In 1970, a healthy 19-year-old man started to feel ill. He could not get out of bed, was constantly thirsty and was urinating repeatedly. The next day, he was so weak he could barely walk into the doctor’s office. The doctor thought he had tonsillitis, and making no note of the man’s symptoms of polydipsia (constantly thirsty) or polyuria (urinating repeatedly), sent him home with a prescription.
The man got progressively weaker and more ill, so his family took him to a Scarborough area hospital emergency room that night. Again, despite his symptoms, no urinalysis was done. The doctor in fact incorrectly noted the man’s hyperventilation as a diagnosis rather than a symptom on his record. He was given Phenobarbital and Valium and was admitted to the intensive care unit.
Later that night, a nurse happened to smell a fruity odour on the man’s breath. A urinalysis showed higher levels of glucose and the man was immediately started on insulin. However, it was too late to prevent cardiac arrest as a result of his hyperventilation, made worse by the drugs that were administered incorrectly. The man suffered severe cognitive impairment and is dependent on others in most aspects of life. While he recovered from the vegetative state enough to move around, he cannot perform basic tasks because of severe memory loss and intellectual impairment.
This case, decided in 1980, continues to be a very significant case in Canadian tort law with respect to hospital liability for independent physicians. The physician in this case was not sued, so in order to be successful, the plaintiff had to show that the hospital was vicariously liable (responsible) for the care and treatment provided by the independent physician.
At trial, the Court indicated that the hospital is liable to a patient directly for failure to provide a “safe system”. Thus, the hospital was held liable for the negligence of a doctor who was not an employee but an independent contractor.
However, the matter did not end there. The defendant hospital appealed the decision and the Ontario Court of Appeal reversed the trial decision. The majority of the Court of Appeal held that there was no non-delegable duty of care owed by the hospital to the patient in the circumstances. There was a strong dissenting opinion from Mr. Justice Blair holding that a non-delegable duty of care to provide non-negligent treatment could and did exist in Ontario.
Sommers & Roth appealed the decision to the Supreme Court of Canada. However, at this point, the hospital agreed to pay the patient a guaranteed minimum of $1.8 million to settle the case out of court. It is possible that the hospital was concerned that the dissenting opinion in the Court of Appeal might have been upheld in the Supreme Court of Canada, thereby setting a precedent that would have established a non-delegable duty to provide medical treatment under similar circumstances.
Sommers Roth & Elmaleh Professional Corporation has over 40 years of experience in medical malpractice litigation in the Greater Toronto Area (GTA), Ontario, and across Canada.
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Disclaimer: Past results of cases and recoveries by our medical malpractice/medical negligence lawyers against hospitals, doctors, midwives, nurses and other healthcare professionals are not necessarily indicative of future results. The amounts recovered and other litigation outcomes will vary according to the facts in individual cases.