ter Neuzen became infected by HIV as a result of her participation in Korn's artificial insemination program from 1981 to 1985. Korn had not warned her of risk of HIV infection. Prior to January 1985, there was no test available for detection of HIV in semen or blood in Canada, and medical literature did not mention AI as a mode of transmission of HIV before September 1985. Korn was not aware that HIV could be transmitted by AI until July 1985. Expert evidence established that Korn's AI practice, as well as recruitment and screening of donors was in keeping with general practices in Canada. Korn was found negligent at trial, but this was overturned on appeal.
- Is living up to the customs of a profession enough to eliminate liability in negligence?
- Can juries decide these types of cases without scientific information?
Sopinka, writing for the majority, found that the doctor adhered to all the standards of his profession of the day and he could not reasonably have known that there was a risk of HIV here. However, he states that simply living up to the standards is not generally enough to escape negligence – a person must still act reasonably in the circumstances. In such specific scientific cases as this one, living up to the custom is enough, as the judge/jury are not in a situation to evaluate the standard of the custom because they do not have enough relevant knowledge. They find here that Korn did both – he adhered to standards and acted as a reasonable doctor would have in his time. In finding whether or not the doctor had adhered to his reasonable standard of care, he says that expert advice was needed.
- In scientific cases, living up to the custom is sufficient to eliminate liability in negligence.
- Expert advice is needed to advise juries and judges to evaluate the "custom" standard of care in specialized cases such as those involving medical care.