Health Law - SCC

The respondent patient sued the appellant doctor for medical malpractice after he allegedly misdiagnosed her breast cancer.

The action was commenced outside the standard two-year limitation period.

The Supreme Court of Canada considered whether the running of time was postponed under s. 6(4)(b) of the Limitation Act.

The Court held that the provision requires a subjective/objective approach, postponing the limitation period until a reasonable person would conclude that the plaintiff could reasonably bring an action in light of their own serious, significant, and compelling circumstances.

The appeal was dismissed, allowing the action to proceed.

The appellants, deaf patients, challenged the failure of British Columbia’s publicly funded health care scheme to provide sign language interpreters where necessary for effective communication in medical settings.

The Court held that although the impugned statutes were not unconstitutional on their face, the Charter applied to hospitals and the Medical Services Commission when they implemented the statutory medicare program.

The failure to provide interpretation where necessary denied deaf persons the equal benefit of the law under s. 15(1) by creating adverse effects discrimination in access to insured medical services.

The infringement was not justified under s. 1 because the government failed to show that a total denial of medical interpretation minimally impaired equality rights.

A declaration was granted, suspended for six months, directing the province to administer the legislation consistently with s. 15(1).

A class action was brought on behalf of hospital patients after illegal strikes by unionized employees disrupted care and services at a psychiatric institution.

The Court held that Quebec class action procedure does not alter the ordinary civil rules of evidence, and that prejudice may be proved by sufficiently serious, precise and concordant presumptions of fact.

It further held that moral prejudice in Quebec civil law is compensable on an objective basis and is not conditional on the victim’s subjective ability to enjoy monetary solace, although functional considerations remain relevant to quantification.

The Court concluded that the temporary discomfort suffered by the patients did not amount to an interference with inviolability under s. 1 of the Charter of Human Rights and Freedoms, but did interfere with dignity under s. 4.

Exemplary damages were properly awarded under s. 49 because the interference was unlawful and intentional.

The appellant contracted HIV from an artificial insemination procedure performed by the respondent physician in 1985.

The appellant sued for negligence and breach of implied warranty.

The Supreme Court of Canada held that the physician could not be found negligent for failing to know of the risk of HIV transmission through AI at that time, as it was not standard medical knowledge.

The Court also held that a jury cannot find a standard medical practice negligent unless it is fraught with obvious risks.

Furthermore, the Court ruled that the Sale of Goods Act and common law implied warranties do not apply to contracts primarily for medical services involving biological materials like semen.

Finally, the Court affirmed that the rough upper limit on non-pecuniary damages applies and that trial judges should instruct juries on this limit when appropriate.

Constitutional appeals challenging federal tobacco advertising and labelling restrictions.

The Court held that Parliament had authority under the criminal law power to legislate in relation to tobacco advertising, promotion, and warning requirements aimed at protecting public health.

A majority further held that the impugned advertising ban, trademark restrictions, and unattributed package warning provisions infringed freedom of expression under s. 2(b) of the Charter and were not justified under s. 1 because the government failed to demonstrate minimal impairment.

Sections 4, 5, 6, 8, and 9 of the Act were declared of no force or effect.

A terminally ill appellant with ALS challenged the constitutionality of Criminal Code s. 241(b), which prohibited aiding or abetting suicide, arguing infringements of ss. 7, 12 and 15(1) of the Charter.

The majority held that while the prohibition engaged personal autonomy and security of the person, the blanket ban accorded with the principles of fundamental justice because it reflected the sanctity of life and the state's interest in protecting vulnerable persons from abuse.

The majority further held that the provision did not constitute cruel and unusual treatment, and assumed without deciding that any equality infringement was justified under s. 1.

The appeal was dismissed and s. 241(b) was upheld as constitutional.

The respondent opened a free-standing abortion clinic in Nova Scotia.

In response, the provincial government enacted the Medical Services Act and regulations, which prohibited the performance of abortions outside of approved hospitals and denied medical insurance coverage for such services.

The respondent was charged with violating the Act and acquitted at trial on the basis that the legislation was ultra vires the province.

The Court of Appeal upheld the acquittal.

The Supreme Court of Canada dismissed the Crown's appeal, holding that the legislation was in pith and substance criminal law, which falls under the exclusive legislative jurisdiction of the federal Parliament, as its primary purpose was to prohibit abortions outside hospitals as socially undesirable conduct.

The patient underwent a cerebral angiogram to locate a suspected aneurism.

During the procedure, she experienced discomfort, hyperventilated, and asked the doctors to stop.

After calming down, she was asked if she wished the test completed and she consented.

Following the final injection, she suffered a rare reaction rendering her a quadriplegic.

The Supreme Court of Canada held that while a patient may withdraw consent during a procedure, the patient here had validly consented to its continuation.

The doctors were not required to repeat the full disclosure of risks because there had been no material change in circumstances.

The appellant, a young woman addicted to prescription painkillers, sought drugs from the respondent, an elderly physician.

The respondent discovered her addiction and demanded sexual favours in exchange for prescribing the drugs.

The appellant acquiesced out of desperation.

She later sued for battery, negligence, and breach of fiduciary duty.

The Supreme Court of Canada allowed the appeal, holding that the power imbalance and exploitative nature of the relationship vitiated the appellant's consent to the sexual contact.

The Court awarded aggravated and punitive damages, finding the doctor's conduct reprehensible and a breach of his professional and fiduciary duties.

The appellant physician refused to provide her patient, the respondent, with copies of medical reports and records received from other physicians, claiming they were the property of those physicians.

The patient applied for an order directing the physician to provide a copy of her entire medical file.

The Supreme Court of Canada held that while the physical medical records belong to the physician, the physician-patient relationship is fiduciary in nature.

This gives the patient a trust-like beneficial interest in the information contained in the records.

Therefore, in the absence of legislation, a patient is entitled to examine and copy all information in their medical records that the physician considered in administering advice or treatment, subject to the court's superintending jurisdiction if access would cause harm.

The respondents brought an action for damages against a doctor and the appellant hospital alleging medical malpractice.

The Superior Court found no fault on the part of the doctor and dismissed the action.

The Court of Appeal reversed this judgment and found both the doctor and the hospital liable.

In a companion appeal, the Supreme Court of Canada allowed the doctor's appeal and found no fault.

Consequently, the Court allowed the hospital's appeal, holding that the hospital could only be liable if the doctor was found to be at fault.

The respondent's late sister consulted the appellant doctor about a breast lump.

The doctor performed a biopsy, found cancer, but failed to inform the patient or arrange follow-up care.

Years later, the patient died of generalized cancer.

The Supreme Court of Canada rejected the application of the 'loss of chance' theory to medical malpractice in Quebec civil law, holding that traditional rules of causation apply.

However, the Court found the doctor liable for the patient's psychological suffering and diminished quality of life caused by the failure to inform and follow up, awarding $17,500 in damages.

The appellants appealed judgments declaring unconstitutional a hospital regulation requiring medical staff retirement at age 65 unless an exception was granted.

The principal issue was whether the hospital, in adopting and administering the regulation, was subject to the Charter under s. 32.

The majority held the hospital was not part of government and its internal management regulation therefore fell outside the Charter's ambit.

Assuming the Charter applied, the majority further held the regulation and its application were discriminatory under s. 15(1) but justified under s. 1 because they were rationally connected to maintaining excellence in a major acute care teaching hospital and minimally impairing in a resource-allocation context.

The appellant ophthalmologist performed cataract surgery on the respondent.

During the administration of local anaesthetic, a retrobulbar hemorrhage occurred.

The appellant noticed a small bleed but proceeded with the operation.

The respondent subsequently lost sight in her right eye due to optic nerve atrophy.

The trial judge found the appellant negligent for continuing the operation and, relying on McGhee, shifted the burden of proof of causation to the appellant.

The Supreme Court of Canada dismissed the appeal, holding that while the legal burden of proof remains with the plaintiff, causation need not be determined with scientific precision.

A robust and pragmatic approach allows the trier of fact to draw an inference of causation where the defendant's negligence makes it impossible to prove causation positively, absent evidence to the contrary.

The applicant sought leave to appeal to the Supreme Court of Canada from a judgment involving a hospital.

The application for leave to appeal was dismissed by a panel of three judges without reasons.

The appellant physician performed surgery on the respondent in 1969.

In 1979, a retained suture was discovered and removed.

The respondent brought a medical malpractice action.

Under the legislation in force in 1969, the limitation period expired one year after the termination of medical services.

In 1974, new legislation introduced a discoverability rule.

The Supreme Court of Canada held that the new limitation period did not apply retrospectively to revive a claim that was already statute-barred under the previous legislation.

The appeal was allowed and the action was declared barred.

The appellant challenged the constitutional validity of the Heroin Treatment Act, a British Columbia statute providing for the compulsory treatment and detention of heroin users.

The Supreme Court of Canada held that the Act was intra vires the provincial legislature.

The Court found that the pith and substance of the legislation was the medical treatment of heroin addicts, which falls within the province's general jurisdiction over health matters under section 92(16) of the British North America Act, 1867.

The compulsory aspects of the treatment were deemed incidental to its effectiveness and not a colourable attempt to enact criminal law.

The appellant hospital appealed a decision of the Court of Appeal which dismissed a motion for a writ of evocation against the Commission des affaires sociales.

The Commission had reversed the hospital's decision to limit a physician's general surgery privileges, finding the reduction was not based on the criteria in s. 92b of the Act respecting health services and social services.

The Supreme Court of Canada dismissed the appeal, holding that the Commission did not exceed its jurisdiction and its interpretation of the statute was not patently unreasonable.

The Royal Commission of Inquiry into the Confidentiality of Health Records in Ontario sought to compel RCMP officers to disclose the identities of physicians and hospital employees who had provided patients' medical information to the police without authorization.

The officers claimed police-informer privilege.

The Supreme Court of Canada held that the police-informer privilege is a rule of law that applies generally, including in civil proceedings and public inquiries, to protect the identity of those who furnish information to the police in the course of their duties.

The privilege belongs to the Crown and is not defeated by the fact that the informants may have breached a duty of confidentiality in providing the information.

The appeal was allowed and the officers were not required to disclose the identities.

The appellant underwent surgery performed by the respondent surgeon to remove an occlusion in his carotid artery.

During or immediately following the surgery, the appellant suffered a massive stroke leaving him paralyzed.

The appellant sued for damages, alleging he was not informed of the specific risk of stroke from the surgery itself.

The Supreme Court of Canada held that failure to disclose risks sounds in negligence, not battery.

The Court established that the duty of disclosure requires a surgeon to inform a patient of all material risks.

Furthermore, the Court adopted a modified objective test for causation, asking whether a reasonable person in the patient's particular position would have foregone the surgery if properly informed.

The Court found the surgeon breached his duty and that a reasonable person in the appellant's position, being close to a vested pension and facing no immediate emergency, would have declined the surgery.

The trial judgment awarding damages was restored.