This is the third article in our series examining the challenges and pitfalls in different types of medical negligence lawsuits and approaches to overcoming them. Lindsay McGivern focuses on cases of acquired brain injury in adults caused by medical negligence. A common feature of these cases is that often the injury is the result of a missed diagnosis. The medical team had an opportunity to intervene and prevent the progression of the medical problem prior to the onset of permanent brain injury. Missed diagnoses are easy to see in retrospect. Succeeding in a medical malpractice claim for missed diagnosis, however, requires overcoming a series of obstacles.
Standard of Care
Hindsight
A common defence in missed diagnosis cases is that the plaintiff is viewing the case with the advantage of hindsight, having already seen the outcome. This, of course, is not a permissible way to assess the conduct of the defendant. The courts have long recognized that there is a danger in evaluating a medical negligence allegation based on hindsight; the knowledge of what the correct diagnosis was and the damage caused by the mistaken diagnosis “will colour all aspects of the assessment of medical care and can influence the fair and reasonable assessment of that care.”1
The law in this area is clear. As stated by Justice L’Heureux Dubé in Lapoint v. Hôpital Le Gardeur,
- “[C]ourts should be careful not to rely upon the perfect vision afforded by hindsight. In order to evaluate a particular exercise of judgment fairly, the doctor’s limited ability to foresee future events when determining a course of conduct must be borne in mind. Otherwise, the doctor will not be assessed according to the norms of the average doctor of reasonable ability in the same circumstances, but rather will be held accountable for mistakes that are apparent only after the fact.2
The key consideration in these cases is what information the physician had available to them at the time. Briante (Litigation Guardian of) v. Vancouver Island Health Authority (c.o.b. Royal Jubilee Hospital)3 is a good example of this analysis. The plaintiff in Briante was a young man who was taken to hospital by family members due to serious concerns about his mental health. Mr. Briante was assessed by a psychiatric nurse and by an emergency room physician. They elected not to call for a psychiatric consultation in hospital and instead discharged him home with a referral to a psychiatric outpatient service. Six days later Mr. Briante attempted to commit suicide by repeatedly stabbing himself in the neck. His family members, who were present, responded quickly and managed to save his life but blood loss caused a hypoxic brain injury. They sued the hospital alleging that Mr. Briante’s suicide attempt could have been avoided with proper medical care.
When Mr. Briante presented to hospital, he told the triage nurse that he was having a “nervous breakdown.” He was assessed by the psychiatric nurse, Nurse Hooff, before he saw a physician. The Psychiatric Emergency Services unit in Royal Jubilee Hospital is set up as a team approach. The psychiatric nurse is responsible for conducting initial assessments, collecting available collateral information and providing that information to the emergency physician along with a nursing diagnosis. The Psychiatric Emergency Services unit encourages family input and working with the families of patients. After the nursing assessment was completed, Mr. Briante was seen by an emergency room physician, Dr. Ross. Dr. Ross concluded that Mr. Briante was suffering from a situational crisis that was causing him emotional distress but that he was not delusional or psychotic. In retrospect, Mr. Briante was suffering from psychosis and at risk of harm to himself. The issue was whether the information available to the medical team at the time would have led a reasonable medical practitioner to that conclusion.
