I was interested to read recent news reports concerning a case decided in Canada. An Indian/Canadian man, Mr Kahlong was awarded CAD $5 million in a claim against a Hospital in Vancouver.

According to news reports, Mr Kahlong who was 41 years of age suffered from low back pain for which he was referred for a CT scan. The CT scan demonstrated some abnormalities and the radiologist asked Mr Kahlong to return for a follow up scan. Mr Kahlong failed to heed this advice believing for some reason that his pain would go away on its own. In actual fact Mr Kahlong was suffering from spinal tuberculosis which was a progressive condition, ultimately resulting in profound cognitive impairment and disability.

The British Columbian Supreme Court found the Hospital at which the radiologist was working to have been negligent. They found he should have, but did not, promptly provide a written report upon the initial abnormal CT scan. The Court decided that had such report been prepared (and presumably provided to the treating practitioner etc.) it would have lead to a chain of enquiry which would have resulted in diagnosis of Mr Kahlong’s condition.

The Court decided (understandably) that Mr Kahlong was also negligent by failing to follow the radiologist’s advice to return (known as contributory negligence).

The consequence of deciding there was contributory negligence is that the patient’s damages are reduced by the percentage by which his own negligence is decided to have contributed to his injury. In Mr Kahlong’s case, he was decided to be 30% at fault and so he lost 30% of his compensation.

I have to say that this seems from the news report, to have been a very generous decision from Mr Kahlong’s perspective. My expectation would be that if such a case was presented before our Courts, it would be far more likely the case would have failed entirely. I think it likely our Court would conclude that it was the patient’s negligence in failing to follow the radiologist’s advice that led to the non-diagnosis.

Alternatively, I would have expected a significantly greater percentage of negligence to be found on the part of the patient.