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1 PATIENT RIGHTS COME PATIENT WITH CONTRIBUTORY RESPONSIBILITIES: NEGLIGENCE IN MEDICAL NEGLIGENCE ACTIONS S. Hmzo Ventresc,*. Peter W. Kryworuk** nd Yol D. Chmbers*** Scott Introduction 1. ltter hlf of twentieth century, significnt chnges In reltionship occurred, profoundly chnging physicin-ptient of both physicins nd ptients in Cnd. The trditionl roles beneficence model of medicine, where tretment nd providing benefits often surpssed ptient unomy, evolved in medicl premised on ptient rights. Theseptient rights model governed re fcrs hve contributed decline of beneficence Severl of medicine in Cnd. From professionliztion of model medicine growth of speciliztion in medicl Cndin nd technology; from emergence of modern knowledge onset of public helth insurnce; from hospitl of prmedicl personnel ever-greter demnds. prolifertion from ptients for sy in ssessing nd ttending ir medicl B.A. (Hons), LL.B., LL.M. Cndidte (2007) Fculty of Lw, University * of (rticling student t Lerners LLP, ). m grteful for Toron s Specilist in Civil Litigtion by Lw Society of Upper Certified Cnd. B.A., LL.B., Associte lwyer in helth lw *** Lerners LLP ( ), t Associte, Blumberg Segl LLP, Toron (current). Litigtion In ir detiled study, A Hisry nd Theory of Informed Consent, Ruth!. nd Tom L. Beuchmp define "beneficence model" s depicting Fden physicins' responsibilities of disclosure nd consent-seeking " s by principle of beneficence, in prticulr through idel estblished physicin's primry obligtion (surpssing obligtions for respect of tht is provide medicl benefits" (t p. 59). For unomy) detiled review of pic, see for exmple Ruth Fden nd Tom L. Beuchmp, A Hisry this Theory oflnformed Consent (New York: Oxford University Press, 1986). nd societl norms for unomy nd by coupled with re rights nd duties of physicins. 2 respective of Cndin Institutes of Helth Reserch nd Socil support nd Humnities Reserch Council of Cnd. E-mil: yol.ven- Sciences LL.B. Prtner nd Helth Lw Prctice Group Leder, Lerners LLP. ** Ibid. 207

2 208 The Advoctes' Qurterly [Vol. 33 chnges helth needs, system nd Cndin society hve cre ltered reltionship between physicins nd fundmentlly professionl; he ws regrded s trusted dvisor, t times, even fmily friend. Physicins nd highly regrded were respected, nd nd providers of medicl services. Hospitls mere were few in for sick". 4 The Cndin popultion "sylums sprse, ws nd diverse. With only scttered smll number of urbn centres nd trined physicins, mny Cndins relied upon "irregulr" few nd or unscientific nd unorthodox prctitioners for ir sources In legl system where oncs sttus ws defined reciprocl, duties nd obligtions, beneficence model of by ws best suited delinete boundries of medicine between physicin nd ptient. reltionship ltter hlf of twentieth century, During ptient demnds s principles tht define nd delinete physicin-ptient legl t lw. 6 Some commentrs hve hyposized tht reltionship shift in common lw cme in response wht mny jurists. this s hisricl inequlity of physicin-ptient perceived creting equilibrium nd ffording ptients legl imblnce, ssert unomy in ir foundtion helth cre nd own Bernrd R. Blishen, Docrs in Cnd: The Chnging World of Medicl 3. (Toron: University of Toron Press, 1984), pp Prctice Government of Cnd, Report of Royl Commission 4. Helth Services on Queen's Printer; 1964), vol. 1, pp (Ottw: Docrs in Cnd, supr, foote 3, t p. 9. Irregulr prctitioners included 5. helers whose skills were utilized by mny Cndins well in homeopthic erly decdes of twentieth century. The most significnt decision in this regrd 6. tht of Supreme Court of ws in Reibl Cnd Hughes, [1980] 2 S.C.R. 880, 114 D.L.R. (3d) 1, 14 v. Reibl is often cited C.C.L.T.i. wtershed incndin medicl lw. For s on this point, see, for exmple, Snd Rodgers-Mgnet, "Recent discussions in Doctrine of Informed Consent Medicl Tretment" Developments 14 C.C.L.T. 61 nd Ellen I. Picrd, "Ptients, Docrs nd (1981), Court of Cnd" (1981), Oxford J. Leg. Stud Supreme See, for exmple, Ellen I. Picrd nd Gerld B. Robertson, Legl Libility of 7. nd Hospitls in Cnd, 3rd ed. (Crswell: Toron, 1996), p.!. Docrs 3 ptients. n erlier er, physicin In something more thn skilled ws "counsellor", number, nd those tht did exist were little more thn generl helth cre. 5 unomy or t lest for greter role in ir own helth cre courts incresed, fit infuse discourse of rights in sw premised on old dge tht "docr knows besc. 7 reltionship, steps were necessry, so rgument goes, correct this Remedil tretment.

3 it lso creted inconsistencies between lw of generl results, nd tht of medicl negligence. This hs been result of negligence on prt of courts recognize nd enforce hesitncy obligtions tht necessrily corresponding..ptient ccompny ptient unomy t lw. Indeed, reviewing greter it ppers tht courts hve hisriclly filed jurisprudence, this dichomy, choosing insted dvnce discourse recognize "rights" while simultneously filing define obligtions tht of generl lw of negligence nd medicl negligence is in of re negligence. While contribury negligence is contribury well- estblished defence nd receives widespred ppliction in ir tretise Legl Libility of Docrs nd Hospitls in In 8 Picrd nd Robertson opine tht Cnd, explntion for one use of defence of contribury negligence in medicl limited ctions hs been perceived inequlity of physicin- negligence reltionship, withstnding ptient recognition of unomy ptients in or res of medicl lw, including, for exmple, of of consent tretment. 9 This perceived disprity, Picrd nd lw rgue, hs prompted mny courts set stndrd of Robertson tht ptients must dhere t n unresonbly low level, cre effectively precluding vilbility of this defence for reby defence of contribury negligence in medicl negligence ctions inconsistent given recognized unomy of ptients in or is res of medicl lw. of defence of contribury negligence in medicl preclusion ctions. To this end, this rticle will propose severl duties negligence ptients must dhere, filing which tht finding of contribury with respect ir negligence cre nd tretment is own These duties nd principles hve been rticulted in pproprite. lower court medicl negligence decisions tht hve discussed recent Ibid., t p Reibl, supr, foote 6. To be sure, re 9. few erly exmples of re ppliction of defence of contribury negligence in medicl negligence See, for exmple, Bernier ctions. Sisters of Service, [1948] W.W.R. 113 v. S C.); Murrin (Alt. Jnes, [1949] 4 D.LR. 403 (Nfld. T.D.); Hopitl 1,. de l'espernce Notre-Dme Lurent, [1978] S.C.R. 605, 3 C.C.L.T. 109, v. N.R. 593 sub nor. Lurent 17 Theoret. v. 10. Legl Libility of Docrs nd Hospitls, supr, foote 7, t p Contribury Negligence in Medicl Negligence Actions ] this shift in common lw undoubtedly produced luded While ccompny those rights. A ble hisricl inconsistency between generl ctions, it is less widely.ccepted nd pplied in medicl negligence ctions. negligence 10 defendnt-physicins. rticle will rgue tht tht limited This nd ppliction of use Accordingly, re is no bsis for continued

4 210 The Advoctes' Qurterly [Vol. 33 defence. While this jurisprudence is still t formtive level, it frmework for furr development in this provides of helth re 2..Overview of Defence of Contribury Negligence... exmining defence of contribury negligence in Prior context of medicl negligence ctions, it of contribury negligence principle it pplies rtctions in s As Prosser nd Keen e, "contribury negligence is generl. on prt of plintiff, contributing conduct legl cuse s tht he hs suffered, which flls below stndrd which he hrm required conform for his is protection". 1 Unlike or own such s ssumption of risk, contribury negligence is defences, premised on ide tht defendnt is in ny wy relieved of duty wrds plintiff. Rr, defence of contribury his negligence denies plintiff's recovery on bsis tht her own disentitles her from mintining ction. 2 behviour Picrd nd Robertson e, while t As time evidence of one on prt of negligence plintiff constituted complete br provincil legisltion now directs courts " pportion recovery, in proportion degree of fult found ginst dmges prties". 3 In Ontrio, respective 3 nd 4 of Negligence Act ss. order successfully dvnce defence of contribury In defendnt must estblish tht negligence is cuslly negligence, this respect, contribury negligence In relevnt only where plintiff nd defendnt hve ech be mterilly plintiff's loss through ir contributed 5 Moreover, it is instructive e tht in negligence. context defence of contribury negligence, plintiffmust of meet stndrd of cre s defendnt, nd must, t ll times, ct sme w. Pge Keen, ed., Prosser nd Keen I1. Torts, 5th edition, Hndbook on (St. Pul Minnesot, West Publishing, 1984), p Series Ibid., t pp Picrd nd Robertson, supr, foote 7, t p On issue of costs in 14. of contribury negligence, see, for exmple, cses v. Henshw, [1989] B.C.J. No: 1199 (QL), 16 A.C.W.S. (3d) 162 Ferguson See Negligence Act, R.S.O. 1990, (S.C.). N.I. c. Rinldi et l., eds., Remedies in Tort (Crswell: Toron, 2004 relese), 15. lw. will be useful review for pportionment of dmges in cses involving provide negligence. 4 contribury relted plintiff's loss. will resonbly nd in her own best interests. looselef ed., vol. 2, t p. 16II-23.

5 imbued with certin duties nd obligtions With respect ir re cre. As Picrd nd Robertson e, "[i]n crrying out se own [ptients] re expected meet stndrd of duties of cre ptient. If y do, nd brech of stndrd is resonble fctul nd proximte cuse of ir injuries, y re negligent nd ir compenstion will be reduced contriburily ptient's own negligence sole cuse of his injuries, in which ws ction ginst defendnt-physicin would be dismissed. 7 cse Duties nd Obligtions of Plintiff-Ptient in Medicl 3. Actions A Review of Jurisprudence Negligence ppers be newfound willingness re prt of some judges on recognize nd enforce certin duties nd obligtions tht ptients dhere to with respect ir own cre. While still t must level, se cses collectively signify formtive move wrds of ptient unomy in ctions involving contribury recognition Argubly, se cses reflect negligence. growing rediness on of courts recognize tht with heightened unomy of ptients prt responsibility with respect ir comesheightened cre. These own duty provide informtion physicin; nd (2) generl duty of ptient ct in her own best interests. (3) Ech of se duties will be discussed in detil below. The Duty Follow Instructions (1) of most importnt nd recognized duties emerge from One lower court decisions involving defence of contribury recent in medicl negligence ctions hs been duty of negligence follow physicin's instructions. The duties incumbent ptient on ptient in receiving instructions from treting physicin were described in. Wei Estte v. Dles. 8 While court in Wei Estte did Legl Libility of Docrs nd Hospitls, supr, foote 7, t p Ibid. 17. Wei Estte v. Dles, [1998] 03. No (QL), 78 A.C.W.S..(3d) ppeled nd ffirmed on or grounds [2000] O.J. No (QL), (S.C.); 135 O.A.C. 145 (C.A.). Contribury Negligence in MedicI Negligence Actions ] in context of medicl negligence ctions, ptients Accordingly, 16 Addlt onlly, t s lwys open for court find tht ccordlngly hisricl reluctnce of courts pply Notwithstnding defence of contribury negligence in medicl negligence ctions, nd obligtions include: duties duty follow physicin's instructions; (1)

6 212 The Advoctes' Qurterly [Vol. 33 del specificlly with defence of contribury negligence, did rticulte severl principles tht court pertinent ssessing re relevnt ptients' obligtions vis- i-vis instructions provided by physicin. Specificlly, court stted: t9 The ptient himself [h.s] responsibility only tke mediction prescribed but monir his own signs nd sympms nd comply s request for follow-up ppointments. The treting physicin with be expected follow-up every instruction given cn ptient. The physicin hs right expect ptient will follow his orher treting instructions. If ptient disgrees with docr's instructions he hs duty dvise docr. context of contribury negligence, se principles In best re by recent decision of Albert Court of Queen's exemplified in lbrhirn Bench Hum. 2 In Ibrhim, plintiff brought n v. ginst defendnt physicin lleging tht physicin hd ction his post-opertive cre of plintiff, who hd crpl tunnel surgery on her right hnd. Following undergone plintiff developed reflex symptic dystrophy, surgery, tht cused significnt pin. condition evidence, court held tht Reviewing th e relevnt stndrd of breched by filing dvise plintiff cre importnce of mintining of of her hnd fcilitte her use cre, even though doing post-opertive would cuse her pin. The so lso found tht defendnt hd filed properly follow court up plintiff with tht she underwent progrm of ensure ssist with her pin mngement. Finlly, physiorpy court tht defendnt i'ound negligent for filing refer plintiff ws sur.geon or neurologist when he becme tht she ws wre recovenng s well s nticipted. t prs For Ibid., erlier exmple of duties of ptient n pproprite follow-up ppointments, see, for exmple, Fredette rrnge v. (1986), 29 D.L.R. (4th) 534, [1986] 5 W.W.R. 222, 4 B.C.L.R. (2d) Wiebe (S.C.). In tht cse, plintiff, yer-old girl, ws found be negligent for filing re-ttend for contriburily follow-up ppointment filed bortion. following W.W.R. 564, 33 Alt. L.R. (4th) 323 (Q.B.). The duty [2005]6 follow instructions ws lso discussed in Robinson physicin's Syndenhm District v. Corp. (2000), 130 O.A.C. 109 (C.A.). In Syndenhm, only Court Hospitl Appel considered defence of contribury negligence. The ppellnt of tht tril judge erred in filing consider this issue lleged tril. t Court of Appel found tht tri il judge should hve Although issue in his resons, since it considered rised t tril, re ws ws evidence on record support such sufficient finding. On this point, see prs of decision of Court of Appel. n been negligent in physicin hd

7 court lso found tht plintiffws prtilly responsible for her Evidence presented t tril reveled tht plintiff hd dmges. true stte of her post-opertive misrepresented cre Specificlly, she filed inform physicin tht she defendnt, following his dvice. The plintiff lso conceded tht or ws specilists hd dvised her medicl her right hnd prevent use fct tht evidence indicted tht plintiff might hve precise consequences of her inction. Writing for known filure [sic] cotnply with se directives does by men tht she is from her inction; she knew tht her physicins believed she excused benefit from physiorpy nd from continued would of her use hnd. right on foregoing, court pportioned dmges t 25% Bsed 75% defendnt-physicin. plintiffnd principle tht The ptient's filure follow physicin's my constitute contribury negligence instructions lso echoed ws decision of Ontrio Superior Court of Justice in Rupert in v. 23 In Rupert, physicintreted plintiff for Toth. condition believed be nsl polyps. During surgery, it he determined tht ws plintiff did suffer from nsl polyps, but ctully inverting in nsl cvity. The plintiff ppillom subsequently ws but ws instructed tht relesed, CT scn would be necessry precise nture nd scope of disese. Accordingly, discern sked book plintiffws follow-up visit with his docr. Evidence tril reveled tht physicin hd discussed with plintiff t consequences of filing hve furr surgery. The CT ws scn nd nor physicin prtilly conveyed results conducted This second physicin instructed plintiff plintiff. rrnge Evidence lso defendnt-physicin. defendnt flgged plintiff's CT results nd his office stff rrnge instructed ppointment with n Unfortuntely, neir. plintiff plintiff. defendnt ever nor Ibrhim, ibid., t pr. i Ibid. (emphsis dded) [2006] O.J. No. 882 (QL), 38 C.C.L.T. (3d) 261 (S.C.). Contribury Negligence in Medici Negligence Actions ] findings of negligence ginst physicin, Notwithstnding z stiffness, se fcrs tken in ccount, court held tht With prtilly responsible for her plintiffws losses. It is instructive own e tht finding of contribury negligence mde despite ws Bielby J. stted: 22 court, tht she did know full extent of risks she The.fct tking ws furr consulttion with reveled tht

8 this ppointment. Three yers lter, plintiffpresented scheduled his docr's office with debilitting hedches. A second CT scn t ordered which showed destructive lesion cused by ws The ptient suffered seizure few dys lter nd ws ppillom. for four months until his deth. hospitlized.evidence, court held thtre ws no Reviewing obligtion on prt of physicin pursue ptient recognized ensure tht follow-up consulttions were rrnged. The court tht, in this cse, physicin hd right expect tht ed would follow his instructions, ing tht. physicin/ ptient defendnt-physicin ws found be 50% lible for Ultimtely, follow up nd provide explicit instructions plintiff filing physicin for negligence resulting in birth of child with spin her In response, defendnt lleged tht bifid. in filing follow up with defendnt in timely fshion. negligent defendnt rgued tht plintiff ws negligent in Specificlly, ttend for Stndrd prentl check-up t 16-week filing of her pregnncy. mrk plintiff hd ttended t defendnt physicin's office The tht she ws pregnnt. The defendnt confirmed this suspecting nd ordered routine ultrsound. The results of suspicion reveled tht fetus ws vible nd plintiff ws ultrsound nd.hlf weeks in her term. These results were eight plintiff by phone, t which point she ws communicted ld tht she would be fforded with opportunity undergo lso second ultrsound t 16-week mrk of her pregnncy. Evidence during tril confirmed tht it ws defendnt's presented prctice offer routine ultrsound t this time. stndrd finding of fct ws mde t tril tht hd Additionlly, ttended for routine ppointment t 16 weeks, plintiff would hve reveled lrge spin bifid nd fforded ultrsound plintiff opportunity teminte pregnncy. 27 Ibid., t prs We cknowledge tht this holding my be inconsistent with decision 25. v. Hmiln, infr, foote 49. Dumis [1999] B.C.J. No. 650 (QL), 86 A.C.W.S. (3d) 981 (B.C.S.C.) The Advoctes' Qurterly [Vol. 33 ptient reltionship is two-wy street. 24 Here ptient filed post-opertive consulttions, despite fct tht he ws rrnge instructed do so by more thn one helth cre prctitioner. clerly of filing hve furr 25 surgery. regrding consequences of ptient follow physicin's instructions ws lso duty The upon in Ptmore (Gurdin of) v. Wersn. 26 elborted involved wrongful birth ction by plintiff ginst Ptmore

9 plintiff filed return defendnt's office t 16- The mrk of her pregnncy. When she did re-ttend, she week slightly ws thn 19 weeks pregnnt. In bsence of ny bnorml more nd two prior "uneventful" deliveries,.defendnt sympms, ws vilble in British Columbi for non-lethl bortion up resons 20-week mrk of pregnncy. until ultrsound. To this end, it is instructive e tht court missed undertke strict ppliction of defence of contribury did be determined s plintiff or defendnt wher responsible for filure ws second ultrsound t 16 weeks. 28 For her prt, plintiff obtin tht she lleged under impression tht nurse would ws her remind her of subsequent ppointment. The telephone grounds of credibility, court rejected plintiff's On tht she hd ttended t defendnt's office while he contention wy on holidy. The court lso went on find tht itws ws nd defendnt who should crry responsibility plintiff ultrsound (nd her new due dte), need for second routine t 16 weeks, nd tht she ultrsound expected see docr next ws September 15. Even if she filed bsorb ltter due her worry on previous week s helth of child she ws crrying, she over well wre of usul timing for follow-up prentl, visits. The ws hd shifted her. She hs estblished ny fult on prt of oius Dr. Wersn for her filure visit him gin until Ocber 28, by which time, gesttionl ge of fetus she 1994, Crrying ws ws over 19 weeks. when instructed do so, ws reinforced in Atck consulttions v. 3 Atck involved n ction by plintiff, who himself Cstle. ws ginst defendnt, n orthopedic surgeon. After neurologist, ccident, plintiff underwent hip replcement surgery, skiing Ibid., t pr Ibid., t pr Ibid., t pr (2003), 122 A.C.W.S. (3d) 1155, WL (Ont. S.C.) ] C ntribury Negligence in MedicI Negligence Actions 215 concluded o lte order n ultrsound. At tht time, evidence, tril judge held tht it Reviewing plintiff ws defendnt who should ber responsibility for nd negligence, but rr chrcterized issue sserted tht she hd been defendnt's office in plintifflso period while he interim wy on holidy. ws for missed ultrsound. Specificlly, court stted: 29 I find tht plintiff ws ld on August 17 bout positive results of obligtion follow instructions Of The physicin, nd duty of ptient rrnge pproprite follow-up specificlly,

10 216 The Advoctes' Qurterly [Vol. 33 by defendnt. The llegtion of negligence relted performed defendnt's dignosis, nor surgery, but rr, of his post-opertive qulity cre. n response, defendnt-physicin pleded tht plintiffws I in filing seek follow-up tretment when he continued negligent following hipreplcement surgery. Agreeing with suffer position, court held tht plintiff's filure defendnt's ttend to his post-opertive properly ws sole cuse of his cre my opinion, filure of In ptient return for scheduled or seek.furr ssistnce from his/her physicin, ppointment, or physicin, where nor specific ppointment is mde my no de.fence n llegtion of professionl negligence in constitute circumstnces in which The ptient will be held responsible for filure rrnge follow-up ppointments where necessry his were discussed in Cottrelle lso Gerrrd. 32 In Cottrelle, plintiff v. n ction ginst her fmily physicin for dmges resulting brought mputtion of her left leg below knee. Evidence from during tril reveled tht plintiff, presented 54-yer-old hd been dignosed s non-insulin-dependent dibetic in womn, erly 20s. The plintiff's former physicin pssed this informtion her on defendnt when he retired in file, former physicin informed defendnt tht plintiff's dibetes ws well controlled. Evidence lso reveled plintiff's plintiffws resistnt ide of tking insulin tret her tht 33 dibetes. April of 1993, plintiff becme In of sore between wre nd fourth e of her left foot nd spoke defendnt's third On bsis of informtion provided, defendnt receptionist. plintiff with Kenelog prescribed Medicl records crem. tht defendnt exmined plintiff three times in reveled 1993, but only on one occsion did he exmine her left foot. My this exmintion, defendnt prescribed nor Following In June 1993, plintiff woke nd throbbing crem. her es. She subsequently ttended t between nerby hospitl Ibid., t pr. 206 WL (emphsis dded). 31. [2001] O.J. No (QL), 111 A.C.W.S. (3d) 355 (S.C.); revd 32. or on 67 O.R. (3d) 737, 233 D.L.R. (4th) 45, 178 O.A.C. 142 (C.A.), leve grounds ppel S.C.C. refused 236 D.L.R. (4th) viii. Ibid. (hede). 33. loss. Writing for court, Justice Power ed: 31 cse where dmges re lleged flow from pin nd suffering from non-tretment, resulting t lest, my constitute contrib- or negligence on prt of ptient. ury Upon trnsferring

11 dignosed physicin ulcer nd provided plintiff with n This physicin lso instructed plintiff return ntibiotics. emergency deprtment visit her fmily physicin if her or deteriorted. The plintiffnext visited defendnt t sitution of July, t which time her foot beginning so swollen she ws ws wer shoe, ble wlk normlly. The defendnt did or pliitiff's foot, but rr referred her exmine dermlogist..physicin concluded tht foot ws infected nd tht emergency infection ws.spreding proximlly, nd becuse of this, plintiff subsequently brought The ction ginst physicin n losses she incurred for result of mputtion of her left leg. s properly her condition, nd tht he dignose negligent in filing ws exmine her foot when she ttended t his office in July In defendnt submitted tht plintiff ws response, negligent for her loss. Specificlly, defendnt contriburily tht plintiff rgued negligent in her own cre, s she ws complictions of dibetes nd importnce of foot undersod The defendnt lso rgued tht plintiffws t fult for her cre. return defendnt's office filure ttend t emergency or evidence, tril judge held tht defendnt Reviewing ws in his tretment of negligent nd in his filure exmine sore foot in July Notwithstnding this finding, tril plintiff's lso found tht plintiff judge prtilly responsible for her ws Specificlly, court held tht plintiff should hve losses. emergency deprtment when her foot begn returned worsen visit defendnt-physicin in July The tril following concluded tht plintiff should hve sought tretment judge Contribury Negligence in MedicI Negligence Actions ] n emergency physicin where mined her. The emergency ex, two weeks lter, plintiff ttended t Approximtely deprtment of her locl hospitl. The emergency emergency ed n odour emnting from foot nd physicin indicting presence of bcteri. The presence of blck tissue, leg should be mputted below knee. The plintiff did plintiff's her from defendnt until she ws recovering from her when his office clled book ppointment with mputtion, dermlogist. Specificlly, plintiff lleged tht defendnt hd filed when her sympms begn deteriorte nd foot deprtment develop n odour. 34 begn her foot begn drken nd develop "when odour". 35 n Ibid., t pr Ibid.. t pr. 77.

12 218- The Advoctes' Qurterly [VoI. 33 cses of lbrhirn, Atek nd Cottrelle illustrte, As of one duties tht courts.hve recognized specific being subsumed s duty follow instructions is duty under ptient ttend on follow-up tretment when instructed for do so by physicin. Ontrio Superior Court of Justice in Georghides The McLeod v. upon this principlefl 7 elborted Georghides, plintiff brought In ction ginst n n emergency physicin, for dmges sustined defendnt, s of undignosed ppendicitis. Specificlly, plintiff lleged result defendnt tht negligent in filing provide dequte ws instructions. Evidence presented dischrge tril indicted tht t plintiffhd beenborn with thlssemi,. genetic blood disorder which insufficient hemoglobin is prod uced, cusing nemi. The m ws lter dignosed with membrnous glomerulonephritis, plintiff cusing deteriortion of kidney. This condition condition subsequently ws by plintiff's fmily physicin. monired plintiff's condition remined stble for The yers, however, in 1998, mny fmily physicin observed furr decline nd referred physicin's es from Jnury 2000 indicted tht fmily of kidney trnsplnt possibility discussed with plintiff, ws Mrch 2000, plintiff felt unwell nd ttended In deprtment where defendnt dignosed him with emergency kidney infection, nd provided pyelonephritis, prescription. Over next few dys, plintiff's condition worsened, nd some t his ppendix ruptured. The plintiff immeditely returned to point, emergency deprtment nd seen by different physicin nd ws surgeon. Emergency surgery referred performed remove ws liquefied ppendix nd clense bdomen of widespred The plintiffspent next five dys in intensive infection. nd tl cre 21 dys in hospitl. On ccount of kidney mlfunction, of t prs Justice Leitch rejected defendnt's submission tht Ibid., negligence should ccount for contribury 40-60% reduction of plintiffs dmges. This rejection ws bsed primril, on tril judge's tht reltionship between plintiff nd defendnt hd finding down" following July visit, nd tht pli.ntiff perceived tht "broken defendnt hd been dismissive of her condition. [2005] O.J. NO (QL), 138 A.C.W.S. (3d) 1185 (S.C.). 37. tril judge ordered Accordingly, reduction in dmges of 20% for plintiff's negligence. 36 ccount plintiff nephrologist. The nephrologist confirmed dignosis renl disese nd implemented of tretment pln. The plintiff lter testified tht he did lthough specificlly recll converstion. this 6.

13 did recover. A regulr progrm of dilysis continued for kidneys one yer until trnsplnt surgery ws performed. pproximtely reviewing evidence, court held tht emergency In ws negligent in filing. provide dequte dischrge physicin plintiff. The court ed tht se instructions instructions hve included rtionliztion of his dignosis nd n should of steps be tken should plintiff's condition explntion deteriorte. this, court found contribury negligence on prt of Despite plintiff, nd ordered 25% reduction in wrd. Specificlly, court ccepted defendnt's submission tht plintiff's dequtely monir his kidney disese, nd follow up filure specilist s instructed by his fmily physicin contributed with loss. The plintiff testified tht he hd trusted his physicin's his nd hd returned hospitl when his condition dignosis on bsis of this trust. Rejecting this submission, worsened his pst experiences with physicins nd his disbelief of Given presented by Dr. McLeod, it is resonble ccept Mr. dignosis sttement he now trusted docr nd relied only on his Georghides' Such would be n bdiction of his own responsibility himself. dvice. compel his return hospitl [sic]. Mr. Georghides wited chose beyond time period stted by Dr. McLeod for mediction even become effective. He must, refore, ber some libility for his own ction. Ontrio Court Justice decision Anderson The Superior of NowczynskP 9 v. lso illustrtes duty of) Gurdin (Litigtion is plced on ptient follow physicin's instructions. In tht plintiff consulted defendnt fter experiencing Anderson, muscle pin. Months fter consulting with defendnt, with mssive hert ttck. She subsequently brought n plintiffsuffered evidence presented during tril indicted tht Expert hd met relevnt stndrd of cre nd hd tken ll defendnt Ibid., t pr [1999] O.J. No (QL), 93 A.C.W.S. (3d) 170 (S.C.). 39. Contribury Negligence in MedicI Negligence Actions ] plintiff lso commenced emergency dilysis. Despite this, his court stted: 38 He ignored recommendtions from his girlfriend nd fmily. They of breth nd chest pins. Although plintiff hd shortness hisry of hert disese, defendnt dignosed plintiff fmily for negligence ginst her docr for misdignosis of her ction rtery disese. coronry resonble nd pproprite steps in his dignosis. Medicl evidence

14 220 The Advoctes' Qurterly [Vol. 33 tht plintiff's sympms of crdic problems reveled bsent were time of defendnt's dignosis, reby llowing for t dignosis tht ultimtely reched. ws finding tht defendnt hd Despite breched stndrd of cre, court relevnt On consider plintiff's went negligence in this contribury Specificlly, court cse. effect of plintiff's filure considered tke defendnt's nd seek medicl ttention should her condition dvice worsen. Ptients hve physicin. generl duty follow instructions nd ct in ir generlly best interests. If y do do so, nd if own of this stndrd is fctul nd proximte brech of ir cuse y cd be found be contriburily negligent Ms. injuries, filed follow Dr. Nowczynski's instructions Anderson seek furr ttention when problem worsened. In fct, evidence is medicl in lte summer of 1995, Ms Anderson suffered tht serious episode shortness of breth, which required her of lie down for pproximtely hour. Tht episode would hve resonbly constituted one serious upon which Ms. Anderson regrettbly did wrning ct... Although Nowczynski's dignosis of coschodritis would obviously hve Dr. quite ressuring Ms. Anderson, it does been excuse sd relity Ms. Anderson hd tht responsibility ct prudently in her own some interests by re-ttending t Dr. Nowczynski's office best t nor or office [should her condition deteriorte]. physicin's on foregoing, court held tht hd negligence been found Bs.ed physicin, court would hve pportioned libility ginst t defendnt nd 25% plintiff. 75% The Duty Provide Informtion Physicin (2) with promulgting Along generl duty follow physicin's recent medicl negligence cses involving defence of instructions, negligence lso indicte tht re contribury be incresing my on prt of ptient provide complete, relevnt obligtions treting physicin. While informtion lw in this re cse dmittedly sprse, re is certinly is for furr development room this duty in future of Such development my be bsed on cses. expecttion tht resonble ptient will provide his physicin with ccurte medicl hisry, including informtion relted n Ibid., t pr Ibid., t pr on this filure, court observed: 4 Commenting onus of proving contribury negligence The with defendnt rests

15 2007] Contribury Negligence in Medicl Negligence Actions 221 explined by Albert Court of Queen s Bench in Rose v. Rose, plintiffws involved in In mor vehicle Collision where sustined injuries his neck nd bck. In months following he plintiff suffered two furr incidents of hed trum. collision, visits defendnt-physicin, plintiff filed During se multiple incidents of hed trum, disclose did he inform his nor tht he physicin experiencing severe hedches, dizziness nd ws vision. On bsis of informtion vilble, blurred physicin t dignosis of virl gstritis. The plintiff rrived ws dignosed with ppilledem, lter condition tht subsequently onset of blindness. At tril, it precipitted greed tht hd ws been dignosed erlier, his sight could hve been sved. plintiff for plintiffrgued tht defendnt Counsel negligent in ws properly dignose plintiff's illness in filing timely fshion, in,no! n d specilist. 43 In response, counsel for rgued tht plintiff ws contriburily negligent for erennt inform defendnt of his sympms nd of subsequent filing of hed trum. incidents ction ginst physicin, Dismissing explined court precise nture nd scope of duty of owed by ptient in cre ll relevnt medicl informtion disclosing physicin. court, Justice Frser stted: for duty ptient The himself is do everything resonbly owes ensure he is hrmed, filing which he exposes himself necessry submission he hs been contdburily negligent in losses tht by him. Tht being so, surely it is resonble in dischrging suffered duty cre ptient owes himself tht ptient should be held of nd ccountble for disclosing responsible his docr ll relevnt nd informtion of which he is pertinent in order permit his docr wre mke proper dignosis. Both prties in docr-ptient reltion hve obligtions docr ptient nd ship ptient himself-- nd inherent in dischrge of such obligtion is need fully with ech or. To be effective, communicte communiction be bilterl Docrs re mind reders nd it would be must nd re!fir tret docrptient [sic] reltionship unrelistic s in which docr were constntly being tested one see if he could 44. Ibid. t p. 21 (emphsis dded). of description of sympms, nd onset list of sympms, if ny. medictions, prescribed provide informtion The t.h,e physicin succinct 2 duty ws Dujon. Writing [1990] A.J. No. 844 (QL), 108 A.R. 352 (Q.B.) Ibid. (hede). 43.

16 222 The Advoctes' Qurterly [VoI. 33 ptient's medicl problems with limited solve no relevnt or frotn key h formtion ptient. source decision in Rose indictes, courts hve been willing As plce weight significnt ptient's filure provide full ndfrnk on disclosure physicin when ssessing libility nd dmges. ws lso demonstrted in recent decision of This nd Lbrdor Supreme Court, Ross Estte Newfoundlnd v. n emergency physicin for his lleged misdignosis of ginst n dissection. The decesed, ortic pregnnt womn, ttended fter experiencing cute chest pins. During this initil visit, hospitl decesed filed disclose tht she hd significnt fmily hisry hert disese. She lso filed revel treting physicins of she hd previously been dignosed with Mrfn syndrome, tht tht cused degenertion of ortic wll. She condition ws nd observed for two dys, following which she dmitted ws A week lter, she re-ttended, gin complining of dischrged. chest pin. She ws subsequently trnsferred tertiry cre severe where surgicl intervention ws unsuccessful nd she died. The centre ws delivered by cesren section, but lso died due child relted mor's condition. complictions evidence, court held tht Reviewing be held negligent when could ptient delibertely concels hisry tht would significntly, lter physicin's relevnt Reviewing evidence, court mintined tht dignosis. both visits emergency deprtment, physicins hd during decesed wher re sked fmily hisry of hert ws nd wher she problems suffering from ny medicl problems. ws both occsions, decesed filed On truthfully, fering nswer if she did, this would prompt furr testing. Tking se fcrs tht ptient owes duty herself do everything resonbly A necessry tht she is properly dignosed by her physicin. As prt of tht ensure ptient must disclose physicin ll relevnt nd duty, informtion in order permit physicin mke pertinent proper of her medicl condition. dignosis re hs been While considerble mount of jurisprudence relted d uty provide informtion physicin, cses [2006] N.J. No. 76 (QL), 254 Nfld. & P.E.I.R. 319 (Nfld. & Lb. S.C.T.D.), Nfid. & P.E.I.R. 343 (C.A.). ffd 46. Ibid., t pr. 8 (emphsis dded). s Hiscock. Ross Estte, fmily of decesed commenced In ction n treting physicin in ccount, court stted: 46

17 Contribury Negligence in Medicl Negligence 2007] 223 Actions provide bove firm foundtion for expnsion of duty through future jurisprudence. Both Ross Estte nd Rose principle tht filure of ptient disclose pertinent informtion physicin will weigh hevily in pportionment of dmges, especilly where it ws resonble for physicin on ptient's reported medicl hisry rely lck reof. Indeed, in both or ctions ginst defendnt-physicins cses, were in ir entirety. Applying generl principles dismissed negligence lw, it follows of ptient will be found contriburily negligent tht re is where filure disclose nd/or ccurtely disclose informtion relevnt physicin which is resonbly relied nd upon in negtive outcome for ptient, wher.results be delyed it inccurte dignosis, or n dverse rection or complictions or The Generl Duty of Ptient (3) Act in His Best Interests Own with duty follow instructions Along duty provide informtion, nd is developing uthority within re of defence of contribury context tht provides for negligence generl duty on ct in ir ptients best interests. The duty of plintiff own resonbly is ct novel proposition. Indeed judicil this effect hve been evident in pronouncements lw for cse time. A cse tht is often cited in this respect is decision ofth4e some v. Stewrt. involved Crossmn clim for dmges by plintiff ginst her The plintiff dermlogist. dignosed with discoid lupus ws erymsis, fcil skin disorder, nd hd been prescribed drug clled chloroquine for purpose of tretment. The defendnt th.e plintifffive times over sw five-month period nd on ll but occsion hd provided one furr prescriptions for plintiffwith When lst prescription drug. complete, plintiffobtined ws drug from slesmn who supplied docr for whom she s receptionist. By this method, she worked ble obtin drug ws one-hlfofprice pyble phrmcy, t without nd for prescription. The defendnt did need know tht plintiff obtining mediction in this ws mnner. defendnt-physicin ttended Menwhile, seminr where he informed bout risks of long-term ws of drug tht hd use previously prescribed plintiff. In been cses, ptients developed some retin tht cused blindness dmge ner- or Upon returning from seminr, blindness. defendnt consulted (1977), 82 D.L.R. (3d) 677, 5 C.C.L.T. 47. (B.C.S.C.). 45 evidence British Columbi Supreme Court in Crossmn 7

18 224 The Advoctes'Qurterly [VoI. 33 ll ptients whom he hd prescribed drug, including with plintiff, nd rrnged for m hve exmintions. The eye exmintion reveled plintiff's.eye cornel chnges, which some this, plintiff Despite ld ws recent use of drug. indicted results of her eye exmintion did tht indicte ny dmge retin. The plintiff continued tke drug for nor two yers, it through slesmn until he retired. Once slesmn cquiring plintiff returned defendnt, who prescribed retired, for nor six months. The defendnt provided drug without knowledge tht plintiff hd been prescription mediction continuously for previous two yers: tking retinl dmge Subsequently, discovered in plintiff's eyes, ws in blindness. resulting court pportioned libility t two-thirds plintiff nd The In so doing, court explined wht person in plintiff's position should hve known, nd resonble 48 stted: resonble ptient is required possess specil knowledge While specific risks involved in using "prescription" drugs it relting me tht ordinry common sense would dictte tht it is seems in extreme do following things: foolhrdy obtin "prescription" drugs from To unorthodox source. n continue use drugs To prolonged bsis without obtining on renewls. "prescription" continue use drugs on To prolonged bsis without consulting physicin (In this "prescribing" lmost two yers) cse respect issue of pportionment of libility, With view, this In cse where pportionment of blme is so tht libility should be pportioned difficult 50/50 bsis. I hold tht on plintiff must tke mjor shre of blme for trgic plight which she finds herself. If plintiff hd cted with in resonble ny of prudence permnent dmge degree high stndrd of cre ws tke of custive fcrs but mjor cuse. In se one I hold plintiff circumstnces two-thirds blme nd ws cses following Crossmn hve emphsized ptient's duty Or ct resonbly. Moreox er, it ppers tht recent hve been cses Ibid., t prs Ibid. 49. one-third defendnt. held: 49 her eyes would hve resulted. The defendnt's filure defendnt one-third blme.

19 2007] Contribury Negligence in Medicl Negligence Actions 225 willing hold ptients higher stndrd of cre thn would more trditionlly been hve This is evidenced in cses such s cse. Dumis v. involved n ppel by defendnt-physicin from Dumis tril tht hd wrded plintiffdmges j dgment bsis of on filure dequtely physicin's her of possibility of skin wrn following "tummy tuck" opertion. 51 One of grounds for loss withstnding instructions from defendnt-physicin surgery, refrin from doing so on more thn one occsion. 52 Court of Appel ed tht re The cler evidence tht ws post-opertive smoking contributed her skin loss, ptient's even be tken hve known tht her ctions were likely contribute her injuries. 53 The Court of Appel ed tht tril judge this conclusion on bsis tht defendnt hd reched ptient of precise reson for telling plintiff informed from smoking following surgery. refrin this line of resoning, Court of Appel held tht Rejecting judge hd mispprehended nture of nlysis pplicble tril this cse. Specificlly, Court of Appel ed: 5 in respect, in our view tril judge erred in suggesting tht With coum only be found be contriburily negligent by smoking if Dumis resonbly knew nture nd chrcter of potentil injuries she could result. The proper question sk is wher she ok tht cre o.fhersel.fin circumstnces... In this cse, she persisted resonble smoking fter opertion, despite cler nd repeted dvice from in Dr. Hmiln tht she should do so. In our view tht behviour ws could determine extent which smoking hd court plintiff's loss, dmges contributed pportioned t 50% were [1998] A.J. No. 761 (QL), 179 W.A.C. 63, 219 A.R. 63 (Ait. C.A.). 50. Ibid.. t pr Ibid. 52. Ibid Ibid., t pr. 16 (emphsis dded) A.Q. Hmiln, 5 decision of Albert Court of Appel. ppel ws tht tril judge hd filed ppropritely consider role of ptient's own ctions in contributing her loss. Albert Court of Appel considered wher Specificlly, ws negligent becuse she continued smoke following her ptient extent of this contribution though unknown. The tril judge ws tht resonble person in ptient's position should concluded resonble. court held tht plintiff Accordingly, contriburily ws by continuing smoke following her surgery. Becuse negligent

20 defendnt nd 50% plintiff, pursunt s. 1 of Albert's Negligence Act. 55 Contribury duty of ptient ct in his/her best interests ws lso The by British Columbi Supreme Court in Zhng v. Kn. 6 discussed involved n ction by plintiff ginst her physicin for Zhng resulting in birth of child with Down's Syndrome. negligence 37 yers old when she becme pregnnt. After The with her physicin in Hong Kong, plintiff ws consulting tht on ccount of her ge she ws t heightened risk of informed child with Down's syndromefo!lowing this. delivering plintiff trvelled Vncouver consult with consulttion, defendnt regrding her pregnncy. During this meeting, negligent in informing plintifftht n mniocentesis ws ws Evidence presented during tril reveled tht vilble. could hve ordered n mniocentesis in n expedited defendnt The court ed tht this procedure would hve lerted fshion. fct tht foetus hd Down's syndrome, nd would plintiff fforded her opportunity terminte pregnncy. hve finding of negligence on prt of Notwithstnding court lso found tht plintiff ws p.rtilly defendnt, for her filure hve n mniocentesis during her responsible The court ed tht plintiff ws "sophisticted. pregnncy. submission tht she trusted defendnt's position tht it plintiff's "o lte" hve n mniocentesis performed. Specificlly, ws hve ccepted Mr. Fung's suggestion tht she trust reluctntly But she, knew from wht she hd red nd from wht [her fmily docr. t pr. 17. Section of Albert's Contribur), Negligence Act, R.S.A. Ibid., c. C-23 provides tht if extent of ech prty's negligence cn be 1980, libility should be pportioned t 50%. See lso Simon v. Luis, determined, O.J. No (QL) (S.C.) where plintiff's smoking resulted in [2000] reduction in libility. 10% B.C.J. No. 164 (QL), 15C.C.LT. (3d) (B.C.S.C.). [2003] 226 The Advoctes'Qurterly [VoI. 33 requested n mniocentesis. The defendnt incorrectly plintiff tht it ws "o lte" hve test. Severl months,lter, stted delivered child with Down's syndrome. plintiff British Columbi Supreme Court found tht defendnt The experienced businesswomn" who hd conducted reserch on nd pic ofmniocentesis. The court lso displyed scepticism court ed: 7 Ms.. Zhng sid she doubted Dr. Kn's dvice tht it ws o lte tke test. She ld Mr. Fung so. He ld her trust Dr Kn becuse he ws docr [...] Ms. Zhng, who ws.yet mrried Mr. Fung, ppers 55. Ibid. t pr. 62.

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