Duty of Care
Continuing Duty
In a number of cases in the United States courts have held that doctors have a continuing duty to disclose risks to patients and former patients.
Tresemer v Barke (California)
Doctor held liable for failing to recall a former patient to advise her of newly discovered dangers associated with the use of the IUD which he had inserted for her.
Many U.S. courts have imposed liability in similar circumstances - citing "Duty to recall" - but this is actually a continuing duty to disclose risks.
This duty has widespread implications in today's medical practice and can apply to prosthetic cardiac valves, joints etc.
The practical implications of recall are very significant. However manufacturers of cars and home appliances recall for dangers of less consequence.
The likelihood that Canadian doctors will be involved in cases like this has increased since the recent decision in:
Hollis v Dow Corning corp
Hollis v. Dow Corning Corp., [1995] 4 S.C.R. 634
This case involved the duty of a manufacturer of a silicon breast implant to disclose the risks of using the product. The Supreme Court held that the manufacturer's duty was an ongoing one. It was required that patients be warned not only at the time the device was sold and delivered but also of those dangers that became apparent subsequently. There was reference to the close parallel between the doctrine of informed consent and the manufacturers duty to warn.
