Cases for Final

Question 1

Mustafic v Smith

Answer 1

• Mustafic was voluntarily admitted to psychiatric facility
• Dr suspected mild depression and anxiety, but needed to observe
• gave day passes
• second visit home shot kids and himself (one survived with disabilities)
• sued dr for negligence for giving day passes without making final diagnosis
• court didn’t hold him liable because Mustafic’s conduct was not foreseeable, didn’t have suicidal or homicidal tendencies
• appealed but it was dismissed by Court of Appeal

Question 2

Sozonchuk v Polych

Answer 2

• plaintiff had neurosurgery was then transferred to neuro step-down
• condition deteriorated and had a stroke
• hospital was sued for negligently monitoring his and failing to recognize he had a stroke
• hospital settled with plaintiff and then sough to recover damages from Nurse P and OBNA (private nursing agency)

Question 3

Sozonchuk v Polych outcome

Answer 3

Nurse B was charge nurse on duty who Nurse P was supposed to report to

• Court held that Nurse P breached standard of care for someone in that unit on several grounds
• failed to realize his decreasing neurological function and that he became hemi-plegic
• didn’t tell Nurse B so he could get proper medical attention
• Court was also critical of her record keeping and rejected almost all her evidence on that basis
• claimed she consulted with Nurse B, but didn’t document it and in these circumstances it should’ve been
• a number of her record entries were made after the events, Court said gave inference that they didn’t happen

Nurse P and OBNA were together held 50% at fault for the plaintiff’s damages

Question 4

Crawford (Litigation Guardian of) v. Penny

Answer 4

• brought on behalf of Melissa Crawford born in Smith Falls
• Dr. Penny knew about Mrs. Crawford’s previous pregnancies and knew Melissa was going to be big
• Mrs Crawford was 41, obese, hypotensive, had proteinuria and family history of diabetes
• Dr Penny consulted Dr Healey about inducing labor
• Dr Healey didn’t examine or express his own judgement before concurring
• because of gestational diabetes Melissa was large and her shoulders got stuck
• Dr Healey came 10 min later for assistance
• she was deprived of oxygen, suffered catastrophic injuries and had to be resuscitated by cardiac massage

Question 5

Crawford v Penny outcome

Answer 5

Court found Dr Penny to be negligent in failure to:

• diagnose the gestational diabetes given abundant signs
• recognize his lack of skill and expertise
• keep up with developments in obstetrics
• recognize pregnancy was high risk and refer to a specialist
• consider C-section instead
• adequately brief Dr Healey on the risk of the pregnancy
• stop administering oxytocin when problems became apparent

Dr Healey was held liable in negligence for concurring w/o examining patient or exercising independent judgement

Court of Appeal affirmed the decision and $10 million judgement and awarded costs against the doctors in the amount of $255 000

Question 6

Crawford v Penny arguments

Answer 6

Dr Penny tried to argue locality rule

• Court reject because first-rate medical care was an hour away and rural doctors should know shortfalls in their communities
• Dr Penny said he talked to a specialist in Ottawa who said he could manage the delivery in Smith Falls
• specialist denied conversation and Court believed him

Court noted that in “corridor consultations” duty of care is still owed to patient and w/o disclaimer need to meet standard of care

Question 7

Till v. Walker

Answer 7

plaintiff severly handicapped, received meds through 3 tubes, one needing sterile procedures

• Walker (RPN) administered medication through tube w/o sterile procedures
• plaintiff developed life threatening septicaemia
• Court found Walker negligent for administering medication without contacting supervisor first
• VON was responsible for plaintiff’s care, was held liable for its own negligence in assigning complicated case to RPN (they should’ve known she wouldn’t know how and made no effort to advise her)
• VON was also held vicariously liable for Walker

VON 75% at fault, Walker 25%

Question 8

Turkington v Lai

Answer 8

plaintiff went to get cyst on her ovary removed, but surgeon took out both ovaries because of the shape they were in

• nicked her bowel
• sued claiming negligence in recommending and conducting surgery and failing to inform of risk of bowel nicking

Court held that surgeon acted reasonable in recommending and performing surgery

Question 9

Turkington v Lai reasoning for decision

Answer 9

• plaintiff’s expert said the surgery wasn’t necessary, but it wasn’t given much weight because it wasn’t based on sound medical research
• surgeon warned her of 5 major risks, including bowel injury, didn’t need to say nicking because of 1/100 000 chance (i.e. not serious material risk)
• surgeon didn’t need to explain doing nothing because it was not an acceptable alternative
• plaintiff also failed to establish that these alleged failures would have altered her decision i.e. a reasonable person would have the surgery

Question 10

Bollman v Soenen

Answer 10

transected plaintiff’s ureter during laparoscopy-assisted vaginal hysterectomy

• sued on several grounds, including failure to obtain an informed consent
• doctor met with plaintiff and then told plaintiff’s family dr that he reviewed the procedure and risks
• didn’t have notes or specific recollection, but he said that his standard practice was to explain risks of bleeding, infection and injury to bowel, bladder and ureter
• judge accepted plaintiff’s testimony that he only told her about bleeding an infection
• judge concluded that she wouldn’t have had the surgery if she had known and held doctor liable

Question 11

Bollman v Soenen appeal

Answer 11

doctor appealed on several grounds including causation

• Court of appeal stated that causation had both an objective and subjective component
• plaintiff was not asked what she would have done had she known the 2% risk of damage to bladder therefore there was no evidentiary basis for the judge’s conclusion for the subjective component
• judge did not consider the objective component i.e. what would a reasonable person do

Court of Appeal overturned the judgment and ordered a new trial

Question 12

Ahmed v Stefaniu background info/facts

Answer 12

• fall 1995 Johannes had 2 psychiatric admissions resulting from aggressive behaviour, then moved in with sister
• September 96 police had to forcibly remove him and was admitted involuntarily
• Dr Stefaniu assessed, said potentially violent, lacked insight to his illness, severely paranoid and incapable of consent
• challenged involuntarily admission but CCB upheld it
• mid-October Dr Stefaniu recorded that his mental state had deteriorated w/potential for self-harm or harassing others
• assaulted patients and staff while he was there, threatened department chief and psychiatrist
• Dec 2, delusional and paranoid
• Dec 3, nurses’ notes said loud, angry, intrusive w/threatening body language
• Dec 4, threatened nurse
• later that day Dr Stefaniu assessed and concluded he no longer met criteria for involuntary
• Dec 5, informed him he was now voluntary, he rejected her advice to remain in hospital and see psychiatrist
• notes indicated no signs of delusions, paranoid thinking, suicidal or homicidal ideas, did say angry, macho, provocative and fragile
• moved back in with sister
• returned to visit female patient but was disruptive
• Jan 21 North York, Dr Weinstein depressed but not involuntary
• Jan 22, Toronto, Dr Lee (resident), consulted with another Dr, offered to treat as outpatient
• Jan 24, killed his sister

Question 13

Ahmed v Stefaniu trial

Answer 13

sued Stefaniu for changing status on Dec 5

• two experts testified saying each side was right
• jury found that she breached standard of care
• she appealed
• Court of Appeal rejected her argument that since she acted in an “honest and intelligent” fashion she couldn’t be held to have breached standard of care
• Court said that jury could decide if the line between error in judgment and breach in confidentiality had been breached
• contrary to Stefaniu’s claim, Court of Appeal found that trial judge had adequately explained that she couldn’t be held liable if her decision was consistent with “a reputable body of opinion within the profession”
• also argued that trial judge didn’t adequately instruct jury on causation, said that if she hadn’t changed status Dec 5 it would’ve been changed before Jan 24 and that bc 2 other doctors concluded he didn’t meet criteria there was no evidence to support causation
• Court of Appeal said the jury could reject this argument
• Court of Appeal upheld trial decision

Question 14

A. (C.) v. Critchley

Answer 14

plaintiffs were placed in a ranch for foster care and youth justice for boys

• ranch was upgraded and re-designated as a specialized child care resource centre, giving it more funds
• complaints were made to various Crown employees that the own was abusing them, no investigation
• facility closed, plaintiff sued owner and Crown
• Court concluded that Crown had breached fiduciary duty by re-designating ranch without ensuring it complied with requirements
• Superintendent of Child Welfare (Crown employee) breached his duty in failing to conduct a foster home study of the owner, failing to ensure plaintiffs were receiving adequate education, training, recreation and supervision
• also negligent in failing to document, investigate or respond to allegations of abuse

Question 15

D. (M.) (Guardian ad litem of) v. British Columbia background info

Answer 15

Staff of the Ministry of Children and Families placed Molly, a 2 month old addicted to methadone in foster care with Ms. Kierkegaard
-had previously denied aunt custody bc she needed special care
-staff member who placed her wasn’t fully informed of her special needs and failed to make adequate arrangements
-he did know that Ms Kierkgaard wasn’t ideal
-single mother, had a special needs foster child already, broken leg, was an RN but didn’t have capacity or experience that Ministry identified as essential for Molly
-4 days after being placed Molly was admitted to hospital will catastrophic injuries caused from being violently shaken
Ms Kierkgaard plead guilty to criminal negligence causing bodily harm

Question 16

D. (M.) (Guardian ad litem of) v. British Columbia civil suit

Answer 16

aunt and uncle brought civil suit against Ms Kierkegaard and the Ministry

• Ms Kierkegaard’s liability was conceded
• judge found Ministry negligent for its bureaucratic bungling, failure to ensure effective communication among staff and decision to place Molly despite obvious unsuitability
• unable to raise statutory defence because the staff’s conduct was not undertaken in the good faith execution of their duty
• Ministry was also held vicariously liable for Ms Kierkegaard’s assaultive behaviour bc it had direct day-to-day control over her conduct

Court award Molly $6.3 million to compensate for injuries and future care

Question 17

McInerney v. Macdonald

Answer 17

MacDonald asked McInerney for complete copy of her file

• McInerney gave her a copy of the material she had prepared but wouldn’t give her what other physicians had, said she should contact them directly
• Supreme Court rejected Mcinnerney’s position and ordered her to release the entire file
• Court stated that, in absence of legislation, patient is entitled to examine and obtain a copy of the whole record, including from other physicians and any info in providing advice or treatment
• Also noted that physicians can apply to deny patient access if they can prove it would endanger the patient or others
• since Mcinnerney couldn’t prove it would pose a risk Macdonald’s request had to be allowed

Question 18

R v. Gruenke

Answer 18

accused charged with first degree murder, prior to trial admitted her role to pastor and lay counsellor

• trial judge ruled that both were required to testify and that her statements to them were admissible in evidence
• she was convicted, but appealed on the grounds that her statements should’ve been privileged
• Supreme Court noted that Eng and Fr Canadian courts had not as a matter of practice required clergy to disclose confidential religious communications, however they emphasized that such communications should not be automatically privileged at common law
• as a general rule all relevant evidence is admissible and therefore policy reasons required to justify the recognition for a class of privilege would have to be as compelling as solicitor/client
• Supreme Court found that while religious communication was of social importance, extending a blanket class privilege could not be justified
• would be assessed on a case-by-case basis under the 4-part Slavutych test
• fact that statements were not made to an ordained priest or minister and weren’t a formal religious confession did not preclude possibility of privilege
• Supreme Court held that statements had been properly admitted into evidence
• didn’t even meet the first requirement of the test (that the statements be made with expectation of confidentiality)
• said the accused’s behaviour indicated that they were made more to relieve stress than for religious reasons and therefore couldn’t expect confidentiality
• Supreme Court concluded that statements weren’t privileged, Court dismissed appeal and upheld conviction

Question 19

Straka v Humber River Regional Hospital

Answer 19

hospital obtained reference letters from St Michael’s hospital concerning Dr Straka’s application for medical privileges at Humber

• letters were solicited with understanding they would be held in strict confidence
• Straka wanted access to the letters, Court held them to be privileged
• Court stated application to privilege confidential communications had to be assessed at its specific facts
• public interest in the appropriate resolution of Dr Straka’s potential claims against Humber were outweighed by the public interest in maintaining integrity of the peer review process in hospital appointments

-Court noted that the existing statutory procedures provided Dr Straka a legal right to challenge hospital’s decision to deny him privileges and clear his name and protect his interests

Question 20

Steep (Litigation Guardian of) v. Scott

Answer 20

plaintiff’s request for “quality assurance reports” and “peer review evaluations” was denied

• Court held that the documents satisfied the 4 criteria for privilege
• emphasized the strong public interest in ensuring that hospital care was effectively assessed and improved
• Court also considered that granting privilege would not prejudice the plaintiff’s case, as almost all relevant info was available by other means

Question 21

R. v. B.

Answer 21

16 yo murdered elderly woman

• determining whether he should be tried as an adult, had to decide if his Ontario Student Record was admissible in federal criminal proceedings
• School Board said it was privileged under Ontario Education Act
• Court concluded that there was a conflict between Education Act and Canada Evidence Act
• as a matter of constitutional law, federal law prevails over conflicting provincial law
• OSR was allowed and Board employees had to testify

Question 22

R. v, O’Connor

Answer 22

Supreme Court trying to balance competing interests of victim and accused

• stated that confidential info in the Crown’s position had to be disclosed to the defence
• information in a third party’s possession was not subject to automatic disclosure, in these circumstances court had to balance victim’s right to privacy and equality with the accused’s Charter rights
• if judge ultimately decided that record contained info that was required to safeguard accused’s Charter rights, it had to be disclosed to the extent the judge deemed appropriate

prompted Criminal Code amendments that only apply to designated sexual offences

Question 23

Tadros v. Peel Regional Police

Answer 23

Peel police charged Taros with 8 sexual offences based on allegation made by children in his licensed group home, they were later withdrawn

• Tadros signed Toronto police authorization former requisition Criminal Record Search and Vulnerable Persons Search to use for employment purposes
• Toronto police contacted Peel police, who forwarded info about withdrawn charges
• Toronto police contacted agencies to which Taros had applied indicating that reference checks were done and that Tadros had a summary
• neither police force disclosed the information
• Tadros alleged that at least one agency learned of withdrawn charges and that inclusions of them in the Vulnerable Persons Search led to his difficulty getting a job in group home field
• his lawyer requested that Peel police withhold info about the charges and destroy underlying records
• Peel police refused, Tadros obtained an injunction, police appealed
• Court of Appeal set aside the injunction
• Peel police disclosed info base on forms that Tadros signed
• MFIPPA authorizes disclosure of personal info with person’s consent
• info about withdrawn charges was based on what occurred in a public court and did not constitute a search or seizure under Charter
• sharing of info between police forces about a public prosecution does not infringe section 7 of the Charter

Question 24

A Complaint of the Provincial Medical Board Against Dr Eric Hansen

Answer 24

psychiatrist, learned that former patient was charging someone with sexual assault (was convicted), thought she may think it was true even though it wasn’t bc of condition

• didn’t attend trial, contact patient, Crown or defence counsel
• Hansen then contacted Crown with concerns who then had a duty to disclose concerns to defence counsel
• defence obtained an order for psychiatric file and new trial was ordered
• before new trial began accused pled guilty to 2 separate charges of sexual assault
• patient complained to Nova Scotia CPS about breach of confidentiality
• College found that Hansen had not made careful assessment of the facts and didn’t have a strong basis for his conclusion that patient may have testified falsely
• ruled his incompetence constituted professional misconduct and suspended license for 3 months
• College recognize that physician may justifiably breach confidentiality, but only after a thorough assessment of all the facts including direct contact with patient
• if physician “concludes that it is highly probable that a serious miscarriage of justice has occurred” they can come forward and disclose only as much info as necessary

Dr. Hansen appealed College’s decision to Nova Scotia Supreme Court, but settled with Medical Board before hearing
-agreed to professional misconduct and 2 months suspension

Question 25

R v. Kaiga

Answer 25

Mr Kaiga, high school teacher who ran community basketball program for young boys

• a boy told his mom that a coach sexually assaulted another boy and was seen masturbating, mother told Mr Kaiga that night
• Kiaga dismissed coach, but didn’t contact police or CAS
• Kaiga was charged with provincial offence of failing to report a suspected case of child abuse under CFSA
• judge noted that teachers and other professionals can only be found guilty of failing to report suspected abuse if the info upon which suspicion is based was obtained in course of official duties
• Kaiga didn’t have teaching relationship with any both in the program nor was it part of his educational responsibilities
• charge was dismissed

Question 26

T. (J.) c. Barber

Answer 26

plaintiff, federal government employee, was having nightmares she killed her father, met with employment assistance program counsellor

• counsellor wasn’t proficient in french and thought she said she was planning on killing her father
• called police who took her for mental health assessment
• manger told supervisor who barred plaintiff from returning to work w/o certificate of mental wellbeing
• security, HR, management and others were notified and her access card was taken
• sued manager, counsellor and federal government on various grounds including breach in confidentiality
• Court held counsellor negligent for not understanding language she offered services in
• even in plaintiff said she was going to kill father, could only breach confidentiality if counsellor thought threat would be carried out
• Counsellor argued that given her obligations in workplace security she was justified in informing supervisors
• Court rejected, said employers can’t offer confidential counselling and then divulge info w/o consent

plaintiff was awarded more than $170 000 in damages