• David Macdonald, 18, admitted to the emergency department of York County Hospital
• Fracture dislocation of the left ankle in motorcycle accident
• Examined by Dr. Fearon,
• Within 10 minutes he was turned over to Dr. Vail (well qualified practitioner)
• Dr. Vail ordered x-rays and cast was applied
• Gangrene in toes + 3 amputations
• Sued Dr. Fearon, Dr. Vail, and York Country Hospital

Describe legal process using M. vs. Y. case.

1. Pleadings
2. Process of discovery

1. examination for discovery
2. discovery of documents
3. independent medical examination of the plaintiff
4. discovery by interrogatories

The claim against the hospital was based on the principle of

1. Pre-trial motions
2. Preparation for trial
3. Pre-trial conference
4. The trial
5. Court of Appeal

1) Pleadings: statement of claims and defense

• Drafting of a statement of claims (documents)
• Documents me be served on the defendant and a copy must be filed in court

Statement of Claims: Inform the defendant that an action is being brought against her and also to advise her of the nation of the claim. The defendant is then in the position to defend the claim.

Note: The defendant's insurer may at this point accept liability and pay damages negotiated by the plaintiff's lawyer and the insurer.

The more common step is for the defendant to file a statement of defense.

Statement of Defense: A categorical of denial of the allegations of negligence. Indicates an intention to defend against the claim.

2) Discovery: There are a series of discovery procedures that can be set in motion to facilitate settlement. Only fewer than 10% of claims go to trial.

There are 4 discovery procedures.

1. Examination for discovery

• Plaintiff's counsel question each defendant
• The questionnaire take place under oath, before a court reporter, who records all questions and answers.
• May be used as evidence In trial

1. Discovery of documents

• Each side can be forced to produce all documents relevant to litigation

1. Independent medical examination of the plaintiff

• To determine the extent of the plaintiff's injuries

1. Discovery by interrogatories

• Similar to examination for discovery
• But involves a series of written questions asked of the party to an action

** If settlement acceptable to the parties cannot be reached, they must prepare for trial.

3. Pre-trial motions: Procedural, a technical dispute between parties settled (sometimes) / resolved by pre-trial motions brought before the court.
4. Preparation for trial:

• Decide what evidence to introduce at trial
• Defendant are not required to prove on absence of negligence
• The burden of proof in on the plaintiff
• Bring expert witnesses

3. Pre-trial conference

• Identify points of contention, narrow the issues, and encourage settlement
• When the parties are ready for trial, a conference is held by opposing lawyers and the judge
• It is the last-ditch effort to avoid a trail

3. Trial: Most medical trials are heard and decided by the judge alone.

• Judge determines the facts and applies the law to the facts
• BC and Ontario use Judge and Jury

1. a) Fact -à fact finding
2. b) Law (history)

• statutory and Common Law in Canada (Judge-made Law)
• the fundamental side of the judge is to settle disputes
• justice required that the decision in a particular case should be followed and applied in similar future cases
• judgements were recorded to provide precedents for later disputes of a similar kind
• The accumulation of cases over the course of centuries has produced a large and sophisticated body of law.
• Consistency and predictability are achieved by the doctrine of precedent, which declares that courts of lesser status must follow the rulings of higher courts.

3. Court of Appeal: (3 judges)

If losing party at time of trial believes that the trial judges of decided the case wrongly because of some error of fact or law, he may appeal and seek to convince the Court of Appeal that the trial judgement ought to be reversed.

• The result is that appellant courts are primarily concerned with issues of law.

3. Supreme Court of Canada (up to 9 judges)

• Depends on the significance
• Sits in a odd number
• To prevent split decisions

Consent to treatment: Right of person to free from unwanted physical interference.

• Right to self determination
• Medical care is wrongful and a battery unless the patient has given consent to it

• Told doctor "please don't touch my left are"
• For conditional consent
• Administered sodium pentothal through a vein in her left arm
• Liable in battery for adopting a procedure to which the patient had no consented

Battery: Any direct and intentional interference with a person which is either harmful or offensive to a reasonable sense of dignity is unlawful.

• No need to prove that the interference caused harm; only prove that it took place

Battery and medical treatment: Surgery and medical procedures usually amount to a battery UNLESS the patient has consented to the treatment.

• It is the patient, not the doctor who decides what her surgery will be performed, where it will be done, and by whom it will be done.
• The law relating to battery protects the patient's autonomy by recognizing her right to determine her own medical treatment.

Battery and negligence: A layer's perspective

Batteryà Appropriate remedy for unauthorized treatment

Negligenceà Appropriate if damage is suffered in the course of the authorized treatment

The plaintiff must prove the negligence act, causation and damage

The plaintiff has to prove only that the medical or surgery took place.

The defendant in a battery action is responsible for all the consequences of his wrongful action.

Consent may be oral, written or implied from the conduct of the patient.

• An express consent is established when a patient declares willingness to submit to medical treatment.

• Hospital used "consent form" to protect themselves.

• The Consent of the patient must be proved by the defendant-physician
• If there is a conflicting testimony between physician and patient
• The judge will have to make a finding a finding of credibility between the physician and the patient
• More likely the patient can recall specifics of the conversation. (see pg. 26)

• The courts are concerned with the reality of consent, not with the illusion of consent created by a signed document.
• The attending physician is personally responsible and will be liable if others (nurses or other members of the hospital) fail to secure his patient's valid consent.

• Circumstances in which a patient is unable to consent to treatment.
• When a patient is unable to consent, the physician has the right to provide treatment that is urgent and necessary to preserve his life and health.
• Legal privilege referred to as Emergency Doctrine

• Whether there is consent to the additional procedures
• The surgeon is legally protected if the extended procedure is urgently required to preserve the life and health of the patient (refer to emergency doctrine).

• But if the extended procedure is merely convenient, desirable or expedient, it will amount to a battery.
• A surgeon can only be sure if legal protection under this kind of clause when, being unsure of the precise malady, he directly asks the patient for a "blanket consent" to exploratory and remedial surgery.
• See Murry v McMurchy (BC, 1949) See Pg. 28
• See Brushett v. Cowan (New Foundland, 1990) See Pg. 29
• Extended procedure was not justified as an emergency procedure to preserve her life and health.

• Right to determine his own medical treatment means
• that he can give a condition consent.
• See Mullow v. Hop Sang (Alberta, 1935) See Pg. 30

• The patient has the right to modify or withdraw consent in the course of treatment.
• See Ciarlariello v. Schacter (1993) See Pg. 31
• The only exceptions to the power to withdraw consent are when
• The patient is so affected by medication that an effective withdrawal is beyond the patient's capacity.
• When immediate termination would be life-threatening or pose immediate and serious trouble.

• A patient may modify his/her consent
• See Allan v. New Mount Sanai Hospital (See Pg 24, and 31)

A patient clearly has the right to refuse a proposed treatment, and indeed, has the right to refuse all treatment.

See Mallette v. Schulman (Ontario, 1990) See Pg. 32

Jehovah's Witness - Refusal of consent

Blood Transfusion amounted to battery.

• Consent must be given freely, voluntary and without undue pressure or influence.

• Some hospitals have adopted the practice of obtaining the consent of both spouses to sterilization procedures.
• There is no legal requirement that a physician secure a spousal consent.

Capacity to Consent - Mental Capacity (See pg. 33-34)

• The power to exercise autonomous decision-making is based upon the patient's mental competence, and there are circumstances in which a patient may lack the mental capacity to decide.
• The caregiver must determine whether the patient is competent to make treatment decisions.

Options to lack of capacity to consent (For Caregivers)

1. Emergency Doctrine
2. Substitute decision-maker
3. Patient signed health care directive
4. Ontario/BC enable the next of Kin of mentally incompetent patient to provide substituted consent to treatment.

See Pg. 35

• The Ontario Consent to treatment Act
• BC Health Care (Consent) and Care Facility (Admission) Act.
• Both balance the fundamental common law principles of self-determination and the protection of the rights of patient deprived of the mental capacity to make their own treatment decisions.

There are three categories of minors: infants, immature minors, and mature minors.

Infants: minors up to the age of 6.

• Parents act the bast interest of their children
• Parents have power to authorize beneficial and therapeutic medical treatment
• Parents power to consent overrides refusal from child
• Most parents will authorize vaccinations
• Parents HAVE NO power to authorize non-therapeutic treatments

• Child born after a 38 week gestation period
• Developed respiratory illness
• Blood transfusion was required
• Parents refused consent based on religious grounds
• The Director of Child and Welfare applied to have the child declared in need of protection under the Alberta Child Welfare Act
• The child was treated
• The court refused to strike down the legislation as contravening the protection of religions freedom under the Canadian Charter of Rights and Freedoms

• child has increased knowledge and understanding of illness and treatment
• child deemed lack of maturity for independent decision making
• child has the power to refuse non-therapeutic treatments

1. Mature Minor

• have capacity to consent to most forms of medical treatment
• minor may exclude parents from all aspects of medical problem and may make confidentiality a condition of treatment

• abortion issue between child and parents

• parental consent is no longer necessary
• a 20 year old minor was able to give a valid consent to medical treatment

Mature minor rule: permits a mature minor an individualized determination of the capacity t to consent.

An area that is difficult to apply the mature minor rule is in the provision of oral contraceptives to teenagers. There are potential conflicts between care provider, parents, and teenagers.

• whether physician could prescribe oral contraceptives to a female under 16 without parental consent
• affirming the mature minor rule, the court held that it must be decided in each case whether the adolescent had sufficient understanding of the nature and risks of contraceptive to make up her own mind
• Note: There are professional and ethical standards which guide physicians
• Failure to comply may result in disciplinary actions
• Physicians have no obligations to provide contraceptives to minors

• The age a minor has consent is set at 16 in some provinces
• The option of the treating physician that a minor is under 16 has the capacity to consent in writing by a colleague.

• Lawyers are often called upon to advise clients how to best to minimize the risk of disputes and thereby prevent potential litigation
• Physicians can protect themselves from law suits if they agree not to treat any minors without parental consent, but this does necessarily resolve problems
• Hospital consent forms are required for treating patents who are minors

Court declared that the legal obligation to give information was part of the physician’s obligation to care to her patient. Supreme Court of Canada imposed liability on the basis of the physician’s negligence. The court held that if Mr. Reibl had been given the requisite information, he would not have consented to the surgery and, consequently, would not have suffered the disability caused by the stroke.

The trial judge refused to impose liability. He ruled that the physician ought to have told the patient that the procedure entailed an inherent risk of stroke. Even if the requisite information had been given, a reasonable person in the position of the patient would still have consented to the procedure. No liability was imposed because the failure to disclose the risk of stroke did not cause the plaintiff’s injury.

Saskatchewan Court of Appeal held that the physician had failed to inform the pt. That the laminectomy and discotomy involved a small risk of death and total paralysis, and that "conservative mgmt’ was an alternative to immediate surgery. The court held that in the circumstances this was negligent. If the physician had supplied the requisite information the plaintiff would not have suffered the temporary paralysis and the dramatic personality change b/c a reasonable person in his position would not have consented to surgery.

Traditional model: a paternalistic and authoritarian physician, acting in what she perceives to be the best interests of the pt, dictates the appropriate treatment to an unknowledgeable and acquiescent pt.

Participatory model: the physician/pt relationship is more egalitarian b/c the pt plays an active role in decision-making. (courts favor this model)

Medical treatment amounts to a battery unless it is authorized by a valid consent. It is arguable that if the pt has not received relevant info about the medical treatment, the consent is uniformed and consequently invalid. If such a consent is invalid, it follows that the medical procedure constitutes a battery for which the doc is legally liable. Although the pt must prove the battery (the physical interference with his body), the burden then falls upon the doc to prove that an informed consent was given by the pt.

Negligence focuses on the physician’s obligation of care. A physician’s obligation of care extends beyond a duty to treat with reasonable care and skill, to include an obligation to provide sufficient info to enable a pt to make an informed and intelligent decision as to what shall be done with his body. Favorable to physicians b/c the pt must prove not that the physician was negligent but also the negligence caused the plaintiff to suffer loss.

Professional Disclosure standard: requires the Court to determine what the reasonable physician would have told her pt in circumstances similar to those of the pt in the actual case before the court The court then determines whether the defendant-physician has met the standard. Works to physician’s advantage b/c it permits her to avoid liability by complying with standard medical practice and professional norms.(p.59)

Full disclosure standard: seeks to determine whether the physician has provided, in the light of what she knows or ought to know about her pt’s personal circumstances, sufficient info to allow a reasonable pt in those circumstances to give an informed consent. (more advantageous to pts since the degree of disclosure must be tailored to the individual circumstances. (p. 60)

2 approaches open to Supreme court:

The courts have ruled that a risk of serious consequences must be disclosed even if the chance of its occurrence is slight.. Thus, they have required disclosure where there is a relative small risk of death, stroke, paralysis, impotence, sterility, incontinence vision ore hearing loss, serious voice impairment and serious nerve damage. (p.62) (three case studies involve low risk of grave consequences).

Also been ruled that disclosure of the most serious risk does not free the doc from the obligation to disclose additional serious risks (e.g., Ferguson case told of death not stroke)

Risks that are commonly known or relatively minor need not be disclosed.(p.62)

Standard of disclosure must be tailored to the particular pt and that no general rule can be established concentrating on material risks; those risks that the pt needs to know in order to give an informed consent.

Also, necessary for the doc to provide info about alternative txs, particularly if one alternative involves significantly greater risk than another

Pt. Must also be advised of the consequences of inaction so that she can weigh the likelihood of success of remedial tx. (e.g., Haughian vs. Paine – failed to inform the pt of choice btwn conservative tx and surgery)

Shown by Ferguson v. Hamilton Civic Hospital

Court held that the cod had, improperly, failed to disclose the material risk of stroke inherent in an arteriogram of the cartoid artery. In applying the modified objective test of causation however, the judge concluded that if the risk of stroke had been explained to a pt in Mr. Ferguson’s position, he would have agreed to the proposed diagnostic arteriography.(p.63-64)

Ciarlariello vs. Schacter, the court considered a case in which the plaintiff-pt had undergone two cerebral angiograms in order to detect that the location of a subarachnoid haemorrhage. The court found that the pt was fully informed of all material risks, including that of death. The interruption of the test had introduced no new circumstances. (p.65)

1. Cosmetic Surgery and Procedures

When procedures are elective and non-therapeutic, the physician must give a more ample account of the nature and risks of the procedure, the nature and risks of alternative methods or procedures and the risk of failure of the proposed tx. (p.66)

E.g. Sinclaire vs. Boulton, the court found that the defendant was negligent b/c there was a known risk of an impairment in sensitivity. The court applied a causation test that recognized a # of personal considerations. The court deemed it appropriate to place heavy emphasis upon personal considerations when surgery is elective and cosmetic.(66)

2. Inquisitive Pt

A doc not only has an obligation to volunteer info relating to the medical procedures, but she must also answer the pt’s questions fully and honestly. Doc must be sure to answer all questions carefully and correctly. (e.g. Sinclaire vs. Boulton)(67)

3. Waiver of the Right to Know

Some pts prefer to have little or no info about medical procedures. There should be disclosure unless the pt waives that right in the clearest possible terms.

4. Therapeutic Privilege

A physician may feel that disclosure of material risks is not in the best interests of a particular pt b/c of the risk of psychological or physical harm (in Reibl the court did recognize this, in such circumstances, the doc is justified in keeping back info)(p.67) another eg on p.68 Meyer Estate vs. Rogers

5. Medical Research

Where no therapeutic advantage to the subject is anticipated, all risks, possibilities and opinions must be described in a forthright, open and honest manner. (p.68) (e.g. Halushka vs. University of Sask)

6. Innovative Procedures

1. Physician as Teacher

Obligation to teach the pt of her ailment, the benefits and risks of alternative tx and the consequences of inaction. Make sure pt understood by providing questions and any additional info (70)

2. Physician’s Duty to Know the Pt

Docs duty to know the personal circumstances of her pt and to tailor the disclosure of info accordingly (71)

3. Physician’s as Advisor

doc owes not duty to advise a pt(p.72-73) (resolved in Reibl vs. Hughes)

Specialists should ask very general questions

4. Physician’s and errors, blunders and misadventures in course of tx

• Annie Olsen, 49
• Married 4 Children
• Painful back condition
• Dr. Ahsan Examines
• Lumbar disks need to be removed
• Consent duly obtained and operation commenced
• Blood loss during surgery, but blood replaced
• Would closed, looked like normal recovery
• Internal hemorrhaging, and diagnosed as rupture abdominal aorta, and a bruised on the vena cova
• Olson Dies from irreversible shock (50% chance)
• Negligence is action brought against Dr. Ahsan
• At Trial: No Negligence could be imputed to Dr. Ahsan
• Misfortune
• Appeal: Appropriate standard of care and skill had been taken
• Doctor should not be held liable for what was in truth not negligence, but misfortune or misadventure.

• Reynard - Plaintiff
• Complained of Chronic bowel disorder
• Reynard sees Dr. W, Dr. W refers to Dr. S
• Dr. S prescribes prednisone, informs Dr. W and to reduce dosage
• Dr. S prescribes more prednisone and immuran (known for toxicity to the bone marrow)
• Prescription is useless and discontinued, further deterioration
• Referred further to Dr. Carr
• Carr diagnosed ulcerative colitis and prescribes prednisone again
• Prednisone dosage "bumped"
• Pain in shoulders and hips
• X-ray reveals serious bone degeneration
• Reynard referred to Dr. F - correct diagnosis of avascular necrosi; prednisone stopped.
• Proctocolectomy and 5 more operations to replace shoulder and hip with synthetic implants.
• Reynard goes into depression, alcohol and marital disjunction
• Reynard sues Dr. W and Dr. Carr in Negligence
• Prednisone is known to cause avascular neurosis
• Both Physicians found liable
• Failure in duty to communicate with each other; monitor prednisone prescription and effect
• Failure to disclose alternative treatment methods (i.e. surgical)

• Mr. Cabral - Plaintiff
• Something enters eye
• Sees Dr. Gupta, diagnosed nothing
• 2^nd visit, diagnosed nothing
• No screening x-ray was done on either visits
• 2 years later
• deterioration of vision in eye
• Referral to other Dr.
• Diagnosed: metal particle in eye and cause problem.
• Torn retina and therefore retinal surgery
• Retinal detachment, hence blind and eye removed
• Sue Dr. Gupta for failure to conduct X-ray and breach of duty to care
• Court: Mr. Cabral would have suffered severe visual impairment anyways, even with detection at onset.
• 70% of time, a timely diagnosis would have saved eye
• in favor of Mr. Cabral, but 30% reduction to reflect the possibility that remedial surgery might have failed anyways
• Appeal: Deduction and error
• Negligence at higher fault
• Timely sugery might have failed ----- Dismissed

Malpractice term is NOT a term of art in legal context

• too broad, and too vague

• duty of physician to inform a patient of the nature of the proposed therapy and its more important attendant risks.
• Failure, on this occasion, to meet the standards of care and skill prevailing in his own profession, and established by his professional peers.

• Concluding after the unhappy outcome of an operation, for instance, that any reasonable surgeon should have guarded against it.

Maxim "res ipsa loquitur"

• The matter speaks for itself
• Applied when plaintiff can adduce no evidence to explain how accident occurred.
• I.e. plaintiff under anesthesia, or in comatose
• To be wrong is not in itself to be negligent; and that human errors of judgement, whether in a physician's cognitive processes or her physical dexterity as a surgeon, are not themselves indicative of negligence - unless such errors were of a kind that normally competent and careful physician would not have made.

• Consists in a breach of a duty of care or skill, antecedently owed by one person to another; a breach which results in foreseeable and compensable harm to that other person or some interest of his.

1. The plaintiff must show that the defendant owed him a duty of care or skill

Critique: If a patient/Physician relationship exists, so, with absolute certainty, does a duty of care and skill (and other legal duties) owed by the doctor to the patient

2. The plaintiff must show that he duty was broken by the defendant, in that the requisite standard of care and skill demanded by the duty was not met

Critique: Breach of duty/ standard of care - is matched with experts idea of "standard of practice", the accepted technique, and the prevailing level of competence and skill current in the profession when treating like cases.

3. The plaintiff must show that he suffered damage of legally compensable kind, caused, and, foreseeably caused, by the breach of duty.

• Arriving at the right figure in dollars, and cents, that is needed to compensate the injured patient.

Damages for physicians who guarantee two much. This is called the breach of contract.

The Duty of Care: The patient may fairly be expected to co-operate, but it is the physician who has the power to guide and direct, while the vulnerable patient lacks the knowledge to contradict relies upon the physician's skill and judgement

CASE: Leonard vs. Knott: a radiological exam of the kidneys and urinary tract done by intravenous pylegraphy. Medical history seek from the family doctor . Mr. Leonard had an allergic reaction to the medium from the medium and died. The appropriate duties of care and skill was owed to such patient. There was no patient/physician relationship and this case came into being that the physician broke a moral and indeed a legal duty from entering into such a relationship.

Good Sumaritan: Not obliged to lend assistance to a stranger that requires medical attention . However, if you do stop and lend assistance, you are exposed to gross negligence but not for simple negligence. This is also provided you are not paid.

CASE: Barnett vs. Chelsea and Kensington Hospital Management Committee: Three nightman watchmen drank tea which had been laced with arsenic. They became ill and went to the emergency department. The nurse told the men the doctor instructed her to send the men home. One of the men died and they sued and argued there was a duty of care. But the action failed simply upon the issue that it would have been too late anyway (causation-in-fact)

If a doctor "contracts" agrees clearly to achieve a result, failure will result in damages for breach of contract. This is not a tort of negligence. Example: Mr. Bloggs and the scars on his forehead. If he fails and show due care and skill it is negligence and possibly breach of contract. However, the procedure was orthodox and there was just an error in judgement. He met the standard of his fellow specialist.

CASE: Urbanski vs. Patel; Firman vs. Patel: The physician removed what he thought was an ovarian cyst and turned out to be an ectopic kidney. The father donated his kidney, but the kidney was rejected by the patient's body. They sued and won. The physician owed a duty of care not only to his patient but to any close family member who would voluntarily submit to harm to "rescue".

"Standard of Care": CASE: Critis vs. Sylvester: a 4 year-old boy wants tonsillectomy. The doctor burned him with the oxygen mixtures due to the static electricity. He did not turn off the oxygen flow to the ether can, but merely turned down. The degree of care and skill which could reasonable be expected of a normal, prudent practitioner of the same experience and standing. If he is a specialist, a higher degree of skill is required of him.

"Standard of Care" doesn't look at the inexperience you have. If you are being sued, you, whether it is the first time practicing or the 90^th time practicing, you are considered an average practitioner.

CASE Fraser vs. VGH: a man sustains multiple injuries in a motor vehicle and was examined with x-rays. The "junior" doctor didn't notice a dislocated fracture in the neck. Later, the patient died suffering from a paralysis of the bowel. They sued and won because the doctor failed to recognize his own inability to read x-rays. Hence, he also did not engage in the duty to refer.

CASE: Edmison vs. Boyd: Mrs. Edmison was overweight and suffering from renal rickets and heart murmur and dwarfism. She was pregnant and noted as high risk. The doctor failed to pay special attention to her by performing more steps and tests. He also took too long to go and deliver the baby. What normally took him 5 minutes to get to the delivery room, it took him 45. The baby strangled on the umbilical cord and suffered brain damages.

Causation-in-fact: The court asks, "if the patient would have suffered it anyway."; But For test: Would the plaintiff have suffered this item of harm but for the breach of duty committed by the defendant physician?"

CASE: Mang vs. MoscovitzL Routine abortion by dilatation and suction curettage followed by an abdominal tubal ligation. She came out spastic quadriplegic, incapable of speech and requiring constant nursing care. There were evidence of carelessness during the operation but was corrected by more senior personnel. Neither had caused real damage. Had in any way contributed causally to Mrs. Mang's ultimate plight. "But For these negligent blunders events would have unfolded just as they did. The intern's negligence was not the cause-in-fact of any of the damage. The plaintiff lost her case.

CASE: McGhee vs. National Coal Board: McGhee suffered from Dermatitis because there was no washing facility to wash off the brick dust he accumulated each day. He requested it, but none was given. The board was found guilty of negligent breach of duty that caused the harm. The employers had owed McGhee a duty of care and had broken it.

Proximate Cause: "reasonable forseeability" through risk is statistically small, was foreseeable, as a possibility so grave that a reasonable doctor would not disregard it.

CASE: Leonard vs. Knott: it was unsuccessfully argued that the risk of a patient's death from a severe reaction to the intravenous pylography was so slight and unforeseeable that it should be regarded as too remote to be recoverable.

Thin Skull Rule: Provides that the plaintiff shall recover not only for that measure of harm which might reasonably have been expected, but for the full measure of harm actually sustained. Reward full-measure of damage and not the average. If you miss 18 days of work you get rewarded for 18 days of work and not what the average person would miss.

Novus Actus Interveniens: one physician's negligence followed by another act of negligence.

CASE: Yepremian vs. Scarborough General Hospital: Tony Y had been ill for days with extreme thirst and frequency of urination as well as nausea. A GP sent him home diagnosing him with tonsillitis and pharungitis advising him to quench his thirst with soft drinks. His condition worsened and he went to the Hospital where another doctor making no diagnosis prescribed him with phenobarbital and valium. A third doctor was contacted and directed Tony to the ICU where a urinalysis was ordered. He still couldn't find the problem. The nurse finally discovered the problem of acute diabetes but it was too late to prevent a cardiac arrest and brain damage. Both doctors are found negligent but the second doctor was so overwhelmingly significant in causing the ultimate calamity that it should be deemed entirely to "insulate" the prior wrongdoers.

The above is also joint and several liability where multiple respondents are all found liable. The court may say Doctor 1 is liable for 25%, 2 for 25% and Doctor 3 for 50%. Plaintiff can go for them all but typically the one with the deepest pockets -- Doctor 3.

Contributory Negligence: when a patient shows a lack of ordinary, reasonable regard for his own health or safety and thereby increasing the measure of harm.

Vicarious Liability: which holds certain persons or entities liable for the wrongdoing of others, not because they themselves are in any sense at fault. If a member of a hospital's house staff negligently injures a patient, that patient may sue not only that staff member but the hospital as well. CASE: Fraser Vs, VGH.

For Tony's situation, Dr. R, the third doctor was a member of the attending specialist staff and was not an employee of the hospital.

• Doctor's best defense is to show that he did not commit any actionable negligence in the first place.
• No relationship arose creating any duty of care to the plaintiff
• Mishap was mere error of judgement
• Treatment conformed to the practice approved by the medical profession, or a considerable segment of it.

• Award will be proportionately reduced, to reflect the extent to which he himself, by his own fault, was the author of his misfortune. (Pg. 117)
• A patient who has himself to blame for some portion of his misery will to that extent find his remedy in damages reduced.

• Dispute is void (Statute-barred) if injured party has not taken first step toward seeking a remedy and filling his statement of claim by the allotted date.
• Why void?
• Memories become stale or distorted
• Witnesses are harder to find and less reliable in recollections.
• Plaintiff in negligence action for personal injury are given 2 years (different for each province) in which to commence proceedings
• Start: cause of action "arises", moment of harm inflicted
• Services by Professional ceased
• Reasonably alert plaintiff becomes alert to harm done
• Patient has had a reasonable chance to become aware of his situation (BC)

- Plaintiff, in an action of medical negligence, bears the legal burden of proof in the case.

• Therefore, plaintiff needs to convince judge, on a balance of probabilities, that the facts in the case, properly understood, bespeak a duty of care, breach of this duty, and proximate damage resulting from that breach.

• Assists in placing proper interpretation to evidence
• Professionals called to testify because of what they know of the particular events which gave rise to the action, but rather because their qualifications enable them to speak authoritatively about the technical or scientific issues in the case, about their perceptions and opinions as to what the defendant actually did and about whether in so doing he acted in accordance with, or in defense of, the approved practice current in the medical profession.

• matter speaks for itself
• Plaintiff can adduce no evidence (or not enough) to explain how the accident occurred.
• I.e. plaintiff under anesthesia, or comatose.
• Only works if it is pin-pointed to a "someone"
• See Pg. 131 - 132

Plaintiff needs to persuade court that the accident is of a kind that would not normally occur without negligence on someone's part; also, the facts unequivocally point to the defendant as the "someone" in question. Then, if the defendant doctor is unable to produce an explanation of the mishap which plausibly attributes its occurrence to some factor other than his negligence, then the doctor is liable.

Physician's defense:

• Showing that everything he did, he adhered to the practices usual among his fellow physicians when dealing with like cases, and showed in doing so the care and skill normally to be expected of average members of that peer group.
• E.g. If 9 out of 10 physicians would have done the same care or treatment, then the action is dismissed.

If physician adheres to one or the other rival schools of thought, then any suggestion of negligence is dispelled.

This chapter discusses all 9 duties of care required by the physician:

CASE: Reibl and Hughes.

This is the most important and frequent litigation of a physician's duty. This duty is to provide sufficient information to the patient so that he/she can give an informed consent. The duty to disclose to the patient the essential nature of the proposed treatment and certain of the risks which may attend it -- has already been examined in detail. Accordingly, only a reminder need be given that this "informed" consent" issue is nowadays more than ever a very common basis for lawsuits. Patients often claim bases on "breach of the duty to inform".

The doctor must pay attention to the patient and he can turn away if another doctor is available with sufficient notice (retirement).

Dr. V was held liable for the amputation of his patient's gangrenous leg. The defendant was faulted on two grounds: his tardiness in attending his patient after putting his severely fractured leg in a temporary cast, and his failure to respond with due urgency to warning signs brought to his attention by nurses.

The doctor has no duty to attend a person who is not yet a "patient". Another exception to this duty is that the doctor doesn't have to "drop everything" in the absence of any indication that a critical situation was unfolding. Doctors are humans too, they can take vacations subsequently after the surgery, provided he has given sufficient notice and not be liable of the duty to attend.

This duty of care is to make a reasonably careful and reasonably knowledgeable assessment of the patient's condition. He must bring to the task of diagnosis that measure of professional judgment and skill, and that measure of attention and concern, which is reasonably to be expected from a fellow-practitioner of ordinary competence. It requires reasonable effort, a healthy measure of attention and inquisitiveness an open mind, and a willingness by the physician to make use of any appropriate diagnostic resources which may be reasonable available.

CASE: Fraser vs. Vancouver General Hospital: failure of the two interns to detect a dislocated fracture of the neck, plainly visible upon the patient's x-rays, was held to be actionable negligence.

CASE: Yepremian vs. Scarborough General Hospital: three physicians failure to make a timely diagnosis of diabetes in that case -- a diagnosis ultimately made by a nurse. A history of the patient was not taken. Urinalysis was not directed with appropriate urgency; blood test done at the late stages. All amounted to negligence.

CASE: Dale vs. Munthali: Man complained of an elevated temperature and severe and generalized bodily pain, trembling, vomiting, hearing impairment and diarrhea. Muntahali quickly diagnosed him with influenza but in fact, he had meningitis. The doctor was deemed with negligent because symptoms evident upon exam were so severe as to indicate something far worse than influenza. The court suggests the need for immediate hospitalization and the running of urgent diagnostic tests.

CASE: Wade vs. Nayernourni: a man with severe headaches, dizziness and photophobia with nausea was diagnosed in 20 minutes as having migrainous headache plus nervous overtone. Prescribed 292 tablets. 2 weeks later died. Negligence because there was no history of migrance. He should have taken the time to check the patient's history.

CASE: Wipfli vs. Britten: two babies were present in the mother's womb. The doctor didn't even know there were two until a C-Section was done. The doctor had not taken precautions such as ultrasound and esstriol tests, pre-natal charts had been lax and his appointments with Mrs. Wipfli had been few especially delivery became overdue. Her weight-gain nor her height had alerted the physician as they should have and not even knowing multiple gestation all amounted to negligence.

CASE: Seygort vs. Burnaby: a young man drunk and abusive went to the emergency ward with a stab wound to his abdomen. The physician cleaned and probed the wound and checked the patients innards, ordered chest x-rays and concluded nothing was perforated. He was in fact penetrated in the tranxverse colon and gross inflammation of the imentum had set in. Negligent for laxity in discharging the patient after so brief a period of observation especially he was drunk and couldn't convey with himself.

The physician must know the limitation of his/her knowledge and must find a referral if he/she knows that they are coming to this limit. Also responsible to refer if he is going on a vacation.

Surgeons who have amputated the wrong limb, excised the wrong organ or applied casts of excruciating tightness, sponges and swabs absent-mindedly left in body cavities.

CASE: White vs. Turner and Videto vs. Kennedy : a physician must be available to his patient or at least arrange for a competent substitute to attend the patient, during the period of convalescence.

They must communicate with each other.

CASE: Reynard vs. Carr. One doctor prescribed prednisone and Imuran and later Dr. Carr prescribed prednisone again. As a result, Mr. Reynards hip and shoulder joints were diagnosed by Dr. W as symptoms of bursitis even though X-Rays plainly show serious bone degeneration in the joints. Dr. W did not alert Dr. Carr. There was no warnings to the patient of the risks associated with sustained and heavy prednisone use. Lack of co-ordination shown by the two physicians of drug therapy.

Fundamental importance to the well-being of an individual. In legal perspectives. In defense of negligence.

CASE: Bergen vs. Sturgeon General Hospital and Reunard vs. Carr: portance to the well-being of the individual.

inadequate medical history sheets concerning Mr. Reynard cast grave doubt upon the reliability of the doctor's recolllections .

Not the same as vicarious liability. It is direct liability. Overseeing the performance of other professionals typically junior colleagues involved in a surgical team.

- Reasons why nurses seldomly sued:

1. paid little therefore "judgment-proof" (not worth suing)
2. alternate action is the employer-institution (vicarious liability) for the torts committed by the nurse

• then hospital's liability insurers might seek to get loss against nurse by "subrogation"

- liability insurance among modern nursing professionals will cause increased rate of lawsuits against them

The Nurse and the Tort of Battery

• battery = direct, physical interference, without lawful excuse, by one person with the body of another; may be committed without great force
• battery protects from physical hurt and is a tort or legal wrong which protects people's "indignitary interests" (their rights to personal autonomy and to freedom from humiliating or otherwise unwelcome interference
• without valid consent of patient, will constitute an actionable battery which substantial damages may be awarded
• burden of proving a valid consent rests on nurse
• potential battery suit can be avoided by obtaining explicit written document, signed by patient consenting to particular procedures which are contemplated; however, this is not always sufficient if insufficient info given to patient for consent
• consent in oral, implied from conduct, body language is as good as written. Ie. When patient opens mouth to receive pill from nurse, consenting to procedure
• incompetent patient (of not sound mind) because of age or disease, the nurse is empowered to perform any tasks deemed reasonably necessary for patient's care even over protestations of the patient; but if patient were competent (capable of rational decision making even if decision seems unreasonable) and is absolutely entitled to reject services no matter how beneficial
• use of restraints (chemical or physical) is allowed when threat posed by mentally incapable patient is a threat to himself - substitute consent giver must give consent for restrain

Nurse and Informed Consent

• if attendant risks weren't explained and patient convinces Court that concealment caused him to regret submitting to procedure, can sue in tort of negligence
• observance of following procedures will give realistic protection to patient's rights of

autonomy and self-determination and protect physicians from real risks of potential

litigation:

1. measures or direct notification to treating physician or relaying patient's concerns along appropriate nursing channels to make physician aware that patient's concerns lies on insecure info footing
2. if patient's questions calls for a factual answer or educated opinion within nurse's expertise and clearly right answer can be given, nurse may answer question and then inform physician of it
3. everything asked by patient and everything said and done by nurse must be entered into nurses notes

• nurses should resist any efforts made by physician to delegate them responsibility of informed consent
• when she serves as witness to consent form, she's verifying that patient is willing and has mental capacity to sign document
• she doesn't assume shared responsibility for assuring consent based on sufficient info given to patient

Nurse and Law of Negligence

• plaintiff must show:

1. at material time, defendant owed legal duty of care or skill

• seldom gives rise in nursing context
• every nurse owes a duty of care to her patient
• no duty owed to total strangers who haven't entered nurse-patient relation for nurse acts as "Good Samaritan" ie. If on bus, stranger gets heart attack, she has no legal obligation to intervene and provide appropriate care

1. duty breached by failure to achieve or maintain requisite stand of care or skill demanded by duty

• having done one's best isn't necessary enough if best was short of the norm
• Dowey vs Rothwell
• Plaintiff had history of seizures and flet a probable attack coming on. She went to a nearby clinic and was placed under the care of a nurse who stayed with plaintiff for an hour and then left her for a minute to get plaintiff's file. During absence, patient experienced seizure and injured self. Court concluded standard short of norm, and imposed vicarious liability
• Krujelis vs Esdale
• Child in post recovery room gets cardiac arrest; 3 or 5 nurses assigned to duty in recovery room during critical time were on coffee break; by the time anyone noticed something wrong, child died

• Fiege vs Cornwall General Hospital
• Injection in wrong area of left buttock
• Actionable negligence because error that reasonable average nurse would not have committed
• Wilcox vs Cavan
• Patient refused to present buttock for injection so inserted needle in arm, the 2^nd best site and accepted alternative
• Swelling developed and patients condition declined; hand was amputated
• Plaintiff not able to present evidence that nurse had done wrong so used res ipsa loquitur and failed
• All evidence showed nurse blameless
• Khan vs Salama
• Culpably slow in alerting treating physician to disturbing changes in a patient's condition
• Physician held liable, nurse accused of negligence failing to sound emergency bell with promptitude but was exonerated because delay was due to surprise of situation and training and experience wouldn't have prepared her
• Her negligence if any, wasn't causative to patient's present condition

• reasonable practitioner of standard of care required and applies to nurses from 1^st day of practicing qualification; inexperience will not be excusable in law for substandard of care
• Ares vs Venner
• skier with broken leg admitted to hospital and nurses noticed and duly recorded disturbing signs of impaired circulation
• doctor failed to treat case as emergency and leg later had to be amputated
• Supreme court allowed nurses' notes as evidence and prima facie proof of truth of facts and events
• Burden of proof falls on party who challenges the truth of the hospital record
• record entries should be clear, factual, precise; corrections made clearly and identified with explanation for the changes
• anything suggesting alteration in record after the event should be avoided to dispel suggestion of tampering
• ie. J. Brant Memorial Hospital vs Koziol
• patient was found dead and court found inadequate nurses' notes which were put into evidence
• there were absence of entries between certain times
• the absence of entries meant nothing was charted because nothing done
• 1 nurse held liable
• Meyer vs Gordon
• A nurse used sloppy and imprecise language to describe her impressions and showing deficiencies of observations; entries had been tampered
• nursing staff negligent for failing to obtain obstetrical history, failure to monitor attentively the process of delivery and general engagement with patient at critical time