Acquired Brain Injuries

In Briante, discussed above, the nurse was found to have fallen below the standard of care by failing to obtain and pass along to the emergency room physician collateral information from Mr. Briante’s family. The emergency room physician testified that, if she was of the view that there was a reasonable possibility that Mr. Briante was experiencing delusions, she would have asked for a psychiatric consultation. This is where the plaintiff’s case fell apart. Dr. Pawliuk, the psychiatrist who was on-call for Royal Jubilee Hospital on the night Mr. Briante presented, testified that if he had been consulted, he would not have admitted Mr. Briante to hospital as he did not meet the test for involuntary commitment. Antipsychotic medications were an option but Dr. Pawliuk opined that up to 75% of psychotic patients do not take these medications as prescribed and Mr. Briante was clear that he did not want to take any medications. Even if it was accepted that Mr. Briante would have taken these medications, the evidence was that the first antipsychotic medication trialed had only a 30-60% chance of success. Another expert opined that an antipsychotic medication needs to be taken in a therapeutic dose for a minimum of three to four weeks before assessing whether it is having the desired effect. For Mr. Briante specifically, after his suicide attempt he was provided with antipsychotic medication and still continued to experience delusions for six weeks after the start of treatment. As a result, the plaintiff could not prove on the balance of probabilities that, even if Nurse Hooff had met the standard of care, Mr. Briante would have been admitted to hospital or effectively medicated such that his suicide attempt would have been avoided. The best that could be said was that it might have made a difference. The possibility of a different outcome cannot sustain a medical negligence claim unless it meets the balance of probabilities threshold and thus, the plaintiff’s claim failed.

As seen in Briante, in cases of delayed or missed diagnosis, the plaintiff must demonstrate to the court what ought to have happened if the standard of care had been met and how the appropriate step(s) would have avoided the injury. One way of doing this is to obtain evidence from the person or people who should have been consulted if the appropriate diagnosis was made (or considered). That said, the plaintiff in medical malpractice cases is not always at the mercy of the evidence of the medical practitioner who ought to have been consulted. The question of what that individual would have done is not determinative. An alternate route to causation is to prove that if a medical practitioner of ‘x’ credentials had been consulted, the standard of care required them to take certain steps. This requires expert evidence.¹⁴ In Briante the plaintiff’s claim against the nurse (in which the judge found a breach of the standard of care) ultimately failed because there was no evidence before the court that Dr. Pawliuk would have been required to admit Mr. Briante in order to meet his own standard of care. A defendant cannot escape liability by relying on the failure of others to meet the standard of care.

As can be seen from these cases, following the chain of events through to the end of care is vital to success. If the standard of care had been met, who would the patient have been referred to? Obtaining evidence from that medical practitioner is critical to the outcome of the case. The options for treatment and the likelihood of successful resolution of the problem from those treatments is important to explore. Was treatment a simple medication with guaranteed success or simply the best option available? Every patient will tell you that they would have wanted the possibility of life, brain function or mobility sustaining treatment over the outcome encountered by doing nothing. That is understandable. Unfortunately, it is not compensable, unless they can prove that treatment would (not could), more likely than not, have avoided the injury.

1. O’Connor v. Wambera, 2018 BCSC 886 at para 106.
2. [1992] 1 SCR 351 at 362-263.
3. 2017 BCCA 148
4. O’Connor v. Wambera, 2018 BCSC 886 at para 50
5. O’Connor v. Wambera, supra at para 112
6. O’Connor v. Wambera, supra at para 115
7. O’Connor v. Wambera, supra at para 116
8. 2018 BCSC 886
9. O’Connor v. Wambera, supra at para 147
10. 2001 ABQB 958 at para 261-262
11. O’Connor v. Wambera, supra at para 121-122
12. 2014 ONSC 5922
13. 2007 BCCA 129
14. Bolitho v. City and Hackney Health Authority, [1998] A.C. 232 (H.L.)