In O’Connor v. Wambera8 the plaintiff was a young woman who suffered a hemorrhagic stroke believed to be from the bleeding of an Arterio Venous Malformation (“AVM”). As a result of the stroke she had permanent brain damage and partial paralysis. The defendant was a neurologist who had seen the plaintiff a few years prior and failed to diagnose AVM. AVM is a rare condition that usually presents with recurrent headache, focal seizure, generalized seizure and/or neurological deficits. The plaintiff’s medical history included persistent joint pain, frequent colds, flus, respiratory tract infections, sore throats and chronic headaches. The year Dr. Wambera saw Ms. O’Connor, Ms. O’Connor was having almost daily headaches with more severe headaches with vertigo every three to four weeks. She had seen numerous doctors including a pediatrician and an otolaryngologist. Her GP had also ordered blood tests to investigate a connective tissue disease due to the complaints of headache and joint pain. Dr. Wambera met with the plaintiff once on December 13, 2007. She diagnosed Ms. O’Connor with migraine headaches and transformed migraines resulting in chronic headaches. She recommended medications but did not order any tests or imaging. She told the plaintiff to return if she wished to. On July 25, 2010 Ms. O’Connor had her hemorrhagic stroke.
Experts for the defendant opined that Dr. Wambera conducted a competent and thorough history, performed a thorough examination appropriate for the presenting complaint and arrived at a reasonable diagnosis based on the information available to her. Experts for the plaintiff opined that Dr. Wambera fell below the standard of care by failing to order follow up imaging. Dr. MacGregor, one of the plaintiff’s experts, acknowledged that Dr. Wambera’s approach was one of the reasonable approaches. She agreed that a diagnosis of migraine was reasonable but opined that the differential diagnosis ought to have included other conditions such as vasculitis and connective tissue disease. She did not think AVM needed to be on the differential diagnosis at the time the defendant assessed Ms. O’Connor, but opined that imaging (MRI with MRA/MRV study) was required for other possible diagnoses and that this imaging would have revealed the AVM. Dr. Cameron, the other expert for the plaintiff, was the only expert who would have included AVM in his differential diagnosis. He opined that imaging was required but felt that CT imaging was sufficient. He did not agree that MRI with MRA/MRV study was necessary. He did not think that possibility of vasculitis and connective tissue disease warranted imaging as he felt bloodwork would suffice to deal with this possibility. There were no guidelines requiring imaging in the circumstances. In addition, Dr. MacGregor acknowledged that there is no absolute rule that required imaging for a complaint of headache and that the decision to order imaging or not was based on clinical judgment.
The trial judge was “left, therefore, with…honestly and firmly held, but opposing views of physicians…as to the standard of care expected of the defendant.”9 He found that the opinions of the defence experts represented one accepted school of thought as to the expected standard of care with respect to the differential diagnosis and follow up. As a result, Dr. Wambera was found to have met the standard of care.
The court also acknowledged the risk of analyzing the case with the advantage of hindsight and discussed the need to focus on the information available to Dr. Wambera at the time of her assessment. The trial judge found that at least some of Dr. MacGregor’s opinions suffered from an unwitting influence derived from a retrospective analysis of what Dr. Wambera could have done in the context of Ms. O’Connor eventually having suffered a hemorrhage.
The good news for plaintiffs is that the mere fact that a defendant has an expert opining they met the standard of care does not automatically mean they will succeed based on a “two schools of thought” defence. This was articulated by the Alberta Court of Appeal in Rogers v. Grympa:
- “When a trial judge is faced with two sets of very qualified experts testifying to the presence of negligence, it is not acceptable to declare a tie and the tie goes to the doctor. The medical community could simply produce experts to testify conduct was appropriate and therefore dictate who would and who would not be negligent. On the contrary, it is the duty of a trial judge to weigh the opinions of the experts who testify and to select the theories which in his or her view are most consistent with the evidence and the requisite burden of proof.
- …I am not obliged to blindly reject a finding of negligence simply because experts appear on both sides of the issue.”10
Similarly, with respect to clinical judgment, this defence is not available in every case of alleged medical negligence. A physician must thoroughly investigate the plaintiff’s condition, properly inform him/herself about the condition, avail him/herself of the scientific means and facilities to obtain the best factual data to determine how to proceed, accurately obtain the patient’s history, perform a proper examination, consult appropriate specialists and perform the indicated tests. If the physician does not take these steps, then the net result is negligence and not an excusable error
in judgment.11
