering the medical records as exhibits at trial, nor can it be admitted simply by calling the treating  physician as a witness at trial without notice of the opinion evidence provided in accordance with Rule 11-6 of the Supreme Court Civil Rules. Ultimately, whether notice is required or not depends upon the purpose of entering the diagnosis into evidence. If it is entered for the truth of the diagnosis, notice is required. If the purpose is simply to confirm that the diagnosis was made, notice is not required.

MEDICAL CERTIFICATES AND OTHER THIRD PARTY REPORTS

A person injured in an accident or suffering from a medical illness may require a medical certificate or report from his or her treating physician in order to obtain workplace accommodation, insurance benefits or compensation from a tortfeasor related to his or her injury or illness. Third parties, such as the patient’s employer, insurance company or defence counsel may also seek information directly from the treating physician.

The treating physician is ethically and legally obliged to provide reports on patients they have attended by providing relevant, objective medical information.6 This obligation applies even if the physician has not seen the patient recently and cannot provide a current report.7 The information should be provided in a reasonable timeframe, usually 30 business days.8

If the request is from a third party, the physician must first obtain an appropriate consent from the patient prior to providing any information. It is important to delineate the scope of what is relevant to ensure the disclosure of information does not exceed the consent provided. The patient should also be advised in advance that the physician cannot conceal or withhold relevant information which is not favourable to the patient.

DISCLOSING INFORMATION TO THIRD PARTIES

Some additional comments are warranted in relation to requests made by third parties. The cornerstone of the physician-patient relationship is trust and confidentiality. Subject to some limited statutory exceptions, a physician must obtain the patient’s express consent prior to providing any information to third parties, as noted above.

In the context of personal injury litigation, however, there is legal authority that once litigation has been commenced, there is an implied waiver of physician-patient confidentiality in relation to medical information which is relevant to the lawsuit. This arises in the context of defence counsel seeking to interview treating physicians.

It is important for physicians to understand that while there may be an implied waiver of privilege where a personal injury lawsuit has been commenced, this does not obligate them to discuss their patient’s medical information with defence counsel, in the absence of their patient’s consent. The College of Physicians and Surgeons of BC’s position is that notwithstanding this implied waiver of confidentiality, physicians have an ethical obligation to act in the best interests of their patients, and should review the third party request with their patient, and give due consideration to the patient’s wishes. The reality is, however, that if the patient refuses to provide consent, and the physician accordingly refuses to answer any questions, defence counsel may obtain an order from the court to interview the physician under oath, pursuant to Rule 7-5 of the Supreme Court Civil Rules. Good practice is for the patient’s lawyer in the personal injury matter to facilitate defence counsel reasonable request to interview the physician, and to be present during the interview for the purpose of ensuring defence counsel remains within the bounds of the implied waiver of confidentiality, and that no irrelevant or privileged information is disclosed.

REFERRALS AND SECOND OPINIONS

An injured client will often require one or more referral(s) to specialists in order to diagnose and treat his or her injury or illness. The process of obtaining appropriate referrals to specialists can be a time-consuming and frustrating process for a patient. It can result in delay and miscommunications between the primary care physician and the specialist. The College of Physicians and Surgeons of BC has addressed these concerns with a revised guideline for how referrals should be managed, emphasizing patient well-being as the single most important factor in ensuring an effective referral-consultation process. The relevant guideline requires clear and timely communication between the family physician and the referral physician, as well as between the physician and the patient. While there is no specific requirement in the College guideline for a consultation to occur in a timely manner, if information is communicated to the consulting physician which would indicate that a timely consult is required to maintain the health of the patient, then an obligation may arise to prioritize the referral. Once the consultation has taken place, the consulting physician should provide the referring physician with a timely (ie. 2 weeks) written report, unless the results are urgent or critical in which case more immediate verbal notification is required.

In addition to timely communication, patients should also be provided with appropriate information to assist them in making informed decisions about their health care, including whether to seek a second opinion or proceed with recommended consultation or treatments. In circumstances where a patient requests a second opinion, the College recommends the physician should “consider and respect their patient’s reasonable requests for a second opinion” [emphasis added].

TERMINATING THE PHYSICIAN-PATIENT RELATIONSHIP

When a patient has been injured or becomes seriously ill, the patient is more vulnerable and dependent upon his or her treating physician. He or she may require multiple referrals, comprehensive reassessments and extended appointments for counselling, on top of the requirements associated with supporting the patient with the medical legal process.

There is a recognition that the physician-patient relationship is a fiduciary one in which the physician is in a position of trust. This means that the physician must act with good faith and loyalty toward the patient and never place his or her own interests ahead of the patient’s.

A physician-patient relationship can be terminated by the physician for legitimate reasons. If there is an unambiguous indication that the patient blames the treating physician for failing to properly diagnose and/or treat the injury or illness and is contemplating legal action against this physician, the physician may reasonably construe this as undermining the relationship of trust and creating a conflict of interest, and may terminate the relationship.

Further, if the patient displays threatening or abusive behaviour to the physician or staff, making reasonable allowances for the role of the patient’s illness (addiction or mental illness) or injury (brain injury) in his or her behaviour, this may be an appropriate basis upon which a physician may terminate the physician-patient relationship.

It is important, however, to appreciate that the increased complexity of a patient’s care or the underlying legal proceedings are not legitimate reasons to terminate the relationship. Terminating the physician-patient relationship in these circumstances would be contrary to the fiduciary nature of the relationship. If a physician is actively reducing his or her patient load due to personal reasons, the College and the Canadian Medical Association Code of Ethics caution that the physician cannot simply dismiss their more complicated patients, or otherwise discriminate on the basis of a patient’s condition. Finally, terminating the physician-patient relationship must not be based on any reason that might be discriminatory under the BC Human Rights Code, including race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age.

In conclusion, understanding the nature of a physician’s legal and ethical duties to their patients, as well as the limits of those duties, will assist counsel in ensuring their injured client obtains the support needed from their treating physician(s) in pursuing their underlying legal remedies.

*image courtesy of University of New England – www.une.edu

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

1 CPSBC, Practice Standard, Medical records, v. 2.0, revised September 1, 2017.
2 McInerney v. MacDonald, [1992] 2 SCR 138, 1992 CanLII 57 (SCC).
3 CPSBC, Practice Standard, Medial Records, v. 2.0 revised September 1, 2017.
4 Hospital Act, Hospital Act Regulation, BC Reg 121/97 s. 14(1).
5 Ares v. Venner (1970), 12 C.R.N.S. 349 (SCC); Evidence Act, RSC 1985, c. C-5
s. 30(1).
6 CPSBC, Practice Standard, Medical Certificates and Other Third-Party Reports,
v. 1.0, revised November 2013.
7 supra, note vi
8 supra, note vi
9 Swirski v. Hachey, 1995 Canlii 617 (BC SC).
10 CPSBC, Professional Guideline, Referral-Consultation Process, v. 3.1 revised
November 5, 2018.
11 CPSBC, Professional Guideline, Referral-Consultation Process, v. 3.1 revised
November 5, 2018, Canadian Medical Association Code of Ethics, updated 2004,
s. 26.
12 CPSBC, Practice Standard, Ending the Physician-Patient Relationship, v. 4.0,
revised June 4, 2018; The Canadian Medical Association Code of Ethics, s. 17.
13 supra

The Role of Genetics in Birth Injury Claims 

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Proving that a defendant’s actions caused or contributed to the plaintiff’s injuries is an essential component of any medical negligence claim. In claims surrounding birth injuries, this often means proving that the defendant physician’s or nurse’s actions (or inactions) lead to oxygen deprivation around the time of birth, which resulted in a hypoxic-ischemic brain injury and its resultant consequences for the plaintiff.

While it has long been known that oxygen deprivation around the time of birth can cause cerebral palsy, it has long been argued that only a minority of cases of cerebral palsy are due to hypoxic injuries at or around the time of birth. Rather, the defence argues, the injury must have occurred much earlier in the pregnancy and that earlier delivery during labour would not have prevented the injury. More recently, as the science of genetics has advanced, it is sometimes suggested that the cause of the child’s problems may be due to genetic abnormalities rather than any difficulties encountered during labour. In this article, we examine the current medical understanding of the role of genetics in neurodevelopmental disorders, and how Canadian courts have approached the defence of genetic predisposition in birth injury claims.

Our Current Understanding of Neurodevelopmental Disorders

Cerebral palsy (CP) is a term used to describe a group of non-progressive disorders affecting body movement and muscle coordination. The condition affects 1 out of every 500 children in Canada. While prematurity, hypoxia-ischemia, placental insufficiency, and prenatal infection are well-recognized causes of CP, up to one-third of children who develop CP lack these typical risk factors, leading researchers to suspect a genetic component to the disorder.

There are multiple types of genetic alterations that contribute to human genetic variability, many of which are not yet fully understood. Copy number variants (CNVs) are a type of structural variants involving alterations in the number of copies of specific regions of DNA that can be either duplicated or deleted. The role of CNVs is recognized in the clinical manifestations of a growing list of neurodevelopmental conditions, including attention-deficit hyperactivity disorder (ADHD), autism spectrum disorder, and severe intellectual disability. Similarly, recent studies have suggested that large chromosomal abnormalities may be involved in the development of cerebral palsy.2

Genetic research has the potential to provide a framework for understanding neurobiological pathways that, through genetic mutations, may lead to neurodevelopmental disorders. For ex- ample, recent research on autism spectrum disorder suggests that individually rare genetic mutations collectively are associated with a relatively common disorder. No specific brain region or cell type has been implicated, but genetic risk factors are recognized. The evidence suggests that autism is not a single disease, but a number of etiological distinct conditions with diverse pathophysiological mechanisms that manifest into similar behavioural patterns.3

Similarly, studies have indicated there is no single genetic mutation leading to CP, but hundreds of individual genes that may, in certain circumstances, contribute to a diagnosis of CP. Several genes mapping to intersecting pathways controlling neurodevelopment and neuronal connectivity have been identified, but like other neurodevelopmental disorders, the underlying genetics of CP is likely to be highly complex.4 Indeed, current medical science has not identified a clear underlying genetic cause of CP, evidenced by the fact that routine genetic studies are not yet recommended in the diagnostic assessment of children with CP, especially in children where other risk factors are identified.5 The mere existence of a genetic mutation does not add very much to the identification of a genetic cause for CP. The effects of a given genetic mutation can vary based on the nature of the mutation, the presence of environmental insults, and the context in which a mutation occurs. For example, a severely deleterious mutation may lead to a major effect, whereas a less damaging mutation that does not disrupt protein function as profoundly may lead to a smaller effect. Many mutations are known to have no effect on function at all. As a result, some mutations may be sufficient to cause a disorder by themselves. In other cases, a less damaging mutation which renders an individual more susceptible to a given disorder, coupled with an environmental insult such as ischemia, may be required to produce a neurodevelopmental disorder. Similarly, a single mutation may not lead to a diagnosis, but the cumulative effect of several less deleterious mutations acting together may lead to the disorder.6

Genetic variation can be protective or deleterious in a given situation. Many clinicians have cared for infants who have suffered apparently severe insults but have relatively good long-term outcomes. The converse is also true – many infants who do not show indications of having suffered severe insults have poorer outcomes that expected. These scenarios are also encountered in animal models of CP, suggesting the existence of genetic modifiers that may influence the extent of injury and eventual motor outcome.7

Susceptibility vs. Causation

The test for causation in negligence claims was set out by the Supreme Court of Canada in Clements (Litigation Guardian of )

  1. Clements:

The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. Inherent in the phrase “but for” is the requirement that the defendant’s negligence was necessary to bring about the injury – in other words that the injury would not have occurred without the defendant’s negligence. This is a factual inquiry. If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against the defendant fails.8

It is not necessary to prove that the defendant’s actions were the sole cause of the plaintiff’s injury. The law does not excuse a defendant from liability merely because other causal factors for which he is not responsible also helped produce the harm. It is sufficient to show that the defendant’s negligence was a cause of the harm.9

Applying this reasoning to the role of genetics in birth injury claims, if, for example, a defendant could show that the plaintiff had DNA variants that could render him or her more susceptible to thrombosis, hemorrhage, or ischemia (and therefore more susceptible to brain injury resulting in a neurodevelopmental disorder), this would not absolve the defendant of liability. An underlying genetic susceptibility would essentially render the plaintiff a “thin skull.” If the defendant’s negligence was still a necessary contributing factor to the plaintiff’s injury, without which injury would not have occurred, the defendant would still be liable for the entirety of the plaintiff’s injuries, even if they were unexpectedly severe owing to genetic susceptibility. As an example, genetic susceptibility could play a role in the case of a baby who experiences and unexpectedly poor outcome following an apparently minor insult, however this should not absolve from liability a physician or nurse who was negligent in their care. A tortfeasor must take his or her victim as he or she finds them and is therefore liable even though the plaintiff’s losses are more dramatic than expected.

If, however, a defendant can prove that the plaintiff suffered from a severe single-gene mutation that would lead to their neurodevelopmental disorder on its own, that may essentially render the plaintiff a “crumbling skull” – the defendant would not be liable for the plaintiff’s condition if the plaintiff would have suffered the same outcome in any event.

Genetic Defences in Canadian Courts

In Allen v. University Hospitals Board, 2000 ABQB 509, the infant plaintiff alleged that her injuries were due to the negligence of the defendants which exposed her to neurological damage due to lack of oxygen during labour and delivery. The plaintiff alleged that she had suffered perinatal asphyxia, that there were no clinical findings to support an underlying genetic cause of the plaintiff’s condition, and that her autistic features were likely a secondary finding to her brain injury. The defendant’s position was that if there were intermittent interruptions in oxygenation, these were not sufficient to cause the plaintiff’s injury, and her condition could be accounted for by a genetic cause.

The court observed that the infant plaintiff displayed symptoms that were hard to categorize – it was unclear if they were symptoms of autism or were the result of some other neurological cause. The court found that while the infant plaintiff exhibited autistic features, the evidence supported the plaintiff’s theory that this was the result of neurological damage caused by birth asphyxia due to the defendants’ negligence. While in hospital following her birth, a host of tests were performed in an attempt to determine the cause of the plaintiff’s problems, but no identifiable cause could be found except for birth asphyxia.

The court noted that while there was evidence to suggest that the infant plaintiff was autistic and therefore that the cause of her problems was genetic, such evidence, while relevant, had its weaknesses: the gene or genes that might be responsible for autism had not been specifically identified, and some of the studies referred to, such as those involving twins, had very small population bases from which genetic conclusions had been drawn. The court found that the conclusions drawn from these studies were really working hypotheses. In the end result, the court concluded that even if the infant plaintiff suffered from autism, and even if autism is genetically based, the negligence of the defendants materially contributed to her neurological problems and current situation. More recently in Butler v. Royal Victoria Hospital, 2017 ONSC 2792, the infant plaintiff alleged that she suffered a hypoxic-ischemic brain injury that resulted in cerebral palsy when the artificial rupture of membranes performed by the defendant nurses resulted in compression of her umbilical cord for approximately 25 minutes. The defendants admitted a breach of the standard of care; the issue before the court was whether this breach caused the plaintiff’s injuries.

While the defendants conceded that the artificial rupturing of the membranes caused the plaintiff’s cerebral palsy, they argued that the fact that she suffered asphyxia in the neonatal period did not establish that this event was responsible for all of the plaintiff’s current issues. The defence argument was that the plaintiff’s cognitive and behavioural deficits would have emerged absent the defendant’s negligence because of genetically inherited ADHD. The court found that the overwhelming evidence was that the infant plaintiff suffered a severe hypoxic-ischemic event at the time of birth – the constellation of signs and symptoms, including Apgar score, blood gasses, and seizures in the immediate post- partum period were entirely consistent with having suffered this serious event. The court noted that the defence genetics expert, while offering the court the possibility of genetic factors playing a role in the plaintiff’s attention problems, confirmed that he did not, and could not, know if the plaintiff would have developed her current symptoms due to a genetic cause, as this was simply beyond the realm of current scientific knowledge.

Various genetic testing performed on the plaintiff had returned essentially normal results, indicating that there was no identifiable genetic component to the plaintiff’s profile. The defence argued that the plaintiff’s refusal to have further genetic testing of her and her family complicated the causation question. The court concluded that the entire genetic theory advanced by the defendant must fail because it required not only an unacceptable degree of speculation on the part of the trier of fact, but also because it would require the plaintiffs to prove a negative: that genetic information which might emanate from more sophisticated testing would rule out a genetic cause for the plaintiff’s condition.

Further, based on Canadian causation law, it appears that even if genetic testing had indicated a possible susceptibility in the plaintiff for ADHD, this alone would not be enough for the defendants to escape liability if the hypoxic-ischemic event caused by their negligence was a necessary contributing factor to the development of the disorder.

Wrap Up

While there is currently evidence indicating that genetic mutations may play a role in some cases of CP, autism spectrum disorder, ADHD, and intellectual disability, it must be understood that even if a genetic basis for a plaintiff’s injuries is discovered, this does not absolve a defendant of liability if the genetic component simply increased the plaintiff’s susceptibility to injury and the defendant’s actions were still a necessary contributing factor to the development of the disorder.

Our insight into the role of genetics in cerebral palsy and other neurodevelopmental disorders is in its early stages. We can only expect genetics to play a more significant role in our understanding of the underlying causes of these disorders – and therefore in birth injury litigation – as medical science advances.

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

*Photo courtesy https://www.thinglink.com/scene/771524646372638721

  1. Fahey, M. et al. The genetic basis of cerebral palsy. Dev Med Child Neurol 2017; 59(5) 462-469.
  2. Oskoui, et al. Clinically relevant copy number variations detected in cerebral palsy. Nat Commun 2015; 6:7949.
  3. De la Torre-Ubieta, et al. Advancing the understanding of autism disease mechanisms through genetics. Nat Med 2016; 22: 345-61.
  4. Fahey, supra.
  5. Oskoui, supra.
  6. Fahey, supra.
  7. Ibid.
  8. 2012 SCC 32, [2012] 2 SCR 181, at para. 8.
  9. Athey v. Leonati, [1996] 3 SCR 458, [1996] SCJ no. 102, at para. 19.

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