How have courts interpreted the test for a claim of breach of fiduciary duty in a medical malpractice case?

British Columbia, Canada


The following excerpt is from Kemp v. Metzner, 2000 BCCA 462 (CanLII):

In concluding that the appellant's claim of breach of fiduciary duty could not be maintained on the facts pleaded, the trial judge referred to Arndt v. Smith, supra. In that case, the plaintiff sued her physician for the costs associated with rearing her daughter, who was congenitally injured by chickenpox the plaintiff had contracted during her pregnancy. The plaintiff contended that had her doctor properly advised her of the risk of injury to her fetus, she would have terminated the pregnancy and would have avoided the costs she was incurring in raising the child. The defendant argued that the plaintiff would not have terminated the pregnancy even if she had been fully advised, and therefore asserted that the loss claimed was not caused by the failure to advise of the risk. The trial judge dismissed the plaintiff's claim having concluded that the plaintiff would not, on a balance of probabilities, have aborted the pregnancy. This Court held that the trial judge had applied the wrong test and directed a new trial.

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