Implications of Active Concealment of Medical Error
In some circumstances, a physician’s failure to disclose a medical error will attract both aggravated and punitive damages.
The cases which have attracted such damages involve an element of active concealment of the medical error.
As described above, in Shobridge the defendant surgeon discovered that he had left an abdominal roll in the patient’s abdomen during an earlier surgery. The defendant surgeon failed to advise the patient of this discovery. He further actively concealed this error by failing to record it in his operative record and consultation reports to other treating physicians and instructing the nurses not to record it in their charting or disclose it to the nursing supervisor. The court concluded that “[t]he only possible interpretation of [the defendant surgeon’s] action … is that he was covering up his own failures in order to avoid legal responsibility”. The Court awarded the plaintiff $25,000 in aggravated damages and an additional $20,000 in punitive damages.
Similarly, in Gerula, when the defendant surgeon discovered that he had erroneously operated at the wrong level of the plaintiff’s spine, he altered the medical record respecting the preoperative diagnosis pertaining to the first surgery (aligning it with the surgery he performed) and then proceeded to obtain the plaintiff’s consent to a second surgery without ever disclosing the error to him. The court held that the alteration of medical records elevated this case to one involving more than mere negligence and awarded of punitive damages in the amount of $40,000.
Conversely, where there is an absence of the type of active concealment seen in Shobridge and Gerula, the courts have declined to order punitive damages. In Vasdani, the defendant surgeon also erroneously operated at the wrong level of the plaintiff’s spine. When he discovered his error a year later, he failed to take steps to contact the patient (who was then under the care of another physician) to advise him of the error. He did not actively try to cover up the error in any way. The court characterized his failure in these terms, at para 40:
Conclusion
In conclusion, while there is a clear duty on the part of physicians to disclose medical errors to their patients, and a broad scope of disclosure required, liability will only flow in those unique cases where the failure to disclose a medical error caused additional harm – physical or psychological. If the medical error is found to have been a negligent one, any alleged additional harm caused by failing to disclose the medical error will often be causally connected to the underlying negligence, meaning it does not add any value to the claim. However, in cases where the medical error was not a negligent one, failure to disclose it may give rise to a cause of action where none would otherwise exist. It is also important to consider the implications of failure to disclose a medical error on the issue of discoverability in assessing a plaintiff’s limitation period.
- While this paper will focus of the physician-patient relationship, the principles apply to other health care professionals.
- The phrase medical error is used broadly to refer to all unexpected adverse outcomes irrespective of negligence.
- Robertson and Picard, Legal Liability of Doctors and Hospitals in Canada, 5th ed. (Toronto: Thomson Reuters 2017) at 268.
- For a more detailed discussion of the nature of the duty of care see Donaldson, “The Doctor-Patient Relationship and Duty of Care – How Wide Should the Net be Cast?” the Verdict, Issue 163, Winter 2019, p. 27.
- see Robertson, G “Fraudulent Concealment and the Duty to Disclose Medical Mistakes”, Alberta Law Review, Vol. 25, No. 2, p. 215 at p. 218.
- The Canadian Medical Association Code of Ethics.
- For a more detailed discussion see Raab, “The Evolution of the Law on Informed Consent”, the Verdict, Issue 164, Spring 2020, p. 29).
