Property law in Ontario has roots that go back all the way to Henry II in the twelfth century, when the common law system was born. Judges over the ages have had to determine complex issues involving all sorts of property in different circumstances, including many things we don’t traditionally think of as “property” such as family pets and dead bodies. In spite of this extensive history, changing social dynamics led by technological advancements are presenting the public with significant property law questions that have never been tested in a courtroom.
One of those questions was recently addressed for the first time in Ontario.
In Piljak Estate v. Abraham, Master Ronald Dash had to determine who owned a tissue sample that had previously been removed from Ms. Piljak for diagnostic testing.
This was an action involving alleged medical negligence. Dr. Abraham had performed a colonoscopy on Ms. Piljak in 2008. In 2009 Ms. Piljak was diagnosed with colorectal cancer, which she died from in 2011. Her estate and her family commenced an action against Dr. Abraham and other medical professionals involved in the 2008 colonoscopy. The plaintiffs allege that Dr. Abraham ought to have detected the cancer in 2008. Dr. Abraham defended the action by stating he met the requisite standard of care and also that Ms. Piljak’s unrelated medical conditions both before and after his colonoscopy caused her death.
The defendants learned that there was a tissue sample of Ms. Piljak’s liver stored at Sunnybrook Hospital in Toronto. They brought a motion seeking a court order for Sunnybrook to provide them with the sample for testing. They sought to establish that Ms. Piljak was genetically predisposed to a particular type of colorectal cancer that can develop very quickly and is difficult to detect.
The Court then had an interesting problem to resolve: who “owned” Ms. Piljak’s liver sample? Did the hospital (which had taken the diagnostic sample and kept it as part of its record) own it outright? Did Ms. Piljak retain any interest in the property? Was the sample limited to the use for which it was initially removed? If Ms. Piljak always “owned” the sample taken from her body or retained any rights, did they transfer to her estate?
Master Dash noted the issue was novel in Canada and ultimately was persuaded by the defendants after reading an article that was published by the Canadian Medical Association Journal about rights to access excised tissue samples. Once tissue has been excised from the human body, the medical facility obtains possession and ownership of it, and if testing is performed the facility is required to retain the tissue sample as part of the diagnostic record for at least twenty years. Master Dash adopts the reasoning in the article and notes that U.S. authorities have also adopted the approach. At best, a patient is to be provided “reasonable access” to the sample, but it is owned by the medical facility.
Critics may say that a medical centre’s use of the property ought to have explicitly been limited to the scope related to the purpose for obtaining the sample in the first place, however that issue was not squarely before the Master. A more extensive analysis is anticipated if a medical centre were to do something objectionable with a tissue sample well beyond the anticipated purpose for obtaining the sample in the first place.
Although this decision could be appealed and is not binding on any level of court, it offers some guidance on what has been a cloudy issue for hospitals and other medical centres for quite some time.
Nicholson Gluckstein Lawyers