In Campbell v. Roberts, 12 the plaintiff attended hospital on multiple occasions feeling very unwell with cough, head and body aches and (at least during the first visit) low grade fever. Imaging revealed a mass in his lung that could have been pneumonia. He was provided with antibiotics. He returned to hospital with the additional symptoms of visual impairment and severe fatigue. Imaging showed three lung lesions with spiculated borders (a hallmark of malignant tumours) and two brain lesions. He was a smoker. His physicians suspected cancer. Further investigations and treatment were directed towards a cancer diagnosis. A follow up CT scan showed that the lung lesions had shrunk significantly, a finding that is unusual for cancer. The possibility of infection was raised but Mr. Campbell’s physicians continued to focus on the cancer investigation. A bronchoscopy did not reveal cancerous cells. This did not negate a cancer diagnosis but was additional information for the physicians to consider. A biopsy was also negative for malignancy. Mr. Campbell’s condition and in particular his cognition continued to deteriorate. It was not until after radiation treatment that an open lung biopsy provided conclusive evidence that Mr. Campbell did not have lung cancer. Consultations with infectious disease and neurology as well as further investigation led to a craniotomy that confirmed Mr. Campbell had two brain abscesses, not cancer. The diagnoses of abscesses rather than metastatic cancer explained his presentation such as the lung lesions reducing significantly in size in response to antibiotics. The abscesses were drained and antibiotics commenced but by that time Mr. Campbell had already sustained permanent brain damage. The defendant physicians’ tunnel vision, failure to properly consider all aspects of his medical history and failure to investigate alternative diagnoses in the face of new findings fell below the standard of care. They were held liable for Mr. Campbell’s brain injury related damages.
The risk of an analysis corrupted by knowledge of an unfortunate outcome, two schools of thought and clinical judgment make medical negligence claims complex and often murky. Thorough and detailed analysis is crucial for each component of the care provided, what information was available to whom and at what time, available testing or treatment options and the known risks that should have been considered by the parties. Proving that the defendant had tunnel vision that resulted in him or her ignoring particular symptoms or that the defendant neglected to gather easily available information will assist in proving that the exercise of clinical judgement was not simply an error of judgment but, in fact, a negligent error. If, on the other hand, the plaintiff has multiple experts who differ on the appropriate diagnosis or appropriate treatment, this will lend weight to the defence argument that there were multiple schools of thought, all of which meet the standard of care, and the defendant was simply using their clinical judgment in treating the plaintiff, even if the approach they took was wrong in retrospect.
Causation in Acquired Brain Injury Cases
Causation continues to be a large hurdle in all medical malpractice actions. Proving that a mistaken diagnosis fell below the standard of care is insufficient. Proving a brain injury in addition to a mistaken diagnosis is insufficient. The plaintiff must prove how the brain injury could have been avoided had appropriate steps been taken.
In Jackson v. Kelowna General Hospital13, the plaintiff was admitted to hospital with head injuries sustained in a bar fight. He had surgery for a broken jaw and was provided with morphine to control his pain. The “patient controlled analgesia” system allowed the plaintiff to self-administer morphine, up to a maximum dose, and the anesthesiologist’s order for the system included an order that the plaintiff’s vital signs be monitored every hour for two hours and then every four hours thereafter. The plaintiff was set up with this system in the post-anesthesia recovery room and discharged to the hospital ward where he was assessed at 9:45pm. A nurse was in the plaintiff’s room at 11:15pm to change his IV bag and another nurse visually checked on him at midnight but no vital signs monitoring was conducted at any time after 9:45pm. This failure to monitor his vital signs breached the standard of care. At 12:10am, the plaintiff suffered respiratory distress. He was found unresponsive and required resuscitation. He survived but suffered a permanent brain injury. The plaintiff alleged that, had the nurses monitored his vital signs as required, his brain injury would have been avoided. The trial judge found that this had not been proven. There was no evidence to suggest that the vital signs would have demonstrated a problem that would have required the defendants to intervene. The plaintiff asked the court to infer that if his vital signs had been taken as required by the standard of care, this would have revealed that he would suffer respiratory distress if appropriate action was not taken to prevent it. The lack of information as to what the vital signs would have shown was due to the negligence of the nurses. Unfortunately for the plaintiff, that was not enough to allow the court to infer causation.
There must be some evidence that the negligence caused or could have caused the injury at issue before the court can justify drawing an inference.
In this case, there was no expert evidence as to what the vital signs monitoring would have detected or how it could have assisted in the prevention of injury. The respiratory distress was caused either by oversedation with morphine or by the plaintiff vomiting and aspirating the vomit. Either event could occur quickly and unpredictably. The informal observations revealed no cause for concern. Without evidence that vital signs monitoring would have revealed a decline in the patient’s condition and prompted a medical response, the trial judge was unable to find causation.
