and I will write in this article about the current state and case law regarding informed consent.
The conservatives don't care about the fact that it is law.
This will take a couple of weeks. (WIP)
I'm sort of using it as a notepad, then I'm planning to rearrange it when I have all the quotes in one place.
I will attempt to link to every piece of case law listed or mentioned or even append certain sections to this document.
I believe this is a good use for a blog, you get to see my "thought processes" as I build my Statements of Claim and my Pleadings and try to find the $500 or so per case to begin things...
this is an interesting read as well:
THE LAW IN NAZI GERMANY Ideology, Opportunism, and the Perversion of Justice
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Informed Consent is part of Negligence law:Thanks are due to Patricia Peppin and Phillip Osbourne for their introductions to Informed Consent and Tort Law.
...as many as 7.5% ...treated in Canadian hospitals experience an "adverse result" - an unintended injury or complication that is caused by health care management rather than by disease that leads to death, disability, or prolonged hospital stays...40% were highly preventable...9,250-23,750 deaths could have been prevented in 2000. - G.Ross Baker "Canadian Preventable Deaths Study"
Breach of fiduciary duty may found an equitable claim against a physician ...this may arise not only when the physician acts unconsciously or takes advantage of a patient,such as succumbing to a conflict of interest, but also when disregarding the patients interests - Norberg v. Wynrib,[1992] S.C.J. No. 60, 92 D.L.R. (4th) 449 S.C.C.
Malpractice liability may also arise for false arrest and imprisonment, such as through negligent or otherwise improper employment of powers of involutary detention under mental health legislation - Mullins v. Levy, [2005] B.C.J. No. 1878, 258 D.L.R (4th) 460 (B.C.S.C)
Elements of Negligence
1. The defendent owed the plaintiff a legal Duty of Care
2. The defendent breached that duty of care
3. The plaintiff suffered legally recognized damage
4. The damage was caused by the defendent's breach of that duty of care
If physicians discriminate against...(prospective patients)...on grounds of race, age, or other prohibited grounds they may violate provincial human rights laws... - Korn v. Potter, [1996] B.C.J. No. 692, 134 D.L.R. (4th) 437 (B.C.S.C)
physicians may have a duty of care not to treat their patients but promptly to refer them to colleagues whose skills are more suited to the patients needs - Jaglowski v. Kreml, [2002] M.J. No. 334, 167 Man R. (2nd) 71 (Man. Q.B)
The duty to refer also applies regarding procedures in which physicians conscientiously object to participate. Failure of adequately informed consent can be actionable in negligence,, and may be found if a practitioner refuses or fails to disclose a legitimate choice of patient care because of the practitioner's conscientious objection to participation in that choice - Zimmer v. Ringrose, [1981] A.J. No. 596, 124 D.L.R. 93rd) 215 (Alta C.A.) - CMA, Code of Ethics (Ottowa: CMA, 2004), ss 12, 19 - Reibl v. Hughes [1980] S.C.J. No.105, 114 D.L.R. (3rd) 1 (S.S.C.)
As private corporations, hospitals...bear both direct corporate and often vicarious liability for the medical and other care they accomodate and facilitate - Picard and G. Robertson, "Legal liability of doctors and hospitals in Canada", 4th ed.
Limitations acts require plaintiffs to initiate complaints within a given time from when they actually knew that they have a cause of action. Limitation periods may be suspended during a patients disability. Action may therefore be initiated some time after the procedure complained of was performed - Patterson v. Anderson, [2004] O.J. No. 3619, 72 O.R. (3rd) 330 (Ont. S.C.J) - E. (D.) (Guardian ad litem of) v. British Columbia, [2005] B.C.J. No. 492, 252 D.L.R. (4th) 689 (B.C.C.A) - ter Neuzen v. Korn, [1995] S.C.J. No. 79, 127 D.L.R. (4th) 577 at 589 (S.C.C.)
The doctrine of informed consent has developed in the Law as the primary means of protecting a patient's right to control his or her medical treatment...informed consent is plainly intended to ensure the freedom of the individual to make choices concerning their medical care. For this freedom to be meaningful, people must have the right to make choices that accord with their own values, regardless of how unwise or foolish those choices may appear to others. - Malette v. Schulman [1990] O.J. No. 450, 72 O.R. (2nd)417 at 423-24 (Ont. C.A.)
Participation in decision making provides the opportunity to excercise choice according to ones own values and beliefs rather than recieving treatment through paternalistic imposition of another's treatment decisions. - P. Peppin
The doctrine of informed consent was developed as a judicial attempt to redress the inequality of information that characterizes a doctor patient relationship. - [1995] S.C.J. No. 104, [1995] 4 S.C.R. 634(S.C.C.)
(the tort of)Battery continues to be the appropriate action in situations where there is no consent at all or where the act exceeds the consent. - John G. Fleming on Reible v. Hughes, "The Law of Torts" - Reible v. Hughes, [1980] S.C.J. No. 105, [1980] 2 S.C.R. 80(S.C.C.)
Wrongful Sterilization see Leilani Muir, Muir v. Alberta, [1996] A.J. No. 37(Alta, Q.B)
...it is the patient's decision and the doctor must equip the patient with the necessary information to make an informed choice...where more than one medically reasonable treatment existsand the risk/benefit analysis engaged by the alternatives involves different considerations, a reasonable person would want to know about(those)alternatives and would want the assistance of the doctor's risk/benefit analysis of the various possible treatments before deciding whether to proceed with a specific treatment. - Van Dyke v. Grey Bruce Reg. Centre [2005] O.J. No. 2219(Ont. C.A.) leave to appeal refused [2005] S.C.C.A No. 335(S.C.C)
"Physicians rights to refuse to participate in medical procedures that offend their conscience may be incompatible with patients rights to recieve lawful medically indicated treatment" - Rebeccca Cook and Gerard M. Dickens "The Growing Abuse of Conscientious Objection"
The concept of therapeutic privilege was recognized by the Supreme Court in Reibl. It permits a physician to withhold or generalize information relating to the risks of treatment where its disclosure may cause psychological harm to the patient.The privelege has recieved a narrow interpretation and there is no Canadian case in which it has been successfully applied.(as a legal defense to negligence) - P.H. Osbourne, "The Law of Torts, Essentials of Canadian Law"
The duty to inform patients has been described with reference solely to physicians...the duty, however, rests on all health care professionals within their area of expertise or practice.- P.H. Osbourne, "The Law of Torts, Essentials of Canadian Law"
Deceit is (a tort action) established whenever a person has made a fraudulent statement that intentionally causes another person to rely on it to their detriment. - Pasly v. Freeman (1789), 3 term. Rep. 51, 100 E.R. 450(k.b.)
Three elements must be established in order to establish tortious assault: first, the plaintiff apprehended immediate physical contact, second, the plaintiff had reasonable apprehension (the requisite state of mind) and third, the defendant's act of interference was intentional (the defendant intended the resulting apprehension). But intent for purposes of civil assault can be either general or specific. Specific intent means that when the defendant acted, he or she intended to cause apprehension of a harmful or unwanted contact. General intent means that the defendant knew with substantial certainty that the action would put someone in apprehension of a harmful or unwanted contact. While the law varies by jurisdiction, contact is often defined as harmful if it objectively intends to injure, disfigure, impair, or cause pain.The act is deemed offensive if it would offend a reasonable person’s sense of personal dignity. While imminence is judged objectively and varies widely on the facts, it generally suggests there is little to no opportunity for intervening acts.Lastly, the state of apprehension should be differentiated from the general state of fear, as apprehension requires only that the person be aware of the imminence of the harmful or offensive act. - wikipedia
Abuse of process is a cause of action in tort arising from one party making a malicious and deliberate misuse or perversion of regularly issued court process (civil or criminal) not justified by the underlying legal action. It is a common law intentional tort. It is to be distinguished from malicious prosecution, another type of tort that involves misuse of the public right of access to the courts. The elements of a valid cause of action for abuse of process in most common law jurisdictions are as follows: (1) the existence of an ulterior purpose or motive underlying the use of process, and (2) some act in the use of the legal process not proper in the regular prosecution of the proceedings.[1] Abuse of process can be distinguished from malicious prosecution, in that abuse of process typically does not require proof of malice, lack of probable cause in procuring issuance of the process, or a termination favorable to the plaintiff, all of which are essential to a claim of malicious prosecution.[2] "Process," as used in this context, includes not only the "service of process," i.e. an official summons or other notice issued from a court, but means any method used to acquire jurisdiction over a person or specific property that is issued under the official seal of a court.[3] Typically, the person who abuses process is interested only in accomplishing some improper purpose that is collateral to the proper object of the process and that offends justice, such as an unjustified arrest or an unfounded criminal prosecution. Subpoenas to testify, attachments of property, executions on property, garnishments, and other provisional remedies are among the types of "process" considered to be capable of abuse. - wikipedia
A tort consists of a wrongful acts or injury that leads to physical, emotional, or financial damage to a person in which another person could be held legally responsible.[1] The two main subcategories of tort law are intentional torts and unintentional torts...The main difference between intentional torts and unintentional torts is intent. An intentional tort is when a person intends to achieve a particular outcome that results in injury to people or damage to property, whereas an unintentional tort such as negligence, occurs when there has been a lack of duty of care or foreseeability that results in injury to people or damage to property. - wikipedia
Intentional infliction of emotional distress (IIED) is a tort claim...intentional conduct that results in extreme emotional distress...created in tort law to address a problem that would arise when applying the common law form of assault. The common law tort of assault did not allow for liability when a threat of battery was not imminent. A common case would be a future threat of harm that would not constitute common law assault, but would nevertheless cause emotional harm to the recipient. IIED was created to guard against this kind of emotional abuse, thereby allowing a victim of emotional distress to receive compensation in situations where he or she would otherwise be barred from compensation under the common law form..."intentional infliction of mental shock"...the willful nature of the act as a direct cause of the harm. Elements:Defendant acted intentionally or recklessly; and Defendant’s conduct was extreme and outrageous; and Defendant’s act is the cause of the distress; and Plaintiff suffers severe emotional distress as a result of defendant’s conduct...The conduct must be heinous and beyond the standards of civilized decency or utterly intolerable in a civilized society. Whether the conduct is illegal does not determine whether it meets this standard...the standard: the conduct must be such that it would cause a reasonable person to exclaim "Outrageous!" in response...Some general factors that will persuade that the conduct was extreme and outrageous (1) there was a pattern of conduct, not just an isolated incident; (2) the plaintiff was vulnerable and the defendant knew it; (3) the defendant was in a position of power; (4) racial epithets were used; and (5) the defendant owed the plaintiff a fiduciary duty. - wikipedia, [often pleaded as Nervous Shock(PTSD, etc.)in Canada]
In tort law, a duty of care is a legal obligation imposed on an individual requiring that they adhere to a standard of reasonable care while performing any acts that could foreseeably harm others. It is the first element that must be established to proceed with an action in negligence. The claimant must be able to show a duty of care imposed by law which the defendant has breached. In turn, breaching a duty may subject an individual to liability. The duty of care may be imposed by operation of law between individuals with no current direct relationship (familial or contractual or otherwise), but eventually become related in some manner, as defined by common law (meaning case law). Duty of care may be considered a formalization of the social contract, the implicit responsibilities held by individuals towards others within society. It is not a requirement that a duty of care be defined by law, though it will often develop through the jurisprudence of common law. - wikipedia
blacks:
statement of claim. 1. COMPLAINT (1). 2. English law.
statement. (18c) 1. Evidence. A verbal assertion or nonverbal conduct intended as an assertion. 2. A formal and exact presentation of facts.
statement of cause of action. See STATEMENT (2). A plaintiff's initial pleading in a civil case
PLEADING - 1. A formal document in which a party to a legal proceeding (esp. a civil lawsuit) sets forth or responds to allegations, claims, denials, or defenses. • In federal civil procedure, the main pleadings are the plaintiff's complaint and the defendant's answer.
STATEMENT OF FACT - A form of conduct that asserts or implies the existence or nonexistence of a fact. The term includes not just a particular statement that a particular fact exists or has existed, but also an assertion that, although perhaps expressed as an opinion, implies the existence of some fact or facts that have led the assertor to hold the opinion in question. See affirmative TESTIMONY.
STATEMENT OF FACTS - A party's written presentation of the facts leading up to or surrounding a legal dispute...
informed consent. - 1. A person's agreement to allow something to happen, made with full knowledge of the risks involved and the alternatives. • For the legal profession, informed consent is defined in Model Rule of Professional Conduct 1.0(e).2. A patient's knowing choice about a medical treatment or procedure, made after a physician or other healthcare provider discloses whatever information a reasonably prudent provider in the medical community would give to a patient regarding the risks involved in the proposed treatment or procedure. — Also termed knowing consent.
voluntary consent - Consent that is given freely and that has not been coerced.
IN MALA FIDE In bad faith. - “A possessor in mala fide is one who holds possession of a subject, in the knowledge that it is not his own, on a title which he knows, or has reasonable ground for believing to be a bad one.”
- blacks law dic.
Fear and anxiety are forms of assault damage which may also create a situation of battery as a cause of action.
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Topic:
LIABILITY (LAW); CIVIL PROCEDURE; MEDICAL MALPRACTICE;
Location:
MALPRACTICE;
| January 2, 2004 |
2004-R-0002
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DAMAGES — MEDICAL MALPRACTICE
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By: George Coppolo, Chief Attorney
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SUMMARY
In a medical malpractice lawsuit (just as in any personal injury lawsuit), there are two types of damages: economic and noneconomic. Economic damages are monies awarded as compensation for monetary losses and expenses, which the plaintiff has incurred, or is reasonably likely to incur in the future, as a result of the defendant's negligence. Noneconomic damages are monies awarded as compensation for non-monetary losses and injuries, which the plaintiff has suffered, or is reasonably likely to suffer in the future, as a result of the defendant's negligence.
There appears to be no statute or court case that contains a complete list of all possible economic or noneconomic damages. And while there are official and unofficial sample or recommended jury instructions for medical malpractice as well as other personal injury cases, there is no definitive or uniform set of jury instructions that judges must give to a jury. We spoke with Judge Lagenback who recently presided over a medical malpractice case against Hartford Hospital that resulted in a large jury verdict. He told us that the judge has the duty to give the jury charge concerning damages that he believes is appropriate in light of the evidence offered and the claims for damages the plaintiff has made. A judge can rely on sample jury instructions and on proposed instructions each side presents, but ultimately it is the judge's decision based on his understanding of the law of damages as established by statutory and case law. If a judge gives an incorrect instruction, any party may appeal, and the verdict could be overturned.
The statutes require that the jury or, if there is no jury, the court to specify: (1) the amount of economic damages; (2) the amount of noneconomic damages; and (3) any findings of fact necessary for the court to specify recoverable economic damages and recoverable noneconomic damages (CGS § 52-572h). This law defines "economic damages" as compensation determined by the trier of fact for pecuniary losses including, but not limited to, the cost of reasonable and necessary medical care, rehabilitative services, custodial care and loss of earnings or earning capacity excluding any noneconomic damages. It defines "noneconomic damages" as compensation determined by the trier of fact for all nonpecuniary losses including, but not limited to, physical pain and suffering and mental and emotional suffering.
Because the statutes do not contain an exhaustive list of economic or noneconomic damages, courts must look to the common law to determine what is recoverable as an economic or nonecomic damages.
Based on our examination of case law and recommended jury instructions, the following types of economic and noneconomic damages are recoverable if proven by the injured party: Economic damages can include lost wages and other income including benefits such as pension contributions, medical care and expenses, custodial care, lost earnings, lost earning capacity, and funeral expenses if the injury resulted in death. Noneconomic damages can include physical pain and suffering, mental distress and suffering, permanent impairment or loss of function, disfigurement, loss of the ability to enjoy life's pleasures, loss of consortium, and death.
BACKGROUND
The background information is taken almost verbatim from the Judicial Department's web site under the heading of Civil Jury Instructions. They were compiled to assist judges. Their use is discretionary. Whether any jury instructions are sufficient and accurate is a question of law, which either party can appeal.
An injured plaintiff is entitled to recover all the damages caused by the negligent act. To be entitled to damages a plaintiff must establish a causal relation between the injury and the physical condition, which he claims resulted from it (Bates v. Carroll, 99 Conn. 677, 679). This causal connection must rest upon more than surmise or conjecture (Witowski v. Goldberg, 115 Conn. 693, 696). The trier of fact is not concerned with possibilities but with reasonable probabilities (Richardson v. Pratt & Whitney Mfg. Co., 129 Conn. 669,672).
Under the law of damages, insofar as money can do it, the plaintiff is entitled to receive fair, just and reasonable compensation for all injuries and losses, past and future, which are proximately caused by the defendant's proven negligence. Negligence is a proximate cause of a loss or injury if it is a substantial factor in bringing that loss or injury about.
Under this rule, the purpose of an award of damages is not to punish or penalize the defendant for his negligence, but to compensate the plaintiff for his resulting injuries and losses. The jury is instructed to attempt to put the plaintiff in the same position, as far as money can do it, that he would have been in had the defendant not been negligent.
The law imposes certain rules to govern the award of damages in any case where liability is proven. Just as the plaintiff has the burden of proving liability by a fair preponderance of the evidence, he has the burden of proving his entitlement to recover damages by a fair preponderance of the evidence. Thus, the plaintiff must prove (1) the nature and extent of each particular loss or injury for which he seeks to recover damages and (2) that the loss or injury in question was proximately caused by the defendant's negligence. The jury may not guess or speculate as to the nature or extent of the plaintiff's losses or injuries. Its decision must be based on reasonable probabilities in light of the evidence presented at trial. Injuries and losses for which the plaintiff should be compensated include those he suffered up to and including the time the jury deliberates, and those he is reasonably likely to suffer in the future as a proximate result of the defendant's negligence.
Once the plaintiff has proved the nature and extent of his compensable injuries and losses, it becomes the jury's job (or the court's if there is no jury) to determine what is fair, just and reasonable compensation for those injuries and losses. There is often no mathematical formula in making this determination. Instead, the jury must use human experience and apply sound common sense in determining the amount of the verdict.
In a personal injury action, there are two general types of damages: economic and noneconomic damages. Economic damages are monies awarded as compensation for monetary losses and expenses, which the plaintiff has incurred, or is reasonably likely to incur in the future, as a result of the defendant's negligence. They are awarded for such things as the cost of reasonable and necessary medical care and lost earnings. Noneconomic damages are monies awarded as compensation for non-monetary losses and injuries, which the plaintiff has suffered, or is reasonably likely to suffer in the future, as a result of the defendant's negligence. They are awarded for such things as physical pain and suffering, mental and emotional pain and suffering, and loss of diminution of the ability to enjoy life's pleasures.
Following are recoverable economic and noneconomic damages in a medical malpractice case.
ECONOMIC DAMAGES
Medical Care and Expenses
The plaintiff is entitled to recover the reasonable value of medical care and expenses incurred for the treatment of injuries sustained as a result of the defendant's negligence. The plaintiff must prove that the expenses he claims were reasonably necessary and proximately caused by the defendant's negligence.
Loss of Earnings or Earning Capacity
The plaintiff is also entitled to recover any lost earnings that he proves to have been proximately caused by the defendant's negligence. With respect to lost earnings up to the present time, the plaintiff must prove that the defendant's negligence has prevented him from receiving the earnings for which he seeks compensation. He must do so by establishing a reasonable probability that his injury brought about a loss of earnings. The evidence must establish a basis for a reasonable estimate of that loss.
Loss of Earning Capacity
The plaintiff is also entitled to damages for the loss of future earnings based upon the evidence as to what he probably could have earned but for the harm caused by the defendant's negligence and as to what the plaintiff can now earn through the earning period of his life.
NONECONOMIC DAMAGES
A plaintiff who is injured by the negligence of another is entitled to be compensated for all physical pain and suffering, mental and emotional suffering, loss of the ability to enjoy life's pleasures, and permanent impairment or loss of function that he proves by a fair preponderance of the evidence to have been proximately caused by the defendant's negligence. As far as money can compensate the plaintiff for such injuries and their consequences, the jury must award a fair, just, and reasonable sum. The jurors must use their own good judgment in awarding damages in this category. They must consider the nature and duration of any pain and suffering that they find.
Mental Distress and Suffering
A plaintiff who is injured by the negligence of another is entitled to be compensated for mental suffering caused by the defendant's negligence for the results that proximately flow from it in the same manner as he is for physical suffering. Included within this class of damages is the fear that death will result from an injury, if the jury concludes the plaintiff honestly had this fear.
Loss of the Ability to Enjoy Life's Pleasures
The jury must consider, as a separate category for awarding damages in this case, the length of time the plaintiff was, or will probably be, disabled from engaging in activities which he enjoys.
Permanent Impairment or Loss of Function
If the jury finds that it is reasonably probable that the plaintiff has suffered permanent physical harm, loss of function or disfigurement, he is entitled to be compensated for that category of injury. The award should be in accordance with the nature and extent of such physical impairment, loss of function, or disfigurement and the length of time he is reasonably expected to endure its negative consequences. Typically, the court will instruct the jury as to the use of any evidence of life expectancy that has been introduced. But while mortality tables are generally held admissible to assist the jury to estimate the expectancy of a plaintiff's life and thus determining the period of the probable duration of a permanent incapacity, they are not necessarily conclusive nor are they the exclusive evidence admissible. A jury may also consider other evidence such as age, health, habits, and physical condition.
Disfigurement
The jury may also assess fair compensation for any disfigurement such as scaring. It must take into consideration any reasonable probability that the disfigurement will be less noticeable as time goes on and also taking into consideration any mortification and anguish the plaintiff has suffered and will in the future suffer.
Pre-existing Condition
The plaintiff is entitled to full compensation for all injuries and losses proximately caused by the defendant's negligence even though those injuries and losses are more serious than they otherwise would have been because of a pre-existing condition. The jury may not compensate the plaintiff for the pre-existing injury itself. But, the aggravation of such an injury, proximately caused by the defendant's negligence, is a proper item of noneconomic damages.
Damages for Death
Damages for death are allowed as compensation for the destruction of the decedent's capacity to carry on life's activities, including his capacity to earn money. It is the sum that would have compensated the deceased so far as money could do for the destruction of his capacity to carry on life's activities, as he would have done had he not been killed, including the destruction of his earning capacity.
Loss of Consortium
The law allows damages for the loss of consortium. These are damages due a spouse because of injuries to the other spouse (Hopson v. St. Mary's Hospital, 176 Conn. 485). “Consortium” encompasses the services of the spouse and the variety of intangible relations that exist between spouses living together in marriage. These intangibles are generally described in terms of affection, society, companionship, and sexual relations. They have also been defined as the constellation of companionship, dependence, reliance, affection, sharing and aid, that are legally recognizable, protected rights arising out of he civil contract of marriage.
GC:ro
