Regarding the conduct of the plaintiff’s family doctor, the court found that he was entitled to assume that the specialist had assumed primary responsibility for Mr. Kahlon with respect to his lower back pain and that liability had not been established.
In addition to the negligence of the hospital, the court found that the plaintiff was contributorily negligent for failing to follow up with the sports medicine specialist and failing to return for a contrast CT after being told to do so. The court found that the plaintiff likely thought he had a disc problem that would improve with time and exercise, and that he was not told he had a potentially life threatening or life-altering condition. Noting that apportionment is based on relative fault or blameworthiness and not causation, the court apportioned liability as 70% to the hospital and 30% to the plaintiff. The court noted that the hospital’s conduct markedly deviated from the standard of care, and while the plaintiff’s failure to attend for a subsequent CT scan and failure to follow up with the sports medicine specialist was careless and a “departure from the conduct of a reasonable patient” his conduct was “substantially less blameworthy than that of the hospital.”12
A patient’s conduct can also go beyond contributory negligence and lead to a finding that the physician was not at fault for the delayed or missed diagnosis. For example, in Rose v. Dujon13, the plaintiff suffered blindness due to the delayed diagnosis of papilledema – swelling of the optic discs due to increased cranial pressure. The court found that the plaintiff had not disclosed to his doctor recent incidents of head trauma and that he had dizziness, blurred vision and severe headaches, and therefore the defendants were not negligent for failing to come to the correct diagnosis. The court noted that a patient owes a duty to him or herself to do everything reasonably necessary to ensure he is not harmed, failing which he exposes himself to the submissions that he has been contributorily negligent for the loss suffered: “Both parties in a doctor-patient relationship have obligations – the doctor to the patient and the patient to himself – and inherent in the discharge of such obligations is the need to communicate fully with each other. To be effective, this communication must be bilateral.”14
