A nurse’s negligence – not mitigated by “good faith”
PUBLISHED: A nurse’s negligence not mitigated by ‘good faith’, Law360 Canada, LexisNexis, September 18, 2024.
On August 24, 2024, the Premier of New Brunswick, Blaine Higgs, issued a statement that, if acted upon by his government, will set back Canadian jurisprudence almost 100 years, in that province. Premier Higgs advised of his intention to introduce new legislation that would protect “health-care professionals from being named in lawsuits” if they acted in “good faith”. If enacted, this proposed legislative change would prevent patients, who have suffered injury at the hands of their treating nurses and physicians, from suing in court to recover the damages they sustained as a result of medical misadventure.
The Premier released this statement following the death of a 78-year-old man who died while sitting in an Emergency Room (“ER”) waiting to be treated. His family sued the hospital and two of the attending nurses in a medical malpractice lawsuit. In his statement, Premier Higgs proclaimed that it is “unacceptable” for the family of that patient to sue the attending nurses, since a hospital inquiry did not find any “negligence on the part of these nurses.”
Despite the Premier’s sentiments to protect regulated health professionals (something which this writer is certainly passionate about), if enacted, his proposed legislative amendment would upend Canadian jurisprudence, at least in New Brunswick. Here’s why.
Historically, under the British common law system (adopted in Canada and throughout the Commonwealth) only intentional torts were compensable. Conversely, if the acts complained of were unintended (i.e. not committed in bad faith), injured parties, including medical patients, had no effective legal remedy to recover monetary damages for their loss.
The common law evolved (as it does) in 1932, in a seminal case, Donoghue v Stevenson, [1932] AC 562, where a snail was found in a bottle of ginger beer. A woman alleged that she became ill after she drank the ginger beer, and she sued the manufacturer claiming damages for the injury she sustained. It was undeniable that the defendant manufacturer did not intend to put a decomposed snail in the ginger beer bottle. However, the British House of Lords, England’s highest court, decided that because the defendant had been careless (albeit unintentionally), the defendant was liable for its actions and the plaintiff was entitled to be compensated for her injury. The House of Lords called this unintentional, but substandard, conduct ‘negligence’. In the court’s view, the negligent manufacturer, and not the innocent plaintiff, should be the party to bear the loss.
Following Donoghue v Stevenson, the case law in negligence has continued to evolve. In the context of medical treatment, negligence is commonly referred to as ‘medical malpractice’.
What does a plaintiff in such a lawsuit need to prove? To be successful, a plaintiff must be in a position to demonstrate that; 1) the defendant owed the patient (plaintiff) a duty of care; 2) there was a breach of the standard of care owed to that plaintiff; 3) injury occurred as a result of that breach; and 4) the plaintiff (or his/her estate) was injured and/or died as a result.
With respect to the first criteria, and in the context of a medical encounter, it is accepted in Canadian jurisprudence that all health professionals owe their patients a duty of care to meet the standard of care, in the course of treating their patients. The term ‘standard of care’ means that the health professional must exercise a degree of care that would be reasonably expected of any similarly trained medical professional in the same set of circumstances. It is a standard that any health professional must meet in every case.
Despite the import of Premier Higgs’ recent statement, the law of negligence, or medical malpractice, has essentially nothing to do with the “good faith” of the treating health professional. Good faith is irrelevant to whether the treating health professional owed the patient a duty of care and breached the standard of care.
The central problem with Premier Higg’s proposal is obvious: under his ‘good faith’ test, as long as the nurse (or other health professional) acted with the best of intentions, they could never be sued, even if they were grossly incompetent. This would basically eliminate the concept, and purpose, of the standard of care.
Is good faith relevant, at all? It is, but only to the issue of whether punitive damages should be awarded to an injured plaintiff. Punitive damages are monetary damages awarded over and above compensatory damages. The issue of good faith, or bad faith, goes to the health professional’s motive and intention. Punitive damages are awarded in cases of bad faith in order to punish a wayward defendant for their conduct, and deter the health professional from engaging in similar conduct in the future.
To be clear, the vast majority of health professionals act in good faith: they have chosen a profession to help people. That does not mean, however, that they have necessarily maintained the standard of care.
This brings us to the final comments contained in Premier Higgs’ recent pronouncement. He said: “our government strongly objects to the legal tactic of naming nurses personally in the lawsuit.” He believes: “that front-line health-care providers – who serve patients in good faith and to the best of their abilities – should not have extra stress heaped upon them by being named in lawsuits. Even if costs are covered, it is still an attack on a nurse’s reputation, and is personally stressful.”
This statement, in a word, is problematic. First, it is unfair to impugn the legal profession for what he calls the “legal tactic” of naming nurses in a medical malpractice action. Patients retain lawyers to sue culpable parties who have injured them. It would be incompetent of any trial lawyer, and substandard practice, to leave any potential culpable defendant out of any action. Especially in medical malpractice cases, neither the patient nor the lawyer (nor the hospital) can have any real understanding of exactly what happened, or who was wholly or partly at fault, until an action has been commenced, documentary medical productions have been exchanged, examinations for discovery under oath have been conducted, and expert opinions have been obtained. The Premier’s suggestion that nurses shouldn’t be named in lawsuits, would, logistically, prevent these lawsuits from commencing and prevent any legal determination of good faith over bad, to begin with.
The Premier is sympathetic to the stress that a nurse would experience when sued by an injured patient making malpractice allegations. So is this writer. The problem is that the Premier is essentially suggesting that a nurse’s stress arising from a lawsuit outweighs the legal right of an injured patient to seek compensation for having been negligently treated.
The Premier’s comments and recommendations are ill-advised. They fail to consider the ramifications of a litigation ban against suing nurses (and others). Good faith does not exonerate a negligent health professional. The presence of good faith, in terms of liability in negligence, is largely irrelevant. Regardless of the Premier’s own good intentions, such an enactment would wreak havoc in the field of medical malpractice actions, making New Brunswick an outlier in Canada. Injured patients would be prevented from accessing justice in the face of medical malpractice. Incompetent nurses would be permitted to practice with impunity – which would also undermine the reputation of nursing, as a whole. Finally, the proposed amendments would place an unfair burden on physicians who (particularly in an ER setting to cite but one example) must rely on the nurses to appropriately triage and treat patients not only in good faith, but also in accordance with the standard of care.
