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PSYCH HARM + DUTY TO WARN - Coggle Diagram
PSYCH HARM + DUTY TO WARN
psychiatric harm (Sadati :red_flag:)
proving mental injury
Requires provable or objective indicators that claimant’s psychiatric injury arises from from D’s conduct
Expert medical evidence is not required but may assist
focus on symptoms not on diagnosis
arises in three contexts
The only harmed suffered by the plaintiff is pure psychiatric harm
When psychiatric harm is reasonably foreseeable for a person of ordinary fortitude
Someone who witnesses negligence suffers psychiatric harm
court requires 3 kinds of proximity (ex. in Marcena v Thomson)
locational
temporal
relational
Plaintiff suffers a physical AND psychiatric injury
Courts would recognize this, not too remote
general principles
rationale: “the distinction between physical and mental injury is ‘elusive and arguably artificial in the context of tort"
no need for a condition that can be diagnosed, just need
serious and prolonged disturbance that rises above ordinary emotional disturbances or annoyances
, anxieties and fears that come with living in civil society
Same legal protection for all forms of personal injuries, physical or mental
courts have been reluctant to recognize it until Sadati 2017
KEY QUESTION: “whether the occurrence of mental harm in a person of ordinary fortitude was the reasonably foreseeable result of the defendant’s negligent conduct”
LEGAL CAUSATION STEP
Doctors duty to warn (Reibl v Hughes :red_flag:)
if you treat without consent --> battery
if consent is not informed --> negligence
for a successful claim, plaintiffs have to prove:
the physician did not sufficiently inform them of the risk of the procedure
A reasonable person in their position would not have consented if they had been informed of the risk (modified objective test)
The negligence is not about how the procedure was performed,
the procedure had a risk in all cases, even if performed perfectly
, the issue is about the
content of the information provided
to the patient beforehand
content of discolsure
What is material is determined by what the reasonable person in the particular circumstances of the patient would view as material
ANY risk to reproductive capacity must be disclosed
Must also disclose alternative methods / treatments and risks & benefits and make it possible to exercise choice (Van Mol :red_flag:)
Physicians must disclose “the nature of the proposed operation, its gravity, any
material, special or unusual risks
attendant upon the performance of the operation,” and respond to questions posed by the patient
(Hopp v. Lepp :red_flag:)
The duty to inform will be more onerous if the
patient asks specific questions or expresses specific concerns
or if the physician is otherwise aware that the patient desires a fuller explanation. (Videto :red_flag:)
manner of disclosure
Appropriate to patient’s intelligence, skills and abilities
Use interpreter, if necessary
Specific terms unnecessary if risk is adequately communicated
Ensure patient understands information - narrowly construed
Martin v Capital Health Authority :red_flag:
Manufacturers duty to warn
duties
duty of
reasonable care in the design and manufacture
of their products.
duty to
warn consumers of risks
inherent in intended or ordinary use of their product
rationale
Safe use of product – consumers reasonably rely on manufacturers to make safe products or warn them of risks associated with use of their products
Informational / knowledge imbalance between manufacturers and consumers
Informed consumer choice – provide information about the products to promote informed consumer choice
profit motive of manufacturers
Duty not onerous – manufactures should provide accurate and complete information
scope of duty
Warning must be
consistent with the level of danger entailed
in ordinary use of the product (Hollis :red_flag:)
Manufacturers are not expected to warn of every risk, e.g. common risks associated with the use of the product
dont have to warn of risks if product is misused unless they know it is frequently misused (Hollis :red_flag:)
continuing duty: time of sale and after (ex. recalls)
learned intermediary rule
manufacturer’s duty may be met by manufacturer warning a learned intermediary
the manufacturer can only be said to have discharged its duty (met standard) to the consumer when the intermediary’s knowledge approximates that of the manufacturer (Hollis :red_flag:)
depends on the nature of the product (ex. medication that you cant have without going through a doctor)
this does not discharge the duty (manufacturer AND intermediary now have a duty to the consumer)
Test for Causation – Subjective test:
Whether patient would have used product if aware of risks
(reasonableness of the patient’s decision irrelevant)