In this case, if the family had decided to sue, assuming that the 4 elements needed to succeed in a negligence case were met, speculate on one or more possible affirmative defenses.

Additional responses may be valid.

An affirmative defense admits that all 4 elements required to prove negligence exist, but puts forth other factors that mitigate or excuse the negligence.

Note: This self study question was posed as an interesting (and fun) exercise to stimulate consideration of all the factors that contributed to what happened in the case study.

In Case O-4, as pure speculation by a non-lawyer, one possible mitigating factor that the defense might argue is as follows:

  • Operating a TS under new blood safety standard requirements is expensive and government funding is inadequate
  • Extending TM support to small satellite facilities is particularly onerous
  • More pressing priorities consume the funds, leaving too few resources to provide TM support to the dispensing laboratory

Such a defense attempts to shift responsibility to funding authorities, in Canada's case, the provincial governments. If successful (a hypothetical assumption), it suggests that responsibility also extends to the governments who make funding decisions.

In opposition to such an argument, a case could be put forward that there were alternatives open to the TS medical director, namely ceasing transfusion services at the satellite site because they could not be adequately supported.

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