Introduction to Tort Law

• civil wrong (not criminal) between 2 or more natural or legal persons

criminal wrongs are committed by an individual against the state

• started in Common Law - now certain aspects have been legislated (e.g. Limitations)
• new subject - began in 1859 (during British Industrial Revolution)
• new torts continue to be recognized

1. intentional (e.g. trespass, battery)
2. strict liability torts (e.g. vicarious liability)
3. miscellaneous (products liability, privacy issues, nuisance)
4. negligence

2 Principle Aims of Tort Law:

1. balance (between plaintiff’s claim to freedom from damage and respondent’s claim to free action)
2. shift loss (from injured party to responsible party)

4 Primary Functions of Tort Law:

1. compensation (for injury, loss or damage)
2. retribution (against responsible party but NOT PUNISHMENT)
3. vindication (recognize that rights have been hampered)
4. deterrence (against individual and society in general)

Weaknesses

• contradictory decisions (because it is a common law subject)
• some plaintiffs are over-compensated, some under-compensated and some not compensated at all for similar injuries
• inefficient - time consuming, costly, have to go to court for just result

Most tort (especially negligence) is settled out of court.

e.g. 1987 CMPA (Canadian Medical Protection Association?) settled 187 negligence actions out of court and unsuccessfully defended 17.

• malpractice is not a legal term because it’s too broad
• court usually adopts standards of relevant profession when judging negligence

• court applies an "objective test" - asks what would a reasonable practitioner (person with same qualifications as respondent) have done in a similar situation
• simply being wrong is not negligence unless the error is one that a reasonably competent practitioner would not have made
• cases are fact driven therefore precedence is less applicable

Elements of Negligence

1. Duty - usually patient - caregiver relationship but can also have duty to a third party (e.g. duty to warn in Tarasoff v. Board of Regents)
2. Breach - failure to live up to appropriate standard
3. Damage - reasonably forseeably caused by negligence, compensible damage

• duty of care or duty of care and skill
• duty implied where patient - caregiver relationship exists

1. disclose sufficient information to allow for informed consent

• Reibl v. Hughes (text page 55)

1. attend

• can only terminate relationship with appropriate notice
• must treat if no one else is available
• MacDonald v. York County Hospital Corp. (text page 141)

1. diagnose

• reasonably careful and knowledgeable assessment of patient
• Fraser v. Vancouver General Hospital (text page 100)
• case went to jury - interns negligent because failed to diagnose and failed to recognize limitations
• vicarious liability
• principle of "responeat superior" employer held negligent by proxy unless employee is grossly negligent or acted in bad faith
• applies to employer-employee relationships
• applies to partnerships
• Wipfli v. Britten (text page 145)
• Seyfert v. Burnaby Hospital Society (text page 147)

1. duty to refer

• must know limits of knowledge and skill
• also duty to refer when physician on holiday
• Fraser v. Vancouver General Hospital (text page 100)
• interns should have referred to supervisor (resident)

1. duty to treat

• includes education, monitoring, and advice for self-care
• not much case law because usually settled out of court

1. communicate

• with other professionals providing treatment
• Reynard v. Carr (text page 79)

1. duty for record-keeping

• important for well-being of patient
• important legally especially in defense of negligence

1. supervision

• especially junior colleges
• NOT same as vicarious liability rather direct liability for breach of "duty to supervise"

• failure to achieve applicable standard of care
• factual or physical link between conduct of respondent and injury to plaintiff
• most problematic and focus of most cases
• What was applicable standard and was it breached?
• courts use "objective" test - usually use expert witnesses on standard ordinarily applied to person with respondent’s qualifications
• no adjustment is made for inexperience (MUST be aware of limitations)
• McKenzie v. Alvarez (text page 99)
• no adjustment is made for rural practitioner versus urban practitioner - will adjust for lack of supplies/equipment
• the more perilous/dangerous the circumstances, the HIGHER the standard of care required
• Edmisson v. Boyd (text page 102)

• "cause-in-fact" or "proximate cause"
• "but for" test
• answers the question "would the plaintiff have suffered harm without breach of duty?" if YES then no negligence, if NO then "cause-in-fact"
• breach is sufficiently proximate if respondent had stopped just prior to behavior and considered consequences and could identify the actual consequence as a reasonably possible consequence
• the "thin-skull rule"
• compensated for actual damages - have to take victim as you find him - doesn’t matter if victim is more fragile than average
• joint and several liability
• if plaintiff died as result of negligence - compensation can go to the estate (Estate Administration Act) or to family (Family Compensation Act)
• limitation on negligence awards - one time lump-sum payments only
• no review
• highly speculative
• subject to income tax on interest & eroded by inflation
• structured settlements can be negotiated out of court
• contract & can write in anything legal
• can make it reviewable
• not taxed same way
• pre-budgeted for plaintiff
• exhausting fund - money is meant to be exhausted (reduced to $0) by end of plaintiff’s life

Proving Negligence

• in Canada most cases are heard by judge alone
• judges less likely to be swayed by emotional appeal
• plaintiff has burden of proof
• level of proof is CIVIL standard
• on balance of probabilities it is more likely that it happened as the plaintiff states
• CRIMINAL standard is "beyond reasonable doubt"
• negligence depends largely on experts (theoretically neutral) particularly well qualified specialists
• experts give opinion on prevailing standard
• number of experts limited by legislation
• when patient does not know who did what (because of anaesetic or coma) can evoke maxim "res ipsa loquiture" - the matter speaks for itself
• shifts burden of proof to respondent
• plaintiff must give evidence that there is no other reasonable thing that could have happened, it must have been negligence
• Girard v. Royal Columbian Hospital (text page 131)

Defenses to Negligence Action

• no relationship creating duty (doesn’t usually work in a medical setting)
• mere error/misfortune
• novus actus interveniens where third party commits another negligent act that the first act becomes insignificant in comparison - new intervening act breaks chain of causation
• note: ignore Yepremian v. Scarborough General Hospital (bad law)
• contributory negligence - (text page 117) partial defense only
• mitigation
• plaintiff can not reasonably refuse treatment that might reduce suffering
• judge will reduce award, holding plaintiff partially responsible for suffering if did not mitigate
• limitation periods
• Limitation Act sections 6, 7, 8
• section 6 - limitation period start time is postponed until identity of respondent is known, facts are known that legal cause for action and there is a reasonable expectation of success
• section 7 - legal disability - limitation period start time is postponed until person is no longer legally disabled (e.g. minor, certified mentally incompetent)
• section 8 - ultimate limitation
• cases against hospitals and hospital employees based on negligence must be initiated no more than 6 years after cause occurred
• cases against medical practitioner also limitation of 6 years after cause occurred
• limitation period is 30 years for other actions
• no limitation for sexual abuse actions
• must file documents - start proceedings within limitation period

Survey of Nursing Negligence Cases

• not many cases because:
• principle of vicarious liability applies (nurse not worth suing)
• self-regulated well
• nurses don’t usually have deep pockets
• may be more cases in future because:
• more insurance
• more risky procedures

1. medication/injection errors

• Wilcox v. Cavan (text page 169)
• refused to apply "res ipsa loquiture" maxim
• Humber v. Burnaby General Hospital [1973] (not in text)
• nurse gave injection in dark and injured nerve
• nurse found liable
• Sisters of St. Joseph v. Villeneuve (not in text)
• child lurched during injection lead to amputation of hand
• physician held liable

1. surgical cases

• Frandle v. MacKenzie [1988] (not in text)
• patient had hip surgery, after the surgery there was an abnormal, puffy lesion at the site. A swab had been left inside, the scrub nurse had taken a mental count, a formal count was not ordered.
• scrub nurse negligent in counting improperly
• physician more liable for not requesting formal count

1. heat related

• Nyberg v. Provost Municipal Hospital Board [1927]
• patient suffered burns from hot water bottles being placed too close
• nurse held liable

1. failure to monitor

• Krujelis v. Esdale [1972] (text page 168)
• 10 year old patient suffered cardiac arrest
• 3 of 5 recovery room nurses on coffee break
• hospital found vicariously liable - negligent system of work
• Laidlaw v. Lions Gate Hospital [1969] (not in text)
• 2 nurses on duty in recovery room, 1 on coffee
• 5 patients admitted at the same time
• Laidlaw’s respiratory problems not caught in time causing brain damage
• both nurses held liable

Future Issues/Alternatives in Negligence

• increase in insurance premiums
• increase in amount of claims
• unintended effects
• avoidance of risky specialties
• overcautious physicians
• defensive medicine
• reform
• shorten limitation period
• could abolish rights of estate and family to recover
• could allow awarding of structured settlement
• could cap award amounts
• encourage/require parties to seek other dispute resolution - arbitration, mediation, etc.
• introduce no fault insurance
• first party life insurance/disability insurance
• changes to system will be slow