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EXTRA-CONTRACTUAL OBLIGATIONS/TORTS 2002-2003 Prof. LARA KHOURY - page 31 / 64

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McGill Faculty of Law: Extra-Contractual Obligations/Torts: Prof. Lara Khoury, 2002-03/Summary by Derek McKee

some advantages for the plaintiff because there is no need to prove causation and the burden of proving consent falls on the defendant.

There are two kinds of compensatory damages awarded for battery:

general damages

aggravated damages: These are awarded when the dignity of the plaintiff is infringed upon: it’s compensation for the loss of dignity.

In civil law, medical intervention without consent would be governed by (a.10 and 11).

The lawsuit must be for contractual damages under (a.1458), not (a.1457) because of the rule of non-cumul. Injury must be proven.

If there is no consent at all, the issue would fall under (a.1457), but in practice this wouldn’t change things.

Failure to inform:

In common law, this would fall under negligence (injury must be proven).

In civil law, this would (a.10,11,1458) (injury must be proven).

Protection of the role of patients:

Consent, given freely, protects the freedom to make choices, even if they are foolish choices.

It includes the right to refuse treatment.

Consent cannot be obtained by threat, under duress, under the influence of drugs, etc.

Malette v. Shulman, [1990] 67 D.L.R. (4th) 321 (Ont. C.A.). (CB1p461)

Jurisdiction

Ontario

Facts

Malette was seriously injured in a car crash and was rushed unconscious to a hospital where Dr. Shulman was on duty. During the initial examination, a nurse found a card in her pocket which read, “No Blood Transfusion,” explained that blood transfusions were against her religion as a Jehovah’s Witness, and was signed by Malette. Dr. Shulman administered blood transfusions anyway and Malette made a full recovery—indeed, the blood transfusions may have saved her life. Malette sued Shulman for battery.

Issues

Can a doctor disregard a patient’s earlier, written refusal of treatment in an emergency situation?

Holding

No. Shulman was ordered to pay $20,000 in damages.

Ratio

Although emergencies are an exception to the general rule requiring a patient’s consent, a written refusal must be respected in an emergency situation. A patient’s right to refuse takes precedence over a doctor’s professional judgment.

Norberg v. Wynrib, [1992] 2 S.C.R. 226. (CB1p466)

Jurisdiction

British Columbia

Facts

Dr. Wynrib exploited Norberg’s addiction to prescription drugs in order to exact sexual favours from her.

Issues

Could Norberg obtain damages, and on what grounds?

Holding

Yes, for battery.

Ratio

La Forest J. (for the majority) held that, while consent is normally a defence against an accusation of battery, the notion of consent had to be modified to consider the power relationship between the two parties. Consent cannot be obtained by unconscionable means.

Sopinka J. held that consent was an adequate defence to battery in this case, but that Wynrib could be held liable in contract for breach of the doctor-patient relationship.

McLachlin J. argued that the issue should have been understood in terms of a fiduciary relationship.

informed consent:

Informed consent follows a participatory model of the doctor-patient relationship.

The doctor must inform the patient of:

the diagnosis

the nature and goals of the treatment

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