Current and “wannabe” litigators practising (or hoping to practise) in the medical negligence area would do well to read, and consider, what happened, and why, in the just released Briante v. Vancouver Island Health Authority, 2014 BCSC 1511. Regardless of one’s position on the legal validity of the result, the result is a reminder (for those old enough to remember, or otherwise be aware of) of these statements and calls for reform (outside of the tort system) in cases such as Ferguson v Hamilton Civic Hospitals (1983), 40 OR (2d) 577, 1983 CanLII 1724 (ON SC) aff’d (1985) 50 OR (2d) 754, 1985 CanLII 2045 (ONCA).
The first quotation is from the Ferguson trial reasons (last page). The second is the complete text of the appellate reasons affirming the dismissal of the action.
I must add a personal note. In the conclusion to the reasons for judgment of Linden J. in Davidson v. Connaught Laboratories et al. (1980), 14 C.C.L.T. 251, there is to be found, in more or less precatory language, an eloquent expression of concern about the requirement of our law that fault exist as a condition precedent to the receipt of compensation in matters of this kind. I cannot leave this case without following Mr. Justice Linden’s example. I confess to a feeling of discomfort over a state of affairs, in an enlightened and compassionate society, in which a patient, who undergoes a necessary procedure and who cannot afford to bear the entire loss, through no fault of his and reposing full confidence in our system of medical care, suffers catastrophic disability but is not entitled to be compensated because of the absence of fault on the part of those involved in his care. While it may be that there is no remedy for this unfortunate and brave plaintiff and that this shortcoming should not be corrected judicially, there is, in my view, an urgent need for correction.
We can deal with this matter very shortly although that does not mean we have not given very serious consideration to the submissions made. As indicated by the trial judge this is a sad case and the result of the medical treatment has been a very unfortunate and unhappy one for the plaintiff.
At the opening of the appeal we were advised by counsel that the appellant, William Ferguson, has died since the trial and that an order of revivor has been made.
We are not in a position to review in a critical way the findings made by the experienced trial judge based on the evidence in this case. There was ample evidence to support his conclusion, in applying the objective test, that the appellant, as a reasonable patient in his position, would have chosen the medical procedure which had such unfortunate consequences. Nor are we persuaded that the failure to disclose the alternatives to that procedure fall within the meaning of “misrepresentation” as discussed by Chief Justice Laskin in Reibl v. Hughes, 1980 CanLII 23 (SCC),  2 S.C.R. 880, 114 D.L.R. (3d) 1, 14 C.C.L.T. 1. It should be noted that the suggested alternatives were, in reality, alternatives to the possible recommended surgical procedure if the investigative procedure, which had such tragic consequences, had confirmed the provisional clinical diagnosis.
Counsel for the appellant agreed that he could not rely on res ipsa loquitur on the facts of this case and he limited himself to the two submissions to which we have referred.
Accordingly, for the very full and thoughtful reasons given by the learned trial judge the appeal is dismissed. We would not want to leave this case without adding that we are in complete sympathy and agreement with the penultimate paragraph of the learned trial judge’s reasons. OHIP is the product of a socially conscious society, but we agree that in situations such as the instant one “an enlightened and compassionate society”, to use the words of the learned trial judge, should do more.
In the result, accordingly, the appeal is dismissed without costs.
It wasn’t the absence of fault that was the reason why the Briante action failed, but the statements in Ferguson are still applicable. I have written more about Briante, elsewhere, for those interested.