Pittman Estate v. Bain
Pittman Estate v. Bain9 dealt with whether a doctor had a duty to warn a patient and his wife of the patient’s exposure to HIV.
In 1984, Mr. Pittman received cryoprecipitate, a blood component, to stop bleeding following cardiac surgery. The Canadian Red Cross Society, who collected the blood from a donor, subsequently found out that the donor’s blood was tainted with HIV, traced it to the blood that Mr. Pittman received and advised the hospital where Mr. Pittman underwent his surgery. The hospital advised Mr. Pittman’s family doctor, Dr. Bain. Dr. Bain did not advise Mr. Pittman, who died of pneumonia related causes in 1990. Mrs. Pittman subsequently discovered that she was HIV positive and brought a claim of negligence against Dr. Bain for withholding information of the potentially tainted transfusions from her and her husband.
Dr. Bain argued that he believed he was acting in his patient’s best interests by not advising him that he may have been exposed to HIV-tainted blood due to Mr. Bain’s history of cardiac issues, depression and anxiety. Further, Mr. Pittman’s report of no sexual drive, along with his cardiac medication and ongoing anxiety and depression “persuaded Dr. Bain that Pittman was totally abstaining from sexual activity with his wife and that accordingly she was not at risk from his potential HIV.” 10
The Ontario Supreme Court found that Dr. Bain’s conduct fell below the standard of care. He had an obligation to disclose the information as there was prophylactic treatment available, and it was not protective to withhold such information from his patient. The court found that if Mr. Pittman was advised, he would have told his wife and they would have taken steps to protect Mrs. Pittman. The Court did not address whether defendants had independent duty to warn Mrs. Pittman.
Although the Court in Pittman found it unnecessary to decide if the defendant owed a duty to Mrs. Pittman to warn her of her husband’s HIV exposure (because the court was satisfied that had Mr. Pittman been advised, he would have told his wife), some commenters have stated that it must follow that an independent duty was owed to Mrs. Pittman, as without this, no liability could be imposed because she would not have been allowed to rely on the duty of care owed to her husband.11 Thus, the decision provides indirect support for the proposition that Canadian courts have recognized a duty to warn third parties in some situations.
Smith v. Jones
The Supreme Court of Canada addressed the limits of patient confidentiality in the case of Smith v. Jones.12 Mr. Jones (a pseudonym), was charged with aggravated assault on a sex trade worker. Mr. Jones’ counsel referred him to a psychiatrist, Dr. Smith (also a pseudonym) for a forensic assessment in the hope that it would be of assistance in preparation of the defense case or in sentencing submissions. Mr. Jones’ counsel advised him that because Dr. Smith had been retained to assist with his defense, the consultation with him would be privileged in the same way a consultation with counsel would be.
Mr. Jones reported to Dr. Smith detailed plans to kidnap and kill a sex trade worker. He told Dr. Smith that his first victim would be a “trial run” to see if he could “live with” what he had done, and if he could, he planned to seek out similar victims. The day after his consultation with Mr. Jones, Dr. Smith called Mr. Jones’ counsel and advised him that it was his opinion that Mr. Jones was a dangerous individual who would likely commit further offences unless he received sufficient treatment.
Mr. Jones subsequently pled guilty to aggravated sexual assault. When Dr. Smith contacted Mr. Jones’ counsel to inquire about the proceedings, he learned that the judge would not be advised of his concerns about Mr. Jones. In response, Dr. Smith commenced an action to determine whether the public safety exception to the law on solicitor-client privilege and doctor-patient confidentiality released him from his duties of confidentiality.
