In this capsule, Me Lambert looks at the obligations to which doctors and hospitals are subject regarding the medical equipment used by explaining the legislation and jurisprudence related to the subject.
The provisions of the Civil Code
The Civil Code of Québec obliges every person to make reparation for the damage caused to others by his fault. In order to succeed in his action and be entitled to compensation, the plaintiff must therefore demonstrate that he suffered damage and that it was directly caused by the defendant’s wrongful conduct.
With regard to cases involving error and malfunction of medical devices, it will therefore be necessary to establish that the use made by the doctor represents a fault within the meaning of the law. Experts in the field agree that there are several ways to do this. First, it is possible to prove the wrongful conduct of a physician by demonstrating that these acts contravened the obligation to which he was subject, an obligation generally imposed by the Civil Code or the Code of Ethics of Physicians.
With regard to the use of the medical equipment used, the physician is bound by an obligation of means when the tool, product or device is directly handled by humans. Thus, the professional will have to make sure to use the equipment diligently, so as to avoid that foreseeable accidents occur. It is therefore this principle that applies when talking about the improper handling of a scalpel during an operation or a needle that breaks in the hands of a surgeon.
Misuse of a product
The use of products or medicines is an excellent example of material that must be directly handled by a professional. Moreover, the case-law generally associates such use with an obligation of means. Physicians must therefore diligently to the best of their ability to prevent damage that may be caused by an expired expiration date, incorrect dosage, clumsy injection, or a lack of caution about allergies or pre-existing conditions in their clients. However, they are not responsible for the quality of the products they use.
In one case, the applicant had to undergo radiology in order to complete her diagnosis. For these purposes, it was necessary to inject him with a contrasting liquid that would make it possible to visualize the appropriate installation of a catheter. The radiologist’s assistant was responsible for preparing the examination tray on which he was to place a syringe containing the contrasting liquid. The radiologist proceeded to inject the fluid, which was followed by the patient’s death. The evidence before the court shows that the assistant acted negligently and filled the syringe with alcohol instead of putting the proper liquid in it. The Court of Appeal ordered him to make reparation for the damage caused to the victim’s estate, but exonerated the radiologist since he had behaved as a reasonable and diligent person.
Damage caused by the autonomous fact of a device
It may also be possible that the use of medical equipment is subject to an obligation of result. This is the case for devices that are characterized as autonomous, that is to say that human and direct intervention is rarely necessary for their proper functioning.
This obligation stems from article 1465 of the Civil Code, which provides as follows:
The custodian of a property is obliged to make reparation for the damage caused by the autonomous act of the property, unless he proves that he has committed no fault.
Thus, when damage is caused by the autonomous fact of a medical device such as a malfunction of the internal mechanism, the plaintiff benefits from a legal presumption of fault. It will be sufficient to demonstrate that the malfunction of the equipment in question is indeed the cause of the harm suffered by the patient. It will be up to the doctor having custody of the property to demonstrate his absence of fault.
For example, in a case before the Superior Court, the judge recognized the responsibility of an anaesthetist who improperly installed a respirator and failed to comply with his duty to supervise. Indeed, the patient had to undergo surgery under anesthesia and it was only 30 minutes after the start of the procedure that the doctor realized that the respiratory system was not working. Oxygen did not reach the patient because a pipe connecting the patient to an oxygen supply valve was disconnected. The patient entered a vegetative state and died 14 months later. The Court recognized the anaesthetist as the custodian of the device and he was unable to rebut the presumption of fault because he failed in his duty of supervision.
In another case, the treatment of a patient required the use of a heated mattress. The latter overheated due to a mechanical breakdown and severely burned the applicant. In that decision, the Court recalled that the liability for the devices used to provide care stems from an obligation of result and ordered the hospital centre to pay damages to the victim for having breached its obligation.
However, it is important to keep in mind that each situation is a case in question that must be analyzed in the light of all the circumstances surrounding it.
If you have suffered harm due to a wrong dosage of medication or an autonomous fact of a medical device, contact us without delay.