Law in Quebec

Jonathan Fontaine-Duval, a kinesiologist and a keen sportsman who “devoted himself to young people as a baseball coach,” was in excellent health until one day in June 2015 he went to see a doctor because of fatigue and pain, particularly in his lower back, abdomen and neck. He was diagnosed with Hodgkin’s lymphoma, and was put on an aggressive chemotherapy.

The treatment worked. After four months of therapy, any traces of Hodgkin’s disappeared. Fontaine-Duval nevertheless continued to receive chemo until the beginning of January 2016. Two weeks later, he passed away, from a complication of type I diabetes, a disease from which he did not suffer before his chemotherapy treatments. He was receiving chemo treatment at the McGill University Health Centre (MUHC) at the time, but was not treated for the onset of his diabetes.

“Was the onset of this new disease, from which he had not previously suffered, a coincidence or could it have been foreseen? Did the MUHC have a duty to act during treatment to ensure Jonathan’s safety? These are the main questions that must be answered to determine whether the MUHC committed a fault that engages its responsibility.”

Judge Stéphane Davignon in Duval c. Centre universitaire de santé McGill (CUSM), 2022 QCCQ 201.

The MUHC argued that it could not be held liable for the misconduct of a physician working in its hospital centre. It argued that under article 136 of the Act respecting health services and social services (Act) a physician is deemed not to be a member of the institution’s staff. “This section enshrines the principle that there is no prepositional relationship between the hospital and the physician who practices there by performing a medical act,” said Judge Davignon.

The hospital centre maintained that it grants the physician practice privileges under article 129 of the Act, but he is paid by the Régie d’assurance-maladie (Quebec government’s health insurance board) and it is the Medical Act that confers on him the exclusive practice of medicine. As a result, the hospital cannot commit to a patient to provide a service, since this would be prohibited by law. Consequently, the MUHC cannot be held liable solely because of the fault of one of its doctors.

Judge Davignon held that the argument, while enticing, cannot be retained.

[72] The Court cannot reach this conclusion in light of all the evidence and the opinion expressed by Dr. Cournoyer (an expert witness). There was an obvious laxity in the monitoring of Jonathan’s care and, in his case, the consequences proved tragic. It is obviously impossible to say that his death would necessarily have been avoided, but the means to do so had to be put forward. They were not.

[80]  The MUHC owed Jonathan a duty of care, diligence and safety in the provision of his care. While it could not guarantee the success of his treatment or the cure of his illness, it had a duty to take all reasonable steps to do so. It is a hospital established under the (Act). As an institution, it is not a shapeless beast that can escape responsibility on the pretext that it is part of a health system that knows its limitations, nor can it be held responsible simply by arguing that it cannot be held responsible for the fault of a doctor working there.

[82] In accordance with article 5 of the Act, Jonathan had the right to receive from the MUHC health and social services that were scientifically, humanly and socially adequate, with continuity and in a personalized and safe manner. More specifically, he had the right to be adequately informed by the MUHC of the evolution of his health condition, in order to know the risks and consequences associated with his treatment, as well as of any “accident” that occurred during the treatment he was receiving and of the measures necessary to counteract the consequences that could result from it. (my emphasis)

Judge Davignon concluded:

[85] Although Jonathan was the patient at the MUHC and therefore there is no legal contractual relationship between his parents and the hospital, it is now recognized that the grief and pain experienced by the relatives of a person who dies accidentally or through the fault of another person is entitled to compensation for their loss, particularly that resulting from the loss of a child’s moral and emotional support. In law, reference is usually made to the Latin expression solatium doloris to express this loss.

One more thing. Judge Davignon began his 25-page ruling with an interesting missive, aimed I would gather at the legal community.

[1] In the usual words of welcome and explanation to the parties, the Tribunal always indicates that just because their case is before the Small Claims Division of the Court does not mean that it is of lesser value or importance.

[2] This case reveals the depth and complexity of the issues before this division and the role of the presiding judge in the proceedings where unrepresented litigants exercise their rights, often for the first and only time. It sadly deals with a subject to which justice alone cannot provide all the answers and cure the pain that afflicts Ms Fontaine and Mr Duval. The parties and all the witnesses heard understood this. So did the Tribunal. (my emphasis).