Breach of fiduciary duty does not (in Canada) have a limitation period.
This is important because of the legal, monetary, and peer cooperation resources available to Doctors.
Using these vast resources and the corporate liability structures that Doctors shield themselves with, the lone patient is at a distinct disadvantage, and the Doctor can, in effect cause lasting harm to the patient through libelous assessments, withholding or tampering of files, phone and email interactons with other providers that the client has moved to after the fact, and even communications with non doctors such as family, welfare, community resource organizations, etc. The power imbalance in a doctor client relationship can be extremely paternalistic and much can be withheld from the patient or even modified to their detriment.
The fiduciary duty is a duty based on the trust that a patient must give to the doctor in order to recieve care. The Courts recognize the imbalance of power and the need for the patient to give trust and assent to the doctor in order to recieve care, a relationship that can be exploited by the doctor.
The second form of fiduciary duty, recognized long ago in english law, is that the doctor is a representative of the state to the client in a society with various governmental agencies responsible for the overall supply of medical care.
This has serious consequences for the health, life and even finances of the client.
For example,
if a doctor fails to examine, or record certain information, or fails to fill a government form correctly and completely, the patient may be precluded and denied access to extra monies or services that they are entitled to under the medical structure or authority where they reside.
A doctor that refuses to acknowledge the intersexuality or other health issues of the patient can cause the third party that is in charge of dispensing these benefits to deny them completely.
In my own example, consider:
In my recent appointment with Dr. Mark Fisher at a Carepoint clinic within walking distance of my home I brought a form which is required for me by the social services of my province to be filled out by a doctor.
The form, called Persons with Persistent Multiple Barriers, is meant as a communication to the ministry by a doctor as to the multiple conditions a client of their governmental services has which may impede employment or normal activities in support of life and the seeking of employment.
The ministry requires this to be fully completed with the multiple conditions of the client in order to maintain on file the correct disposition of these conditions in the client. The client has no choice and must have a doctor fill out the form correctly in order to recieve welfare services, and as well, the form, properly filled out, gives the client access to extended health benefits in order that further treatment may progress. As well, the client recieves slightly more benefits ($60 more per mo) and the social workers can see, in print the conditions affecting the client and impeding their ability to get and maintain employment.
I went to Dr. Fisher with the following conditions that I do indeed have and I very carefully and neatly wrote each of them on a set of 5 sheets of paper, with clear explanations of how that condition occurred or may have occurred, how long I had had those conditions, the effect of those conditions on my employabiltym and my personal rough estimation of the approximate length of time I believed they could be resolved in within the current healthcare clinic structure.
I will delineate them briefly here:
1. Near sightedness: I require glasses to read a street sign from across the street.
2. A damaged toe on left foot and muscle damage to the foot itself: from a longtime Plantar's wart that had been incorrectly treated by a Dr. Fong. The treatment was not accompanied by proper pain medication and as a result the foot swelled within a boot and was further damaged causing an intermittent type of siezing, meaning I sometimes have to sit down wherever I am and take off my shoe and sometimes even my sock because of intense pain.
3. Emphysema: diagnosed at least 10 years ago, fairly severe
4. Torn Anterior Crucial Knee Ligament (ACL), left knee: This chronic condition (15+ yr) has never been accurately treated although it has been assessed. Leaves me unable to navigate slippery or wet surfaces without extreme care, limits mobility, unable to run, or dance(which I used to enjoy greatly).
Slopes and stairs are difficult to navigate, certain pants cause pain, bending at the knee is painful, unable to push or pull large heavy low boxes.
5. Sever Arthritis, knees and elbows: Diagnosed approx 5 yrs ago, no treatment whatsoever. I cannot carry a 4 litre milk jug in each hand for more than a block without extreme pain. Knees, elbows hurt in cold weather.
6. Congenital Intersexuality: Never properly diagnosed or treated with any informed consent. Genital normalization surgery performed at 17 yrs of age without Informed Consent. Multiple practitioners have denied all Duty to Inform and Duty to Refer to a specialist. The laughter and mocking and nondiagnosis have made me fear most medical practitioners to such an extrem I am unable to submit to general anaesthic.
7. Strokes: I was given ether by 3 doctors at St. Paul's emergency approx 3 yrs ago, have suffered at least 40 large strokes causing temporary loss of sight and motor control.
8. Mild Anorexia/Bulimia: probably caused by 3.5 years living outside and eating what I could from dumpsters. Continuous starvation then overeating.
9. Two Abdominal hernias: Extreme anguinal hernia on right side of groin ballons to nearly 2 inches long and 1.5 inch thick on a daily basis. Subsides then ballons again, stressed by carrying of weight in arms or on back. Requires manual compression while walking. Smaller hernia on left side of lower abdomen. Untreated for over 10 years.
10. Post Traumatic Strees Disorder: I was a victim of a home invasion and assault by a group (gang), further complicated by extended poor medicare leaving me permanently anxious. I wake at about 4 a.m. each day and chain smoke until anxiety subsides.
All of these conditions were clearly expressed in the document given to Dr. Fisher (and previous doctors). It was scanned into the healthcare records system and I have a copy of it. It was handwritten in cleary legible writing.
On my PPMB form, which I am REQUIRED and constantly harassed by the ministry to have filled out, Dr, Fisher simply put "client has sore back and leg, approxx 3 months recovery time"
That's ALL THAT WAS PLACED ON THE FORM.
There are 10 conditions I have listed here
none of them are on the form
I went in with my form, and a few days earlier I had pulled ny sciatic slightly
so that's all he put on the form
I gave him my handwritten notes 4 pages long
as he stood there paternalistically filling out the form I went through each of the conditions I have wrote about VERBALLY, I made sure his staff inputted my notes into the system, and I walked away with the incomplete PPMB form, which I did NOT give to the ministry, and ascript for some muscle relaxants and an anti inflammatory. I didn't even get any painkillers, and I really needed something because the relaxants and anti inflammatory did not nake the pain go away at all, so I suffered Battery for the next 2 months as it healed.
This, as you can clearly see, is a breach of the fiduciary duty of the doctor to correctly fill out a government form that has a purpose: To communicate my conditions to the ministry for their files, to assist me in obtaining the extended healthcare which would enable the eyeglasses, the arthritis medicine,the stroke medicine, the painkillers, etc.
The fiduciary duty is extremely important in assessing damages in a case of the breach of Duty of Care or other Negligence and Intentional Torts.
I suggest the following books if you perhaps have similiar issues with medical negligence or malpractice:
The Law of Torts Paperback – May 9 2011
Legal Liability of Doctors and Hospitals in Canada, 4th Edition
ISBN/ISSN/Product Number: 978-0-7798-1373-5
