As discussed in previous blog articles, the paramount issue in all medical malpractice cases is causation.  The injured claimant must prove not only that the doctor failed to meet the standard of care expected of him/her, but also that this negligence caused the injury. The standard of proof is the “balance of probabilities” in which the injured claimant must show that “but for” the doctor’s negligence, the injury would have have occurred.  This is what is known as medical malpractice causation.

Patients also have certain duties and responsibilities when seeking treatment from a medical doctor.  Examples include providing information, following medical recommendations and acting in their own best interests.  Just as a doctor is expected to meet the standard of care of a doctor with similar experience facing similar circumstances, patients are expected to meet the standard of care of a reasonable patient in similar circumstances.  If this standard of care is not met, then the patient can be found contributorily negligent if he/she contributed to their own injury caused by the doctor.  Similarly, if the injury was caused entirely by the patient’s own actions, then the claim will be dismissed due to the patient’s own negligence.

Bennett v. Landecker 2011 ONSC 6168 is an example of a situation where a patient was found contributorily negligent for failing to provide information to a doctor.  In that case, the injured claimant immediately sought medical attention from his doctor after he suffered partial loss of vision in his left eye.  He was diagnosed with retinal arterial occlusion by his doctor.  He was told that there was nothing that could be done medically for this condition.  Within days he suffered total vision loss in his left eye.  Following this, he waited 2 months to report this total vision loss to his doctor.  He was ultimately diagnosed with a retinal detachment which experts testified would not have resulted in permanent blindness if there was no delay in obtaining treatment for it.  The trial judge concluded that both the injured claimant and the doctor were negligent.  As it related to the injured claimant, he was found to be 40% contributorily negligent for failing to report the total vision loss to a doctor within a reasonable period of time.

Zhang v. Kan 2003 BCSC 5 is an example of where a patient was found contributorily negligent for failing to follow medical advice.  In that case, the patient was pregnant.  Her doctor advised her that it was too late in her pregnancy to test for genetic fetal abnormalities including Down Syndrome.  As a result of this advice, she did not undergo the test and she did not have the opportunity to discover that her child had Down Syndrome and to terminate the pregnancy.  The claim was brought in medical negligence for compensation for the consequences of her daughter’s condition.  The trial judge concluded that the patient was an experienced and sophisticated businesswoman who researched the genetic testing and was aware that she was at risk for bearing a Down’s Syndrome child.  She furthermore had already discussed the need for this procedure with her Hong Kong doctor.  When she was in Canada, the question in her mind was not whether she would undergo the procedure, but when.  She also testified that she doubted the advice of her Canadian doctor to not undergo the test because from what she understood it was not too late to undergo the procedure.  The trial judge concluded that both the patient and the doctor were negligent.  The doctor was found to be negligent for failing to arrange the genetic fetal abnormality test when it was not too late to have done so.  As it related to the patient, she was found to be 50% contributorily negligent for failing to seek a second opinion and to undergo the test.

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