Breach of Fiduciary Duty and Medical Negligence by a Doctor

Ms. Friendly* retained Bogoroch & Associates LLP on March 25, 2010. In June 2009, Ms. Friendly underwent a surgery performed by Dr. Paul*. Following the surgery, Ms. Friendly developed a bowel perforation, setting in motion a long chain of events resulting in serious physical and psychological limitations, including the need for 15 more surgeries and an ostomy bag, and development of a large hernia and severe depression.

Initially, a number of doctors, nurses, and hospitals were included as Defendants, and were sued using a number of legal theories, including medical negligence, breach of contract, and breach of fiduciary duty. As the case progressed through Examinations for Discovery and the exchange of expert reports, the issues in the case were narrowed.

Medical Malpractice Case

Ms. Friendly started a medical malpractice case against Dr. Paul, but it became clear that Ms. Friendly likely would not be able to prove that Dr. Paul was negligent. That’s because, in medical malpractice cases, the plaintiff must prove not only that something substandard was done, but that, “but for” that substandard act, the patient would have had a better outcome. This must be proven on a balance of probabilities, meaning it must be “more likely than not,” and the only people who can give this evidence are expert witnesses. Unfortunately for Ms. Friendly, Defence counsel retained a national expert on Ms. Friendly’s specific condition, whose evidence would likely be accepted by a judge.

However, because of a very thorough Examination for Discovery, Bogoroch & Associates LLP had another theory to pursue.

Examination for Discovery

Through the Examination for Discovery of a representative of the Hospital where Dr. Paul worked, Bogoroch & Associates LLP obtained Dr. Paul’s privileges file. Doctors in Ontario are not employees of hospitals, but hospitals have obligations to make sure that the doctors that are allowed to work at their hospitals, formally known as having “hospital privileges”, are up to a certain standard.

It came to light that Dr. Paul was not considered to be at this standard. In fact, as far back as 2006, there were concerns about Dr. Paul’s ability to safely care for patients, which the Hospital investigated. Finally, in May 2009, one month before Dr. Paul operated on Ms. Friendly, the Hospital decided Dr. Paul would not be allowed to work there anymore. Because Dr. Paul appealed this decision, she was still working at the Hospital in June 2009, until her appeal could be resolved. Dr. Paul ended up dropping her appeal, but not before she operated on Ms. Friendly.

Breach of Fiduciary Duty

Bogoroch & Associates LLP pursued the case against the Hospital for malpractice for allowing Dr. Paul to work there. Bogoroch & Associates LLP also argued that the Hospital and Dr. Paul breached their fiduciary duties owed to Ms. Friendly. Fiduciary duties are special responsibilities that only come up in certain relationships, usually where there is a power imbalance. When one person or corporation owes another person a fiduciary duty, like doctors do to patients, it means they have to act in that person’s best interests, and only in their best interests.

Ms. Friendly’s case was scheduled to go to trial at the end of 2018. Following a motion brought by the Hospital and Dr. Paul in summer of 2018, which was successfully fought, counsel for the Hospital settled with Ms. Friendly. Bogoroch & Associates LLP set up a special deal, called a Pierringer Agreement, so that the Hospital could pay its share and avoid a trial, without impacting Dr. Paul’s ability to have a fair defence.

In the weeks leading up to trial, the remaining legal issue was whether or not Dr. Paul breached fiduciary duties because Dr. Paul did not tell Ms. Friendly about the serious concerns the Hospital had about Dr. Paul’s ability to safely perform surgeries. This was a novel argument, and there is no decision in Canada that answers the question, but Bogoroch & Associates LLP was prepared to go to trial to ensure Ms. Friendly got access to justice and obtained some compensation. There were many calls, letters, and documents exchanged with counsel for Dr. Paul.

Medical Malpractice Lawsuit

Ultimately, 10 days before the trial was scheduled to start, Bogoroch & Associates LLP was able to negotiate an excellent settlement of Ms. Friendly’s case.

Bogoroch & Associates LLP was honoured to represent Ms. Friendly, and to demonstrate that, even if it means applying the law in a new way,  we will pursue justice for our clients with determination and persistence no matter how difficult or challenging the case may be.  Holding physicians, nurses, and other health care providers accountable for their negligence by providing access to justice for victims of medical malpractice is the hallmark of Bogoroch & Associates LLP.

If you or your loved one believes that you are a victim of malpractice or negligence, reach out to a medical malpractice lawyer to understand if you too have a claim. Please contact any of our medical malpractice lawyers at Bogoroch & Associates LLP for a free consultation. All medical malpractice cases are taken on a contingency fee basis.

*The names of Ms. Friendly and Dr. Paul have been changed to preserve confidentiality