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28 Cards in this Set
- Front
- Back
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What is the legal meaning of the term negligence? |
- Broad meaning: branch of tort law
- Narrow meaning: Breach of the standard of care - failure to exercise the standard of care expected of a reasonable person in all circumstances of the case |
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Are physicians liable in negligence if the patient dies, operation fails or the decision ends up being wrong? |
NO |
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What happened in the case of Mustafic v Smith?
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Mr. M was voluntarily admitted to a psychiatric hospital and appeared to have mild depression and anxiety. Dr gave him a day pass to visit his family (voluntary patient), but he ended up shooting his two children, disabling one and killing the other. Dr was sued for negligence but trial said that he had exercised care and reasonable conduct and that psychiatry was an inexact science. Court of appeal dismissed mother's appeal
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What is the difference between negligence and incompetence? |
Incompetence is the inability to meet the standard. May result in being disciplined by the governing college or being fired without notice. |
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What are the six elements of Negligence actions? Which must be defended by the defendant? |
- Duty of Care - Standard of care and its breach - Causation - Remoteness of damages - Actual loss - Prejudicial conduct (defendant) |
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What is the "duty of care" element? |
- That the defendant owed the plaintiff a legal obligation to exercise reasonable care |
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In what circumstance does a duty of care arise? |
When the defendant's conduct creates a foreseeable risk of injury to the plaintiff. |
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Is there a duty of care to render aid or rescue? |
not traditionally |
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What is "standard of care"? |
Standard of care expected of a reasonable professional colleague |
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How do courts prove "standard of care" breach? |
By relying on expert witnesses to provide evidence on the appropriate standard of care |
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What is "causation"? |
proving that the negligence was the cause of the patient's injuries. |
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What is remoteness of damages ? |
Losses of plaintiff are not too remote from defendant's negligence (i.e. foreseeable) |
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What is "actual loss" ? |
Plaintiff must prove that he or she has suffered loss is recoverable under tort law. Dependents can get money now because of loss of guidance, companionship. |
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What type of law states that some losses are not recoverable? |
common law |
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What is "Prejudicial Conduct"? |
Defendant can prove that plaintiff was contributorily negligent (so the damages will be reduced) or that the plaintiff voluntarily assumed the risks (in which case the plaintiff will be denied recovery). |
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What is meant by "customary practice"? |
Well established approach technique, process or procedure that is widely accepted |
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Who has the burden of proving that customary practice exists? |
Party relying on it |
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Does breach of customary practice prove negligence? |
No |
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Does compliance with customary practice prove absolutely that they defendant is innocent? |
No |
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Can customary practice be rejected in the absence of expert evidence? |
no |
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When may a court reject customary practice? |
If it is unsafe, or risky |
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How does the era of fiscal restraint alter the expectation of standard of care? |
Courts are reluctant to lower the standard of care based on the claim of underfunding. |
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What happened in the case of Law Estate v Simice? |
Judge stated that doctors should not consider cost when making treatment decisions. Doctor had denied CT scan for patient and it worked against the patient's interest. Dr's responsibility to the patient must take precedent |
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Can government be held liability for overcrowding, "wait lists" and selective funding? |
No. Budget and resource allocation are policy matters are matters to which the government is accountable to the electorate and not the courts |
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What happened in Jinks vs Cardwell? |
Patient suffered a hypotensive episode which caused him to drown in his bathtub Court found the hospital liable for (1) only having 2 nurses on duty. (2) not taking the patient's blood pressure before administering the medication - especially since he had hypotensive episodes to the medication before, (3) not putting the patient in a room where he could be observed, and (4) for not ensuring that the assistance button had been fixed. |
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What happened in Mitchell v Ontario? |
Child died in hospital due to delays caused by overcrowding. Sued government for (1) breach of contract, (2) breach of fiduciary duty, (3) abuse of office, (4) Breached sections 7 and 12 of the Charter. Court struck out breach of contract ad breach of charter, but agreed to the rest. Government appealed to Divisional Court, which stated that relationship between government and plaintiff did not fall within any existing duty of care and the plaintiff could not prove otherwise. Plaintiff could also not prove that any member of office engaged in deliberate and unlawful conduct. therefore the government's appeal was granted and the motions were strick. |
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What are the criticisms of the Adversarial System for patients? |
- Small % of patients are compensated - Slow process - High legal costs - Technical nature of evidence - Difficulty and cost of obtaining hospital and medical records - Difficulty finding experts to criticize colleagues - CMPA's unlimited resources and its refusal to settle. - Lawyers refusal to take on claims on a contingency fee basis |
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What are the criticisms of the Adversarial System for Doctors? |
- Undermines health professionals' morale, treatment decisions, discourages practicing in certain fields and inhibits effective communication between Dr and patient - NO evidence that the system encourages Drs to exercise better care |
