Waivers and Negligence: Defining the Patient-Physician Relationship by Refusal of Blood Transfusions

Abstract

This paper discusses a recent health law issue originating from British Columbia, Canada. In Hobbs v. Robertson, the health law issue in question is whether a waiver that bars physician liability for negligence is valid. This is an important question because any answer will have a significant effect on both health law and the patient-physician relationship dynamic. At present, there is no judgment on this case and the British Columbia Court of Appeals has, for the second time, remitted that action back to trial court. This inquiry addresses aspects of tort and contract law in the patient-physician relationship. To address this health law issue, three critical questions are analyzed. The first question is if a waiver can be valid between a patient and physician. The second is whether a waiver is valid only between a patient and a hospital or also with the physician. The final question asks if negligence may be included in a waiver. After analysis, three potential solutions are suggested and discussed with one being chosen as the most suitable for implementing.

Keywords: health law, tort law, contract law, negligence, Jehovah's Witness, blood transfusion, blood transfusions, hysterectomy, waiver, waivers

JEL Classification: I18, I28, K12, K13, K32