Might Max have a cause of action as against Dr. Riviera? If it, so on what basis?

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Question:

Might Max have a cause of action as against Dr. Riviera? If it, so on what basis? How might Dr. Riviera defend himself?

Max is a professional hockey player in the final year of his employment contract with the Montreal Canadiens. Late in the season Max and his teammates are facing the Boston Bruins when Max receives a hard body check by Boston Bruin defenseman Chara.

Max suffers a significant concussion and other injuries which result in him missing the remainder of the season.

During the off season the medical staff of the Montreal Canadiens review Max’s progress and determine he has significant risk of permanent injury should he recommence his hockey career at this time. Based on the above information, the Montreal Canadiens decide not to offer Max a new contract for the upcoming season or beyond.

Max, feeling that the medical staff made a mistake, decides to consult with his own physician and experts in his new home town of St. John’s, Newfoundland and Labrador.

Max is referred by his family doctor to a neurological expert specializing in concussion related injuries. Because this is a second opinion and relates to an injury occurring outside of the Province, the Department of Health will not pay for the check up and as such Max agrees to pay the neurologist, Dr. Nick Riviera, the sum of $5,000.00 to complete all necessary examinations to provide a second opinion.

Following the check up, Dr. Riviera drafts an opinion that Max is in perfect health and provides a copy to Max and, at Max’s request, sends one directly to the Montreal Canadiens. Based on this new medical opinion the Montreal Canadiens reverse their decision and offer Max a long term contract paying him $10 million dollars over seven seasons.

Armed with his new contract Max takes to the ice in the season opener against the Toronto Maple Leafs where early in the first period he is sent in on a breakaway. At the moment he shot the puck into the net he collapsed and had to be removed from the ice by the paramedics and medical staff on site.

It subsequently comes to light that Dr. Riviera, in an effort to maximize his personal gain on the $5,000.00 paid by Max failed to complete normal medical examinations which may have revealed the possibility of future clotting in the brain. If noted, this would have prevented his return to the ice until further testing was complete.

The stroke received by Max during his breakaway goal has cut short a promising career and resulted in long term permanent physical motor skills impairment. The lone positive for Max is the continuation of the $10 million dollars in payments the Montreal Canadiens will make to him over the next seven years.