Medical Malpractice Cases: Can I Refuse Treatment?

by | Jan 3, 2017 | Uncategorized

Medical Malpractice Cases: Can I Refuse Treatment?

Let us consider this simple scenario: a minivan driver rear-ended Lynn, 46, when she was driving home from her job. After a brief hospital stay, Lynn has chronic low back pain that does not respond to medication.

Her physician recommended an epidural steroid injection to reduce Lynn’s pain. Lynn wants to refuse medical treatment. Lynn would rather put up with the intense, stabbing pain than undergo the procedure, however she is unsure if she can or should do so. She is wondering:

  • Can patients refuse medical treatment?
  • Should someone refuse medical treatment?
  • What are the consequences of ignoring medical advice?

The legal precedent: Janiak v. Ippolito, [1985]
After an accident, a plaintiff has a legal duty to mitigate his/her losses and to take steps in order to ensure the limitation of damages suffered as a result of the defendant’s wrongful conduct.

In order to accomplish this, plaintiffs may have to submit to surgery or other treatment in order to alleviate his/her condition. If the plaintiff refuses to do so, a court can decide that any subsequent worsening of his or her condition is the plaintiff’s fault, and decide not to award them damages.

However, the Supreme Court of Canada case Janiak v. Ippolito has proven that in some cases full damages can still be awarded to a plaintiff who has declined recommended medical treatment. In short, Janiak, the plaintiff in this case, refused to submit to spinal surgery, because his medical doctor could not assure him of a 100% chance of success and recovery. The initial trial resulted in a finding that the refusal of treatment was unreasonable and that there were no damages due, as a result of this refusal. The plaintiff appealed and the Ontario Court of Appeal reversed the situation and came up with a damage figure that took into account that, as per the medical doctor’s estimation, recovery was only guaranteed by 70%. The Supreme Court of Canada agreed with the Court of Appeal’s approach to damages.

Patients have the right to refuse medical treatment
In Canada, patients who are 19 years of age or older and capable of decision making must give consent for health care providers to treat illnesses and injuries. Even if treatments have begun, patients can refuse or even withdraw consent for care.

To ensure that patient consent is free and informed, health care providers must inform patients about their conditions, treatment options, expected treatment outcomes and the risks of treatment or non-treatment. Patients must voluntarily consent to medical treatment and not feel pressured to accept or refuse the proposed treatments. Treatment providers must accept a patient’s decision, even if denying treatment could harm a patient’s health.

If patients have contagious diseases that could harm the public at large, health care providers do not need consent to medical treatment. Individuals with communicable diseases like tuberculosis, syphilis and AIDS/HIV may be placed in isolation so they do not infect others. They may be required to take medication, partake in treatment and undergo testing to monitor their conditions.

Refusing medical treatment has consequences
As our fictional plaintiff Lynn has experienced, refusing medical care can lead to poorer health. Not only has Lynn’s low back pain worsened, but she is still unable to work.

Even though Lynn had the right to refuse medical treatment, it was unwise for her to do so. Her health suffered and she cannot work. Since she failed to mitigate, she probably will not be able to recover her lost wages and future earnings.

There is nothing more important than your health and wellbeing. If you are seeking medical treatment after an accident or if you are considering refusing the course of treatment your healthcare provider recommends, contact the legal team at Mackesy Smye. Our experienced team of legal experts can guide you through the medical process so you receive medical care that suits you and brings you back to health.


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