Hobbs et al v. Robertson et al

Hobbs et al v. Robertson et al

The signed refusal/release did not, by its wording or ordinary meaning, extend to shield the surgeons from liability for negligent surgical conduct; a patient's refusal to accept transfusion does not constitute consent to negligent performance that creates the need for transfusion, and public policy precludes permitting surgeons to contract out of liability for negligence. Therefore the defendants' Rule 18A dismissal application fails.

Citation
2001 BCSC 162
Parties
Plaintiff (on His Own Behalf): Ernest Hobbs; Plaintiff Guardian Ad Litem: Ernest Hobbs as Guardian ad Litem for Kaleb Hobbs; Plaintiff (minor): Travis Hobbs (also known as Travis Redlack); Plaintiff (minor): Jada Hobbs (also known as Jada Redlack); Defendant Physician: Dr. John G.M. Robertson; Defendant Physician: Dr. R.W.M. Jones; Defendant Physician: Dr. Dominique Bajard; Defendant Physician: Dr. A.A. Suleman; Defendant Physician: Dr. Allister R. Richmond; Defendant Hospital: Chilliwack General Hospital Society
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
1 February 2001
Procedural Posture
Medical Negligence; Contract and Tort / Notice of Motion Under Rule 18 a for Dismissal (application for Summary Dismissal)
Outcome
Defendants' R.18A application dismissed.
Legal Topics
Informed Refusal, Waiver/release, Volenti Non Fit Injuria (assumption of Risk), Causation (but For), Patient Physician Contractual Relationship, Contracting Out of Negligence
Source Language
English
Medical Negligence Contract Law Tort Consent to Medical Treatment Public Policy Informed Refusal Waiver/release Volenti Non Fit Injuria (assumption of Risk) +3 more

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Parties

Ernest Hobbs

Plaintiff (on His Own Behalf)

Ernest Hobbs as Guardian ad Litem for Kaleb Hobbs

Plaintiff Guardian Ad Litem

Travis Hobbs (also known as Travis Redlack)

Plaintiff (minor)

Jada Hobbs (also known as Jada Redlack)

Plaintiff (minor)

Dr. John G.M. Robertson

Defendant Physician

Dr. R.W.M. Jones

Defendant Physician

Dr. Dominique Bajard

Defendant Physician

Dr. A.A. Suleman

Defendant Physician

Dr. Allister R. Richmond

Defendant Physician

Chilliwack General Hospital Society

Defendant Hospital

Procedural Posture

Medical Negligence; Contract and Tort / Notice of Motion Under Rule 18 a for Dismissal (application for Summary Dismissal)

Legal Issues

  1. 1 Whether a pre-operative refusal/release excused physicians from liability for their negligence
  2. 2 Whether the patient-physician relationship was contractual
  3. 3 Whether volenti/assumption of risk applied to negligent surgical conduct

Ratio Decidendi

The signed refusal/release did not, by its wording or ordinary meaning, extend to shield the surgeons from liability for negligent surgical conduct; a patient's refusal to accept transfusion does not constitute consent to negligent performance that creates the need for transfusion, and public policy precludes permitting surgeons to contract out of liability for negligence. Therefore the defendants' Rule 18A dismissal application fails.

Court Disposition

Defendants' R.18A application dismissed.

Orders

  • Defendants' application pursuant to R. 18A dismissed.
  • Plaintiffs awarded costs on Scale 3.