Contributory Negligence in Medical Negligence Actions
The decision in Henry v Bovin et al (2023 ONSC 663 CanLii) released January 30, 2023, confirms that plaintiffs must be aware of the possibility of being found to have contributed to a suboptimal outcome from medical care and suffer a reduction of damages as a result. Contributory negligence may bleed into the court’s evaluation of the health care provider.
Indecision about surgery factors into contributory negligence
Ms. Henry suffered a ruptured Achilles tendon, which was assessed by the defendant family doctor. Advice was given and imaging scheduled to determine if there was a rupture. Evidence at trial differed about what Ms. Henry did or did not do in following advice. She delayed making a decision about surgery for several months. She then sought damages resulting from chronic pain.
The judge’s findings in Henry v Bovin
From a reading of the decision, it does not appear that Justice Roger found Ms. Henry to be either a likeable or credible witness. Although the court found that the target doctor met the standard of care, Justice Roger found that, had there been negligence on the part of the doctor, there would have been contributory negligence.
Roger J cited the SCC: A plaintiff contributes to their injuries when they engage in unreasonable conduct which exacerbates their injuries: Bow Valley Husky (Bermuda) Ltd v. Saint John Shipbuilding Ltd. Patients have certain duties and responsibilities when seeking medical treatment, including: (a) a duty to provide information to the doctor; (b) to follow instructions; and (3) generally to act in their own best interests: Polera v. Wade, 2015 ONSC 821.
A cautionary personal injury tale
Contributory negligence is not something that is seen very often in medical negligence cases. Usually, the plaintiff will be able to state that the advice of the physician was followed, but that it was inadequate or unclear.
Here, the doctor was able to demonstrate with documentation that the plaintiff delayed seeking definitive treatment, and was lacking in credibility generally, making her assertions of inadequate instructions from her doctor unreliable. She failed to follow advice, delayed surgery, and was not diligent in her post-operative rehabilitation.
This case is a cautionary tale for counsel’s assessment of the client’s credibility, diligence, and overstatement of the impact of the injuries.
