Kate McInnes

This is the final installment of our series aimed at providing a detailed examination of the challenges and pitfalls in different areas of medical negligence lawsuits, and approaches to overcoming them. Each article has focused on specific injuries and highlighted the obstacles a plaintiff faces in bringing their case to a successful conclusion. Our next series, which will debut in the Winter 2024 edition of The Verdict, will focus on practical and evidentiary issues in medical malpractice.

This article concludes our current series by considering one of the most critical and costly aspects of any medical malpractice lawsuit: the client’s care plan. It will proceed by describing the principles of autonomy, choice, and independence that underpin all cost of future care analyses, as repeatedly reiterated by the Supreme Court of Canada; flagging proposals for care that are commonly found in defence submissions and the case law, which contravene these principles; and providing specific advice on how to develop and present a care plan successfully in mediation and at trial.

Few aspects of a medical malpractice lawsuit are as important to both counsel and client as the life care plan. For plaintiff’s counsel, the care plan is the evidentiary basis for the assessment of costs of future care. When properly presented, “the life care plan can be a powerful tool of persuasion, whether persuading the defence to settle the case or persuading [the court] to award a fair amount of damages.”¹ For the critically injured client and their family, who are often facing a scary and uncertain future, the care plan serves as a source of reassurance and empowerment, particularly when it is crafted with their input².

The law in Canada concerning care planning in medical negligence cases is clear and well-established. The ultimate goal of an assessment of future care costs is to ensure that the injured plaintiff is adequately cared for. Expenses that further this goal are based on what a reasonable person with ample means would incur.³

With respect to the plaintiff’s living arrangement — the focal point of every care plan, which inherently impacts the provision of all other aspects of care — courts across this country have repeatedly found that it is “difficult to conceive of any reasonably-minded person of ample means who would not be ready to incur the expense of home care.”⁴ Plaintiffs’ counsel need not rely solely on this case law or common sense to support the idea that any reasonable person would choose this model of care over, say, a group home: a recent survey demonstrated that 91% of all Canadians, and nearly 100% of Canadians aged 65 years or older, report that they plan on living independently for as long as possible.⁵

This is the ninth article in our series aimed at providing a detailed examination of the challenges and pitfalls in different areas of medical negligence lawsuits, and approaches to overcoming them. Each article will focus on specific injuries and highlight the obstacles a plaintiff faces in bringing their case to a successful conclusion. By comparing cases involving similar injuries, we hope to illustrate how the plaintiff succeeded, and, when they did not, provide strategies that may have been available to improve their chance of success.

This article will focus on cases where miscommunications have caused or contributed to a plaintiff’s injury. The importance of communication in facilitating Canada’s collaborative, team-based model of healthcare delivery, and the role that complete and accurate communication of patient information plays in defining the standard of care for physicians and nurses, will be explained using a recent obstetrical malpractice judgment of the B.C. Supreme Court as a case study.

Introduction

Healthcare in Canada is delivered through a collaborative, team-based model of care, in which different medical professionals, possessing diverse experience and expertise, respond to patient needs in a synergetic fashion. These teams may operate according to established templates, in the ordinary course of primary healthcare delivery (for example, the informal, two-person teams comprising of family physicians who prescribe medications and pharmacists who fill them), or they may be complex and ad hoc (for example, labour and delivery teams, which often include professionals specializing in obstetrics, pediatrics, nursing, family medicine, neonatology, and anaesthesiology). Under such a collaborative care model, the delivery of safe and effective healthcare is dependent on each team member competently fulfilling their individual duties. As one Manitoba court put it, “the health care system in place in Canada mandates that these professionals work as a team with each individual having a role in the provision of care to a [patient]. Each person must carry out their role within their appropriate standard of care and each of these professionals is entitled to rely upon (and must rely upon) the others to fulfill their respective individual responsibilities.”¹

A duty that is common to all healthcare professionals working collaboratively, which has been affirmed by courts across Canada, is the duty to communicate all relevant patient information in an accurate and complete manner. The failure to do so can have cascading impacts on the performance of the team as a whole, leading to catastrophic outcomes for patients: one review of obstetric malpractice claims conducted by the American College of Obstetrics and Gynecology, for instance, found that 31% of adverse events were attributable to communication problems.²

Although communication errors may not be as obviously disastrous as, say, surgical errors, they can have devastating impacts on patients and their families. In an era where interprofessional communications are increasingly transmitted across new technologies and mediums,³ and in which medical professionals are increasingly reliant on team-based care given staffing shortages during Canada’s ongoing “health human resources crisis,”⁴ the potential impact of miscommunication among medical professionals involved in a patient’s care must be front-of-mind for plaintiff’s counsel when analyzing and arguing their case.