Medication is often prescribed to claimants who are injured in motor vehicle accidents to help manage pain and to help control psychological injuries such as depression.
What happens if your doctor prescribes a medication incorrectly and you suffer from additional or worse symptoms as a result? Is ICBC liable for the full extent of your injuries even if they were made worse by your doctor? Are you at fault for following your doctor’s incorrect advice?
If there is medical mismanagement by a doctor or by the injured claimant, then this may have an impact on the ICBC claim as this will be considered an intervening event that breaks the chain of causation between the motor vehicle accident and the injuries resulting from it. In the legal world, this is referred to as Novus Actus Interveniens.
ICBC can rely on the defence of Novus Actus Interveniens to reduce their liability to the injured claimant and instead offset it against the doctor or against the injured claimant. In essence, ICBC will argue that the intervening event made the motor vehicle accident injuries worse and that ICBC is not responsible for this.
In order for a defence of Novus Actus Interveniens to succeed in the context of subsequent medical negligence, ICBC must prove:
- that the medical care provided was negligent
- that it was not reasonably foreseeable that the injured claimant would suffer further loss or damage because of that negligence
- that the act was sufficiently new such that it severed the chain of causation.
This issue was considered in Brown v. Lalani 2005 BCSC 785. In that case, the plaintiff suffered multiple injuries including a brain injury in a motor vehicle accident. He was prescribed Topomax by his treating doctor. ICBC argued that this prescription was negligently prescribed and that many of the symptoms the injured claimant was claiming of related to the prescription, not the brain injury from the motor vehicle accident. ICBC argued that not only the doctor was at fault, but also that the injured claimant was at fault for following the recommendations of his doctors. Accordingly, ICBC argued that they were not responsible for compensating the injured claimant fully for his injuries.
The trial judge did not agree with ICBC and found that ICBC was entirely responsible for the injured claimant’s injuries even those that were worsened or caused by the Topomax. The trial judge went further and found that the injured claimant was not at fault for properly following the advice of his own doctors. In this regard, the trial judge stated in the judgement:
 I turn next to the issue of Topomax. As is clear from the above, a number of defence witnesses were critical of its use. Indeed, Dr. Perry is convinced that Topomax is “one of the most toxic and least useful drugs marketed during my medical career”. The defence position is that many of the symptoms from which Mr. Brown suffers, including the inability to focus and concentrate, irritability and fatigue are adverse effects of Topomax and not the result of any head injury.
 Leaving aside the absence of any pleading of novus actus interveniens, in my view there are a number of problems with the defence submission regarding Topomax.
 In fact, the plaintiff was taken off Topomax. Dr. Ancill testified that the dosage was reduced commencing June 8, 2004, and the drug was discontinued on June 21. Dr. Ancill examined Mr. Brown on July 13, 2004, and discussed with him the impact of stopping the Topomax. With input from Ms. Staples, it was decided that the medication should be continued. Dr. Perry’s concerns lead to his recommendation that the drug be stopped, but he did not offer a final opinion as to whether Topomax was helpful, neutral or harmful for Mr. Brown and although Dr. Perry testified at some length, few questions were posed about the discontinuance of the drug in mid 2004. Indeed, there are portions of his report which suggest that when it was prepared, he questioned whether its usage had been discontinued.
 Logically, the way to answer a question about the effects of Topomax is to discontinue its use and monitor what occurs. But that has seemingly been done, although one is left to assume that Dr. Perry would not agree that a few weeks was long enough. Nevertheless, there is evidence that it is beneficial.
 Most importantly, even if it were to be concluded that the plaintiff’s symptoms are typical adverse effects of Topomax, it has been prescribed by his treating physician. I should add that Dr. Ancill is not alone in his view that this drug is appropriate for Mr. Brown and I make no finding that there was “medical mismanagement”.
 I have attempted to address arguments relating to Topomax, but feel it necessary to say that it is not clear to me how a finding of “medical mismanagement” would impact on the assessment of damages. The defendant’s written argument includes the following:
The complicating factor in this case is how to assess it in terms of iatrogenic mismanagement. It is conceded that the plaintiff is not responsible for the decisions of his doctor, but only to a point.
 That submission seems to amount to an assertion that Mr. Brown is somehow at fault for following the recommendations of Dr. Ancill, but he cannot be faulted. Any argument to be made about the reasonableness of the decision to use Topomax must surely be based on the conduct of Dr. Ancill in prescribing the drug, not the plaintiff’s conduct in following his advice. If the issue is causation, defence counsel seems to accept that there must be a plea of novus actus. If the failure to do what Dr. Perry recommended is relied upon, it has seemingly been remedied.
In a past blog post, we reviewed a case concerning a claimant who attended a chiropractor for her accident injuries and who suffered an additional injury as a result. In that case, the trial judge found that ICBC was fully responsible for the injury as the injured claimant properly following the advice of her doctor in attending the chiropractor.