The patient’s particular situation and the degree to which the risks of surgery or no surgery are balanced would reduce the force, on an objective appraisal, of the surgeon’s recommendation. Admittedly, if the risk of foregoing the surgery would be considerably graver to a patient than the risks attendant upon it, the objective standard would favour exoneration of the surgeon who has not made the required disclosure. Since liability rests only in negligence, in a failure to disclose material risks, the issue of causation would be in the patient’s hands on a subjective test, and would, if his evidence was accepted, result inevitably In liability unless, of course, there was a finding that there was no breach of the duty of disclosure. In my view, therefore, the objective standard is the preferable one on the issue of causation.At Wise Health Law,we focus on health and administrative law. With more than 30 years of combined health law and litigation experience, we help regulated health professionals and national and provincial regulated health professional associations to find solutions to their legal and regulatory issues. With offices in both Toronto and Oakville, Ontario we are easily accessible. Contact us online, or at 416-915-4234for a consultation.
Earlier this year, Wise Health Law succeeded on a motion for summary judgment in a dental malpractice case on the basis that the limitation period had expired before the Statement of Claim was issued. The (unreported) decision was delivered orally on the day of the motion.
In part, the plaintiff argued that she did not discover her claim until the Royal College of Dental Surgeons of Ontario (the “RCDSO” or “College”) rendered its decision, as she did not know if the defendant was negligent when she complained to the RCDSO, but merely had a “suspicion”.
In the midst of COVID-19, the proceedings of many health colleges, and consequently of the health professionals they regulate, have been in limbo while everyone finds a way forward.
On March 25, 2020, the Ontario government enacted the Hearings in Tribunal Proceedings (Temporary Measures) Act, 2020 (the “Act”) to help the process along.
The Act empowers statutory tribunals with more discretion over how proceedings before them are held.
Effective 11:59 p.m. on March 24, 2020, the Ontario government ordered the closure of “non-essential” workplaces. The list of “essential” workplaces included “health care professionals providing emergency care including dentists, optometrists and physiotherapists”.
The College of Chiropractors of Ontario (“CCO”) interprets this list as including chiropractors, and we agree.
So the question becomes – what is “emergency care”?