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Cases Highlight Patient Duties in Malpractice Matters

The Advocate Files: Personal Injury | Patient Duties in Malpractice Matters


Toronto Personal Injury Paul Cahill - Serving Toronto, Oakville and GTA`

Cases Highlight Patient Duties in Malpractice Matters

Comment by: Paul Cahill – Toronto Personal Injury Lawyer at Will Davidson LLP.

Health-care professionals aren’t the only ones with standards to meet when it comes to medical malpractice claims, Toronto medical malpractice lawyer Paul Cahill tells us.

“Patients also have certain duties and responsibilities when seeking medical treatment,” says Cahill, a partner with Will Davidson LLP.

“They are expected to meet the standard of a reasonable patient,” he adds, noting that any failure to clear that bar could expose plaintiffs to a finding that they were contributorily negligent and should, therefore, be held partially responsible for the damages associated with an injury.

During treatment, Cahill says there are three main duties for patients to fulfil:

  • to provide information to the physician
  • to follow a doctor’s instructions
  • to generally act in their own best interests.

He says four decisions delivered by Canadian courts over the last few years offer guidance about how and when the defence of contributory negligence will be applied.

In this Ontario decision, a man sued his long-time ophthalmologist after suffering a serious loss of vision in his left eye. The judge in the case ruled the doctor missed the signs of a detached retina during an initial consultation and that his negligence caused the loss of vision.

However, the judge ruled the patient was contributorily negligent for his failure to inform the doctor about a significant deterioration in his vision within days of his first appointment, apportioning 40 per cent of the blame for the injury.

“If a patient withholds or fails to let the doctor know about certain important clinical information or medical history, and the lack of information affects the doctor’s ability to determine a diagnosis, then the patient can be found contributorily negligent,” Cahill explains.

He says a B.C. case shows that courts are prepared to find contributory negligence even when patients lack accurate information about their condition.

The plaintiff in the case was incapacitated by TB meningitis, leaving him unemployable and incapable of managing his own affairs. He had been sent for a CT scan after complaining of back pain but failed to turn up for an enhanced scan requested by the radiologist.

Had the scan been done, the judge found the condition would have been spotted at a time when it was completely treatable and a full recovery was possible.

“The medical advice that [the patient] had consistently received until the time he attended for the CT scan was that he likely had a benign disc or muscle problem. That diagnosis, in the result, was incomplete, as the CT scan would soon reveal. Nevertheless, [the patient] conducted himself on the basis of the working diagnoses of his doctors, and it is therefore not accurate, in my view, to say that he was engaging in self-diagnosis,” the judge wrote.

“It is, however, the case that [the patient’s] lack of accurate information about his medical condition and its potential seriousness was in part a consequence of his own actions in failing to follow up as he had been instructed, particularly in light of ongoing back pain, and for that he must bear some liability for the outcome in this case,” the judge added, concluding the patient was responsible for 30 per cent of the damages.

Another B.C. judge split responsibility equally between a patient and her doctor in a case involving a child born with Down syndrome. The mother, who was in her late 30s when she gave birth, sued one of her doctors after claiming his advice prevented her from having an amniocentesis, which could have revealed the condition and given her an opportunity to abort the pregnancy.

The judge found the doctor liable due to his mistaken advice that it was too late for the test, but said the mother and father of the child “must share the responsibility for there being no amniocentesis undertaken during this high-risk pregnancy,” noting that the woman’s own research caused her to doubt the physician’s conclusions.

But patient failures will not always be enough to ground a claim of contributory negligence, as one Alberta case shows, says Cahill.

The patient sued her orthopaedic surgeon after an unsuccessful procedure carried out on her broken wrist. A majority of the province’s appeal court upheld a trial judge’s decision to find the doctor liable for his failure to inform the patient of an alternative treatment, according to the decision.

The majority also agreed with the trial judge’s decision to dismiss the doctor’s defence of contributory negligence due to the patient’s failure to inform him of concerns about the mobility of her wrist

“This argument is without merit on these facts. The duty of a doctor to disclose information to a patient does not arise only after the patient has asked specific questions or informed the doctor of specific concerns,” the judges wrote.

“The patient is in a position of reliance on the doctor’s special skill, knowledge and experience. Moreover, as already noted, the doctor did not provide this patient with sufficient information to trigger the responses that might have led her to disclose her concerns or ask further questions. Had she even been advised of the seriousness of the injury, she might have asked if there were other known procedures that might potentially work and told him of the importance to her of use of her arm.”

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Paul Cahill focuses his practice on serious personal injury and medical malpractice claims. If someone you care about has been seriously injured or killed due to medical malpractice, Contact Paul Cahill for a free, no obligation consultation.

View the profile of this Toronto medical malpractice lawyer


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