Liability Theories
There are three areas of liability in medical malpractice
- Battery
- Contract
- Negligence
- Accounts for most medical malpractice theory
Non-consensual, intrusive, invasive touching.
- The touching - not the result is the battery.
- The plaintiff may have benefited from the battery.
Contract
LaFleur v Cornelis (Quebec 1979)
Rhinoplasty case - elective, cosmetic surgery. The operation caused a scar or indentation on her nose. The action was for negligence and breach of contract as there had been a promise or guarantee about the outcome. The surgeon had chosen a procedure that only 20% of doctors in plastic surgery would have used at that time.
The court held that:
- The duty on a specialist was higher than that on a family doctor
- The doctor did fail to protect the nose from injury and his performance of the procedure was negligent.
- The doctor did fail to inform the patient about the inherent risks of surgery - when surgery is elective a high degree of disclosure of risks is required.
- However it was also held that the patient would still have had the surgery even if the risks had been explained.
The doctor was found liable for negligence in the performance of the procedure and for a breech of promise (contract).
As far as his failure to inform her about the risks of the surgery, no negligence was found as it was held that she would have had the surgery even if she had been told (no causation).
