During her assessment, the psychiatric nurse learned that Mr. Briante was in some kind of mental crisis, that his family considered him delusional and emotionally labile and that he appeared distressed. Mr. Briante informed her that he felt like he was “living in a conceptual art project” or a “movie script” but then explained this away by discussing how his residence was being used as an artistic workshop where stage sets and sculptures were being created. Mr. Briante mentioned feeling like he was being controlled or monitored by the cameras and infrared lights in the home but again provided an explanation that sounded rational to Nurse Hooff – he was referring to the burglar alarm system and that he understood it was a burglar alarm, but that’s just how if felt. Mr. Briante was well groomed, oriented and appropriately dressed. Nurse Hooff concluded that Mr. Briante was vulnerable but not a suicide risk, his main issue was substance abuse, he was not delusional or psychotic and he wanted to talk to someone because he felt he was having a “nervous breakdown”. She felt he did not meet the criteria for involuntary commitment. This was the information she passed along to Dr. Ross.
The Court of Appeal overturned this decision. Dr. Ross was not responsible for personally obtaining the collateral information. To require this would be to duplicate the nurse’s role for each and every patient, a waste of resources.
Nurse Hooff did not interview Mr. Briante’s family before her assessment of Mr. Briante but spoke with them after. The family’s concerns included the following facts: Mr. Briante told his sister that his roommate was going to have a Halloween party at which he (Mr. Briante) would be sacrificed. Mr. Briante informed his parents that he could not tell what was real or an illusion anymore and Mr. Briante told his family that people were trying to kill him. Mr. Briante’s family felt that he was delusional. The family was also aware that Mr. Briante did not want to remain in hospital or take medication, he was a lawyer skilled at manipulation and he was rehearsing his answers on the way to the hospital. There was some debate about how much of this information was communicated to Nurse Hooff but this was information Nurse Hooff was responsible for obtaining. None of this information was communicated to Dr. Ross. Nurse Hooff failed to inform Dr. Ross that Mr. Briante’s urine sample revealed he had simply filled the vial with water. She also failed to inform Dr. Ross that drug induced psychosis and bipolar mood disorder were on her differential diagnosis. Nurse Hooff was found to have fallen below the standard of care by failing to solicit collateral information from Mr. Briante’s family, failing to communicate her differential diagnosis to Dr. Ross and failing to inform to Dr. Ross of Mr. Briante’s urine sample results.
In contrast, Dr. Ross was found (by the Court of Appeal) to have met the standard of care based on the information that was provided to her. The trial judge previously found Dr. Ross had fallen below the standard of care by failing to personally obtain information from collateral sources, for failing to communicate diligently with Nurse Hooff (i.e. elicit information from Nurse Hooff), failing to undertake a differential diagnosis and failing to refer Mr. Briante for a psychiatric consultation before discharge. The Court of Appeal overturned this decision. Dr. Ross was not responsible for personally obtaining the collateral information. To require this would be to duplicate the nurse’s role for each and every patient, a waste of resources. Unless there was something to trigger Dr. Ross’ personal duty to obtain information (a ‘red flag’ suggesting that the information provided was incomplete or unclear), Dr. Ross was entitled to rely on the information provided to her. Dr. Ross’ failure to act differently because the relevant information was not provided to her did not fall below the standard of care. The case came down to what information was available to the defendant and an analysis of what should have been done with that information. Reliance on other information that became available in the future and an analysis based on hindsight were impermissible.
Two Schools of Thought and Clinical Judgment
A couple of common defences in medical malpractice cases are the “two schools of thought” and “clinical judgment” defences. The law is well established:
- “To support the finding of a breach of the required standard of care, a physician must be guilty of such failure that no other physician with ordinary skill acting with ordinary care would be guilty of. It is not enough for there to be a difference in the opinion of other similarly trained specialists regarding diagnosis. A reasonable physician may differ from another reasonable physician regarding diagnosis; see Belknap v. Meakes, [1989] B.C.J. No. 2187 (C.A.).”4
- “In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men . . . The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care.”5
- “In each diagnosis, the exercise of reasonable care, skill and judgment is required. A mistaken diagnosis may not be a negligent one. A mistaken diagnosis becomes a negligent one if the mistake results from a failure to exercise reasonable care, skill and judgment. It can result from the failure to collect necessary factual data through appropriate tests or a patient’s history. However, the obligation to have a further test done is a question of medical judgment to be exercised on the basis of information then available and the possible gain or additional information which might be learned from such a test.”6
- “The law is clear that an error in clinical judgment cannot be seen as negligence and when there are two separate schools of thought in respect of a medical issue adherence to one of those schools is not negligence, even if, in retrospect, adherence to that school of thought is erroneous. The case law is clear; one cannot prefer one school of thought over another on a retrospective analysis.”7
