Legal News

This is part 6 of our 8-part series on the anatomy of a medical negligence claim within which we review the following topics:

• The Doctor-Patient Relationship and Duty of Care (Verdict Issue 163 – Winter 2019)
• Consent (Verdict Issue 164 – Spring 2020)
• Standard of Care (Verdict Issue 165 – Summer 2020)
• Defences to a Claim of a Breach of the Standard of Care (Verdict Issue 166 – Fall 2020)
• Causation – Basic Principles (Verdict Issue 167 – Winter 2020)
• Causation – Application: The Difficulties Associated with Applying the “But For” Test
• Expert Evidence
• Disclosure of Errors

In previous articles, we outlined the essential criteria in a medical negligence action including the requirements to prove a duty of care owed by the defendant to the patient, a breach of the standard of care on the part of the defendant and a causal link between the breach of the standard of care and the plaintiff’s injuries. The previous article in our 8 part series discussed the basic rules for establishing causation. In this article, we will demonstrate some examples of how the causation principles are applied in medical negligence cases.

THE PROBLEMS WITH NEGLIGENT OMISSIONS

A commonly arising issue in medical malpractice claims is the speculative analysis that must arise when the negligent act is, in fact, a failure to act. This issue can, for example, be the result of a failure to diagnose, a failure to react promptly to concerning symptoms, a failure to call for help, etc. In such circumstances, the causation question will be, had the defendant properly diagnosed, reacted, called for help, what would have occurred? Since they didn’t perform those acts, what would have happened is, to a certain extent, speculation. In this situation, the courts have adopted a two-part approach to causation. This two-part approach can be seen in the English case of Bolitho v City and Hackney Health Authority. [1]

In Bolitho, the patient was a young child who was in hospital with a respiratory problem. While in hospital he was witnessed having two respiratory incidents before a final catastrophic respiratory collapse that lead to cardiac arrest, brain damage and, ultimately, death. The physicians failed to attend when advised by the attending nurse of the initial respiratory incidents. The causation question became: what would have occurred if the physicians had attended when they should have? If the response would have been intubating the patient, the boy would have remained sufficiently oxygenated and would not have suffered his brain injury. To answer that question, the House of Lords asked two questions. The first question to ask is what the physician in question would have done. Dr. Horn was one of the physicians who should have attended. If Dr. Horn had attended earlier, would she have intubated the boy in light of his respiratory incidents? Her evidence at trial was that she would not have done so. This does not end the inquiry, however. The court must then address the next question: would the decision not to intubate have been negligent? Worded differently, the court must consider not only what the physician in question would have done but also what a reasonably competent medical practitioner in the same situation would have done. As stated by Lord Browne-Wilkinson, “A defendant cannot escape liability by saying that the damage would have occurred in any event because he would have committed some other breach of duty thereafter.”[2] The plaintiff can thus succeed on a causation analysis by proving either that the physician in question would have performed the required act to avoid the injury or even if that physician would not have done so, any reasonably competent medical practitioner in those circumstances would have.

This analytical framework was adopted and applied by the Court of Appeal in Briante v. Vancouver Island Health Authority.[3]  The significant point in that case was that the Court of Appeal applied the Bolitho analysis in circumstances which could be seen as a significant expansion of the rule.  In Bolitho, the issue was whether the defendant himself would have acted negligently had he responded to the call from the nurses.  In Briante, the issue was whether a third party physician, not a defendant, would have acted negligently.  The apparent extension of the Bolitho test may provide plaintiffs counsel with an avenue towards proving causation in circumstances where a “down the road” actor, critical to proving success, testifies that he\she would not have acted in such a way as to “rescue” the plaintiff from the consequences of the negligence of the defendant.  If the plaintiff can demonstrate that such a failure to “rescue” would have amounted to a breach of that player’s duty to the plaintiff, causation will still be proven. 

INTERVENING CAUSAL ACT VS. FAILURE TO SAVE

Thompson et al v Toorenburgh et al,[4] is not a medical malpractice case but does involve medical issues and it demonstrates another particular quirk of causation that can arise in the medical context. Thompson was a claim under the Families Compensation Act.[5] The parties were involved in a motor vehicle accident. Mrs. Thompson was a passenger in a car that collided with the defendant’s vehicle. She was treated in hospital for a small laceration and abrasion. Unfortunately, Mrs. Thompson, unbeknownst to anyone at the time, was also developing acute pulmonary edema from the accident. She was discharged from hospital and attended a party where she began feeling unwell and ended up being unable to move or speak. It was common ground that without appropriate and speedy medical treatment, the pulmonary edema caused by the accident would have killed Mrs. Thompson. Had she simply collapsed and died at the party, that would have been the end of the matter. The complicating factor in this case was that Mrs. Thompson was rushed to hospital where she received treatment. Sadly, the physicians at the hospital failed, for two hours following her readmission, to recognize that she was suffering from pulmonary edema and to administer proper treatment. The treatments they did provide were at best ineffective and at worst harmful. By the time pulmonary edema was diagnosed and proper treatments initiated, it was too late and Mrs. Thompson passed away.

The defendants in Thompson argued that the inappropriate medical treatment was an intervening act which broke the chain of causation, such that their negligence in causing the car accident did not cause Mrs. Thompson’s death. The trial judge found that the medical treatment initially administered to Mrs. Thompson upon her readmission to hospital was inappropriate, that the inappropriate treatment may have hastened her death but did not cause it, and that pulmonary edema, resulting from the accident, was the cause of Mrs. Thompson’s death. The trial judge and the BC Court of Appeal both distinguished between a failure to save Mrs. Thompson and an intervening act breaking the chain of causation. The physicians had failed to provide an actus interveniens that would have saved her life, but this was distinguishable from committing an actus interveniens that caused her death. As such, the Court of Appeal held that the chain of causation from accident to Mrs. Thompson’s death was uninterrupted.

THE USE OF INFERENCE IN THE CAUSATION ANALYSIS

It is undisputed that causation must be proved using a “but for” test. The plaintiff, after establishing a breach of the standard of care, must prove, on a balance of probabilities, that “but for” that breach, the plaintiff would have avoided his or her injuries or those injuries would have been reduced. A common issue in this analysis is the medical or scientific certainty that must be reached before a plaintiff can be found to have surmounted the balance of probabilities hurdle. The question becomes whether, taken together, the evidence is sufficient to allow an inference of causation or whether inferences do not meet the legal threshold.

Rehak v McLennan[6] was one of the medical malpractice cases in which inferences of causation were discussed. The plaintiff was involved in a bicycle accident. The radiologist reviewing imaging of his shoulder failed to diagnose a fracture. The evidence showed that the plaintiff’s original injury, from the bike accident, was significant and would have resulted in some, unknown, loss of function. The issue in the case was the extent to which his ongoing injuries were caused by the delay in undergoing surgery (due to the failure to diagnose the fracture in the first instance). This was an area of conflicting opinion amongst the experts. Had the radiologist properly diagnosed the fracture, the plaintiff would have undergone further assessment and treatment. This further assessment and treatment would have established the exact nature and extent of the plaintiff’s original injury. Unfortunately, the failure to diagnose led to both a delay in treatment and an inability to distinguish between the severity of the original fracture and the problems caused by surgical delay. Thus, it was the defendant’s negligence that hampered or defeated the plaintiff’s ability to prove that his loss was caused by the defendant. Keenan J. of the Ontario Court of Justice had the following to say on the issue:

“Applied to this case, the problem can be expressed this way. If the plaintiff is unable to tilt the scales because the conflicting opinions are of equal strength and one cannot be preferred over the other, is the plaintiff’s claim to fail? Applying the ordinary standard of burden of proof, the answer would be that the plaintiff must fail because to compensate the plaintiff would be to unfairly require the defendant to pay more than his proven responsibility. But where the reason for the plaintiff’s inability to provide the appropriate proof is the tortious act of the defendant, it would achieve an unjust result to deny the plaintiff recovery because of the uncertainty created by the defendant. In such a case I would consider that the ends of justice would not permit the tortious defendant to escape liability.”[7]

Keenan J. opted to resolve an uncertainty of proof to the benefit of the injured party not the tortfeasor. In such circumstances, he felt it appropriate, if necessary, to adopt a “robust and pragmatic” approach to causation and enable an inference to be drawn in support of the plaintiff’s claim.

Goodman v Viljoen[8] is a good example of the complexities of causation in a medical malpractice claim. In Goodman, the plaintiffs were twin boys born prematurely who both developed cerebral palsy. In mid-August, 1995, when the Goodmans’ mother was pregnant with them, she contracted a urinary infection. The defendant, Dr. Viljoen, was her obstetrician. The following week, Mrs. Goodman awoke to a rush of fluid. She called Dr. Viljoen’s office and was told that the leakage was related to her urinary infection and that she should continue to take antibiotics. Dr. Viljoen did not advise Mrs. Goodman to come to his office for an assessment, nor did he tell her to go to hospital immediately. Two days later, on August 18, 1995, Mrs. Goodman awoke feeling crampy. She went to see her family physician. The family physician, upon hearing her history over the week, told Mrs. Goodman to go immediately to the hospital. Upon arrival, the attending physician confirmed that Mrs. Goodman was in premature labour and her membranes had already ruptured. She was transferred to a tertiary care centre where her twins were born that day, premature at 29 weeks’ gestational age. The trial judge found that Dr. Viljoen breached the standard of care by not advising Mrs. Goodman to go to the hospital immediately when she reported fluid leakage. The issue on appeal was whether Dr. Viljoen’s breach caused the twins’ cerebral palsy. The complicating feature on the causation issue was the fact that the twins’ premature birth was not caused by Dr. Viljoen’s negligence.

Cerebral palsy is a movement disorder caused by abnormal brain development or damage to the developing brain. Cerebral palsy can arise from a multitude of causes, which may or may not be identifiable in individual cases. In this case, the experts agreed that the twins’ cerebral palsy could be attributed to periventricular leukomalacia. Periventricular leukomalacia, in simplistic terms, involves inadequate blood supply to the area of a baby’s brain known as the watershed zone. Of particular note, periventricular leukomalacia is the most common cause of brain injuries in premature infants and babies born before 34 weeks’ gestation are more prone than other babies to suffering periventricular leukomalacia. None of this was contentious in the Goodman case. What was contentious was whether the Goodman twins suffered periventricular leukomalacia as a result of Dr. Viljoen’s negligence or whether they were destined to suffer periventricular leukomalacia as a result of their premature birth which, as mentioned above, would have occurred regardless of the defendant’s care.

The plaintiff’s case was presented as follows: if Dr. Viljoen had met the standard of care, Mrs. Goodman would have been sent to hospital immediately after she reported a leakage of fluid on August 16. When she arrived in hospital the attending physician would have diagnosed premature labour and a rupture of membranes. At that time, she would have been given at least two doses of antenatal corticosteroids before she gave birth on August 18. As it happened, Mrs. Goodman did not arrive in hospital until August 18, and only received a single dose of antenatal corticosteroids, two or three hours before the twins were born. These findings of fact were accepted by the defence on appeal. The purpose of the antenatal corticosteroids is to replace the surge of hormones, lacking in premature babies, that full term babies experience at birth which accelerates the maturation process and allows babies to survive and thrive in the outside world. Antenatal corticosteroids administered before birth provide short term benefits to premature babies. In some situations, those short term benefits can create long term benefits by avoiding short term issues that can cause long term problems. The appeal focused on whether the plaintiffs had proven that “but for” the failure to receive a full course of antenatal corticosteroids, the twins would have avoided or materially reduced their injuries.

No expert on either side could find a study the showed a correlation between the administration of antenatal corticosteroids prior to birth and a reduction the premature baby’s risk of periventricular leukomalacia. There was no direct scientific evidence showing this link in the twins. The defendants argued that the plaintiff’s claim must fail in the absence of direct scientific proof of causation. The plaintiffs argued that their claim was established on a balance of probabilities standard. Two experts opined on the issue for the plaintiffs, a neonatologist and a specialist in maternal fetal medicine. Their opinions were that if Mrs. Goodman had received a full course of antenatal corticosteroids two days before the twins were both, they would not have suffered cerebral palsy, or their cerebral palsy would have been much less severe. These opinions were based on a “biological plausibility”. Looking at the known benefits from administration of antenatal corticosteroids, the short term benefits of reducing conditions known to cause cerebral palsy, data that was suggestive but did not reach the level of statistical significance, and the known maturation effect on tissue in other areas of the body, the plaintiffs argued that it could, and should, be inferred that antenatal corticosteroids would assist in the maturation of the arteries located in the watershed zone of the twins’ premature brains and reduce or eliminate the risk of periventricular leukomalacia and resulting cerebral palsy.

The Ontario Court of Appeal found that a “robust and pragmatic approach” to causation was permissible. They articulated what that approach means:

“The robust and pragmatic approach describes the manner in which evidence is to be evaluated, not some special burden of proof…  The robust and pragmatic approach takes into account the nature of the factual issues underlying the causation question and the kind of evidence that the parties are reasonably capable of producing on those issues.  The approach acknowledges that the causation inquiry is essentially a practical one based on the entirety of the evidence and made with a view to determining whether the plaintiff has established causation on the balance of probabilities and not to a scientific certainty.  Clearly, as counsel for the appellant urges, the robust and pragmatic approach does not countenance speculation or resort to common sense to determine issues that require expert knowledge.  To resort to speculation or the misuse of common sense is to misapply the robust and pragmatic approach.”[9]

The Court of Appeal accepted the trial judge’s finding of causation based on the “biological plausibility” theory of causation. Inferences of causation can be made in the appropriate circumstances. Scientific certainty is not required to prove causation. That said, there will always be issues regarding how much evidence is required to get over the balance of probabilities hurdle, even with the benefit of an inference.

CONCLUSION

At first glance, the appropriate legal test for causation appears straightforward: proof that on the balance of probabilities, the plaintiff’s injuries would have been reduced or eliminated “but for” the negligent act or omission of the defendant. In reality, this analysis is often complex and foggy. In the medical context, piecing out what would have occurred in any event as a result of the plaintiff’s underlying medical condition, establishing likelihoods within the bounds of current scientific and medical knowledge (where much is still unknown), and problems of omissions leading to failure to conduct the tests that would have answered the causation question are just some examples of how this analysis can be cumbersome and arduous. The challenges must be expected, require extensive effort and understanding of the medical issues, and may often be overwhelming to the case. In medical malpractice cases, it is not unusual for claims to fail despite a clear breach of the standard of care. Proving causation can simply be impossible in some cases.

[1] [1997] 3 WLR 1151 House of Lords

[2] Supra at p 5

[3] 2017 BCCA 148

[4] [1973] BCJ No 821

[5] R.S.B.C. 1960, c. 138

[6] [1992] OJ No 1202

[7] Supra at p 5

[8] 2012 ONCA 896

[9] Supra at para 76

This is the fifth article in our 8 part series published in the Verdict law journal on medical malpractice litigation.  In this article Lindsay McGivern and Paul McGivern discuss the complex issue of causation.  If the defendant did not meet the expected standard of care, did that breach actually cause the plaintiff’s injuries? The history of the causation analysis is discussed, as well at the modern law of causation.

In previous articles, we outlined two essential criteria in a medical negligence action: the need to establish that a defendant physician or nurse owes a duty of care to their patients, and that the defendant breached the standard of care.¹ Establishing these two components will not, however, lead to a successful lawsuit. Once the plaintiff has established a duty of care and a breach of the standard of care, it is still necessary to establish that the breach caused the injuries of which the plaintiff complains.

Medical negligence is a particularly complicated area of the law, often as a result of the need to establish causation. Motor vehicle accidents may have causation issues arising out of an argument about whether one particular injury was pre-existing or the result of the accident, but primary causation is relatively easy to establish: plaintiff was healthy, plaintiff was hit by a car, plaintiff is now injured. Medical negligence is rarely so clear cut. For example, there is the issue of why the plaintiff sought medical treatment in the first place. Are the injuries complained of something that would have arisen from that original medical issue regardless of the care or something caused by the care? There can also be issues related to risks of a procedure. This is something that is often raised in the standard of care portion of a claim but can also arise in the causation analysis: are the plaintiff’s injuries those from known risks that arose despite adequate medical care, or are they caused by the negligent act(s)? Sometimes a plaintiff can have injuries from both. There can be gray areas where it is difficult to draw a line between what resulted from unfortunate but anticipated medical problems, and the specific injuries resulting from negligent care. Additionally, there is the issue of the limits of existing medical knowledge. Medicine is constantly evolving.  Knowledge  is growing but there are limits to what we know about the human body and how it reacts to external stimuli. Proving the impact of different medical treatment can be extremely challenging.

BACKGROUND – THE HISTORY OF THE CAUSATION ANALYSIS

The causation issue has vexed the courts of the Commonwealth for decades. Difficulties of proof have lain at the heart of the debate. Usually, the physician or nurse providing care has specialized knowledge and experience which allows him/her to both recognize and understand the evidence as it relates to causation. The courts have gone back and forth over such issues as who should bear the burden to proof and what the burden should be.  For example, in McGhee v. National Coal Board ², the plaintiff sued his employer after he developed dermatitis on the job. The cause of his illness was coal dust on his skin. He was exposed to this dust both while working in a kiln  (the non-negligent exposure)  and as it stayed  on his skin for an extended period while he made his way home (the  negligent exposure). His employer was supposed to have supplied shower  facilities but did not do so.  In allowing the claim, Lord Wilberforce, in an oft cited judgment, stated:

“…there could be little doubt that the Appellant’s der­matitis resulted from a combination, or accumulation, of two causes: exposure to dust while working in hot conditions in the kiln and the subsequent omission to wash thoroughly before leaving the place of work; the second of these, but not the first, was, on the find­ings, attributable to the fault of the Respondents. The Appellant’s expert was unable to attribute the injury to the second of these causes for he could  not say that if the Appellant had been able to wash off the dust by showers he would not have contracted the disease. He could not do more than say that  the failure to provide showers materially increased the chance, or risk, that dermatitis might set in.

My Lords, I agree with the  judge below to the extent that  merely to show that  a breach  of duty increases the risk of harm is not, in abstracto, enough to enable the pursuer to succeed.

But  the  question remains whether a pursuer must necessarily fail if, after he has shown a breach of duty, involving an  increase of  risk  of  disease, he cannot positively prove that this increase of risk caused or materially contributed to the disease while his em­ployers cannot positively prove the contrary… it is a sound principle that where a person has, by breach of a duty of care, created a risk, and injury occurs within the area of that  risk, the loss should be borne by him  unless he shows that it had some other  cause.

This  judgment was widely (and usually unsuccessfully) cited as suggesting that so long as the plaintiff could prove a breach of the standard of care which increased the risk of injury, then the burden of proof shifted to the  defendant to disprove causation.

The  debate as to how to conduct the causation analysis  in medical negligence cases was addressed by the Supreme Court of Canada in  Snell v. Farrell ³ In that case, the plaintiff lost vi­sion in one eye after undergoing surgery to remove a cataract. Neither side was able to establish with certainty when or how the injury occurred.  The trial judge, relying on McGhee, found for the plaintiff on the basis that the defendant had created a risk of injury, the harm suffered fell within the ambit of the risk and the defendant had  not disproven causation.  The plaintiffs judgment was upheld on appeal, but for different reasons.   In the Supreme Court of Canada, the court ruled that  “Causation need not  be determined by scientific precision.”⁴ This statement, in itself, lines up  neatly with the existing legal principles: proof is required on a balance of probabilities, not with scientific certainty. The  judgment went  further, however, and stated:

The legal or ultimate burden remains with the plain­ tiff,  but in the absence of evidence to the contrary adduced by the defendant, an inference of causation may be drawn although positive or scientific proof of causation has  not  been  adduced.   If some evidence to the contrary is adduced by the defendant, the trial judge is entitled to take account of Lord Mansfield’s famous precept. This is, I believe, what Lord Bridge had in mind in Wilsher when he referred to a “robust and pragmatic approach to the … facts” (p. 569).⁵ [Emphasis added]

The question thus arose as to whether scientific evidence and proof of causation was required at all,  or whether trial  judges were permitted to make inferences of causation based on ordinary common sense.

In the ensuing two decades, trial judges and the BC Court of Appeal made it clear that the “robust and pragmatic” approach did not allow for a finding of causation in the absence of positive evidence led by the plaintiff.⁶

In addition, the BC Court of Appeal held that any evidence led by the defendant resulted in a bar against the trial judge making an inference of causation or finding causation based upon com­mon sense reasoning.⁷

Another complication in the causation analysis is the potential for a “material contribution” test. In Athey v Leonati,⁸ the Supreme Court of Canada outlined the rules around causation:

[14]         The  general, but not conclusive, test for causation is the “but for” test, which requires the plaintiff to show that the injury would not  have  occurred but for the negligence of the defendant…

[15]         The “but for” test is unworkable in some circumstances, so the courts have recognized that causation is estab­lished where the defendant’s negligence “materially contributed” to the occurrence of the injury…

[17]          It is not now necessary,  nor has it ever been,  for the plaintiff to establish that  the defendant’s negligence was the sole cause of the injury. There will frequently be a myriad of other background events which  were neces­sary preconditions to the  injury occurring. To  borrow an example from Professor Fleming (The Law of Torts (8th  ed. 1992) at p. 193), a “fire ignited in a wastepa­per basket  is … caused not only by the dropping of a lighted match, but also by the presence of combustible material and oxygen, a failure of the cleaner to empty the basket and so forth”. As long as a defendant  is part of the cause of an injury, the defendant is liable, even though his act alone was not enough to create the injury. There is no basis for a reduction of liability because of the existence of other preconditions: defendants remain liable for all injuries caused or contributed to by their negligence.

Questions subsequently arose as to whether a plaintiff, unable to prove causation on a “but for” analysis, could succeed in his or her lawsuit by establishing that the defendant “materially contributed” to the injury. Undoubtedly, the plaintiff does not need to prove that it was the defendant’s act alone (or inaction alone) that caused his or her injury. No plaintiff could ever succeed if that were the case. It is sufficient that the defendant’s care was one cause of the plaintiff’s indivisible injuries. The issue that arose was whether a plaintiff could succeed on a “material contribution” analysis of causation where it was impossible to prove causation using a “but for” test, but the defendant breached the standard of care and exposed the plaintiff to unreasonable risk of injury.⁹

The Supreme Court of Canada partially addressed this issue in Resurfice Corp. v. Hanke.¹⁰  McLachlin C.J., speaking for the court, clarified that the “material contribution” test is not available any time there is more than one potential cause of an injury. She also made it clear that in certain, special circumstances, an exception may be made to the basic “but for” test. A “material contribution” test may be available in situations where two criteria are met:

1.    It is impossible for the plaintiff to prove causation on a “but for” analysis and this impossibility is due to factors outside the plaintiff’s control.

2.    It is clear that the defendant had a duty of care, breached the standard of care and, as a result, exposed the plaintiff to an unreasonable risk of injury (as long as the plaintiff suffered that form of injury).¹¹

THE MODERN LAW OF CAUSATION – CLEMENTS V. CLEMENTS

Clements v Clements¹²  set out clearly the modern rules of causation. Clements was a motor vehicle accident case. The parties were a married couple involved in a motorcycle accident. At the time of the accident, the defendant husband was driving over the speed limit and the motorcycle was overloaded by 100lbs. A nail punctured one of the tires causing the motorcycle to wobble and fall. The plaintiff wife argued that the accident was caused by the defendant’s negligence in driving over the speed limit with an overloaded vehicle. The trial judge found it impossible to determine what speed and weight would have allowed the defendant to recover from the wobble caused by the punctured tire. The case was appealed all the way to the Supreme Court of Canada on the question of whether the “material contribution” test was available in the circumstances of the case. In holding that the trial judge should not have applied a “material contribution” analysis, the Court outlined the major principles of causation.

The first rule out of Clements is the explicit statement of the Court that the test for causation is the “but for” test.¹³  The plaintiff must prove, on the balance of probabilities, that but for the negligence of the defendant, the injury would have been avoided. The Court was clear that “but for” causation requires that the plaintiff prove that the defendant’s act was a necessary part to producing the injury.¹⁴

The Court also discussed the application of the “but for” test. Scientific evidence establishing the precise contribution the defendant’s negligence made to the injury is not required.¹⁵ Rather, judges are required to apply the “but for” test in a robust, common sense fashions.¹⁶ Where appropriate (in the face of evidence connecting a duty and breach of the standard of care to the plaintiff’s injury), a judge may infer causation on a balance of probabilities.¹⁷

It remains open to the defendant, however, to present evidence rebutting this inference and demonstrating that the injury likely would have happened in any event.¹⁸

Finally, the Court discussed the “material contribution” test.¹⁹ The Court unequivocally stated that, unlike the “but for” test, the “material contribution” test is not a test of factual causation at all. It is a method of recovery on a policy-driven basis where the plaintiff is permitted to recovery despite their inability to prove causation through no fault of his or her own. It is only to be very rarely applied (and has in fact never been applied by the Supreme Court of Canada) in instances where fairness and the basic principles of tort law require it. “Material contribution” is not about material contribution to the injury but rather material contribution to the risk of injury. In situations where the defendants owed a duty of care to the plaintiff, breached the standard of care and materially contributed to the risk of injury to the plaintiff, a plaintiff can recover only when it is impossible to prove “but for” causation. By “impossible”, the Court did not refer to scientific impossibility. If the current state of scientific knowledge does not enable the plaintiff to prove causation, the plaintiff’s claim will still fail. Impossibility leading to application of a “material contribution” test refers to the very specific scenario in which the following factors are met ²⁰

1.    The case involves multiple tortfeasors;

2.    Each tortfeasor has been proven to be negligent;

3.    “But for” the global negligence of the multiple tortfeasors, the plaintiff’s injury would have been avoided;

4.    It is impossible for the plaintiff to prove which of the tort- feasors was individually responsible for the plaintiff’s injury because they can all point the finger at each other.

The modern law is clearly less flexible than some plaintiff’s counsel may have previously hoped. The reality of medicine is that there will be frequent circumstances in which plaintiffs do not have the scientific or medical foundation to prove the cause of their injury. This is not the kind of impossibility that would lead to application of the “material contribution” test. Also, the new “material contribution” test may sound like an easier avenue of proving causation but can in fact insert additional challenges. It allows the defendants multiple opportunities to avoid a finding of negligence. Rather than simply needing to prove that “but for” the negligence of one defendant, the plaintiff would have avoided  the injury, the plaintiff  would be required to prove that each and every one of the defendants was negligent. If one defendant is found to have met the standard of care, “material  contribution” may not  be applicable since not all the potential causes of the injury were the result of negligence. While non-tortious factors contributing to an injury do not eliminate a finding of negligence, the principles underlying “material contribution” make it accessible only when negligent defendants would be able to escape liability  by pointing the finger at each other as the cause.  If one of the defendants, who may have been the sole cause of the injury,  is found to have met the  standard of  care,  this reasoning may no longer apply. In addition, other non-tortious causes (pre-existing conditions, normal complications of medical procedures and other, unrelated, medical issues) may be pointed to as likely sources of the injury, preventing the plaintiff from establishing causation on a balance of probabilities regardless of the test used.

LOSS OF CHANCE

One complication in these cases is particular to medicine: the uncertainty of treatment outcomes. Often in medicine,  physicians provide the best available treatment, which leads to recover  in some patients but cannot prevent death or ongoing disability for others.

In medical negligence cases, the plaintiff must be able to prove, on a balance of probabilities, that appropriate care would have avoided their injuries. It is not enough to establish that appropriate care would have given the plaintiff a real and serious chance of benefit.²¹

A frequent complaint in medical situations is that the medical team should have intervened earlier. It may be easy to show that earlier treatment would have improved the outcome or led to better odds of recovery. This is not enough. The plaintiff must establish that appropriate treatment would not only have increased the odds of success but would, on the balance or probabilities, have avoided or mitigated the injury. This issue often arises in delayed diagnosis of cancer cases. The earlier cancer is caught and treated, the better the chances of recovery. Yet , even if the plaintiff’s treat­ment was delayed by a year, it can be extremely difficult to prove that earlier treatment would have led to a different  outcome. That loss of chance of recovery is not compensable.

CONCLUSION

Although scientific proof or scientific certainty is not required to prove causation, the underlying condition of plaintiffs and the limits of current medical knowledge make  causation a significant hurdle in most medical negligence cases. In the majority of cases, adequate defence lawyers will be able to find some non-tortious sources of injury that they can point to as a likely cause of the plaintiff’s injuries.  In many situations, the state of current medical understanding is about  “increased risk” or “benefit of treatment” rather than certain cause and effect principles. Even with a “robust and common sense” approach to the evidence, proving that appropriate care would have  avoided the plaintiff’s injury can  be an overwhelming task.

This article  has  reviewed  the  basic principles of causation. In the next article in this series, we will discuss the application of these principles in medical negligence cases.

_____________________________________________________________________________

1.         Donaldson, Andrea, The Doctor-Patient Relationship and  Duty of Care – How Wide Should the Net be Cast’, the Verdict, Issue 163,Winter 2019; Osmond, Brenda, Standard of Care, the Verdict, Issue 165, Summer 2020.

2.          [1972]  3 All E.R. 1008 (H.L.)

3           [1990]  2 SCR 311

4.          Supra

5.         Supra

6.         Jackson v Kelowna General Hospital, (2007) 277 DLR (4th) 385; 66 BCLR (4th ) 138 at para 20; VAH  v Lynch, 2008 ABQB 448 at par a 320.

7.       Moore v Castlegar & District Hospital (1998), 49 BCLR (3d) 100.

8.      [1996] 3 SCR458

9.        BM v British Columbia (Attorney General), 2004 BCCA 402

10.      [2007] 1 SCR 333

11.       Supra at para 25.

12       2012 sec 32

1}       Supra at para 8.

14.      Supra at para 8.

15.      Supraatpara 9.

16.      Supra at para 9,

17.     Supra at para 10.

18.      Supra at para 11.

19.      Supra at para 13-45.

20.      Supra at para 46.

21.       Laferriere v Lawson, [1991] 1 SCR 541; St. Jean v Mercier [2002] 1  SCR 491

This is the fourth article in our 8 part series published in the Verdict law journal on medical malpractice litigation. Even if a plaintiff has obtained some expert evidence critical of the defendant’s care, this will not necessarily lead to a finding of fault. In this article, Andrea Donaldson reviews a number of common defenses to a claim of that the defendant breached the standard of care, namely that the defendant followed an approved practice, that he or she followed one of two accepted schools of thought, or that he or she exercised his or her clinical judgment. The analyses of the courts as to how these defenses apply help to illustrate why so few medical malpractice cases that go to court are decided in favor of the plaintiff.

PASSIVE VS. ACTIVE DEFENSES

As discussed in our previous articles, a plaintiff in a medical malpractice action must prove all necessary elements of a claim to succeed: the existence of a duty of care, that a breach of that duty occurred, and that the injury in question was caused by the defendant’s breach.

Commonly, a plaintiff will have adduced some evidence on each element of the claim, and a defendant will attempt to discredit the plaintiff’s case by introducing competing expert evidence and attacking the plaintiff’s claim by techniques such as cross- examination. ¹ If a plaintiff has adduced no evidence on one or more essential elements, the defendant can take steps to have the case dismissed (either by bringing a summary trial application or a non-suit motion at the conclusion of the plaintiff’s case) as the plaintiff has not made out a prima facie claim. These situations can be classified as “passive” defenses as they involve attacking the plaintiff’s claim by undermining one or more necessary elements. ²

So called “active” ³ defenses to a claim of a breach of the standard of care include:

a)  That the defendant followed an approved practice that is generally followed by members of the profession;
b)  That the defendant followed one of two accepted schools of thought; and
c)  That the defendant exercised his or her clinical judgment and therefore cannot be at fault.

Often, a defendant in a medical malpractice action will rely on one of these active defenses to defend his or her conduct. Each of these active defenses is discussed in more detail below.

APPROVED PRACTICE

The defense of approved practice involves an attempt to prove that the practice or procedure followed was generally approved of and used by members of the defendant’s profession at the time in question, and therefore ought not to be considered negligent. ⁴ For many years, the scope of the defense of approved practice was unclear, with some cases finding that it was conclusive evidence of lack of negligence ⁵ and others finding that it was only a rebuttable presumption. ⁶  The Supreme Court of Canada addressed the issue in ter Neuzen v. Korn. ⁷

Ter Neuzen involved a patient who had contracted HIV through infected sperm used in an artificial insemination (AI) program. The patient claimed that the defendant physician breached the standard of care by failing to be aware of the risk of HIV infection from AI and failing to screen donors for sexually transmitted diseases. The defendant led expert evidence that his practice was in keeping with the practice across Canada, and specifically that his process of recruiting and screening donors was in accordance with national standards. At the time in question, AI was not seriously considered by the general medical community to put anyone at risk of being infected with HIV.

The court confirmed the rule that “[i]t is generally accepted that when a doctor acts in accordance with a recognized and respectable practice of the profession, he or she will not be found to be negligent.” ⁸  This is because the medical profession as a whole is assumed to have adopted procedures which are in the best interests of patients and are not inherently negligent, and courts do not ordinarily have the expertise to tell professionals that they are not acting appropriately in their field.

The court, however, made room for certain situations where the standard practice itself may be found to be negligent. Writing for the court, Justice Sopinka stated that “where the standard practice is ‘fraught with obvious risks’ such that anyone is capable of finding it negligent, without the necessity of judging matters requiring diagnostic or clinical expertise” ⁹ or where “the practice does not conform  with basic care which is easily understood by the ordinary person who has no particular expertise in the practices of the profession,” ¹⁰  it is open to the court to find the practice, and therefore the defendant, negligent. These two conditions – that the practice is fraught with risk and that this can be easily understood by an ordinary person – rarely appear together and lead to a finding that an accepted practice is negligent. ¹¹

Anderson v. Chasney ¹² was cited in ter Neuzen as an example of where the standard practice of the profession was found to be negligent. In that case, a young boy died of suffocation from sponges left inside his nasopharynx following tonsilladenoidectomy surgery. The sponges used during the surgery did not have strings attached so that they could easily be retrieved, even though that product was available. The surgeon presented evidence at trial that it was not his practice, nor the practice of the hospital, to use sponges with strings or to have nurses count the sponges to ensure removal, and the case was dismissed. The Manitoba Court of Appeal reversed the trial decision, finding that the surgeon took an unnecessary risk by failing to use one of the two methods available.  In the court’s view, these precautions were within the understanding of the trier of fact and were sufficient to determine negligence. The court in ter Neuzen cited Anderson as an example of a case “where there are obvious existing alternatives which any reasonable person would utilize in order to avoid a risk” ¹³ and where the failure to adopt such measures could result in the finding of negligence notwithstanding  that the defendant followed the prevailing practice.

To rely on a defense of approved practice, the defendant must compare the treatment or conduct in question to the knowledge that ought to be reasonably possessed at the time, and the court must not judge the defendant too harshly with the benefit of hindsight. ¹⁴ Therefore, a procedure that was performed several years ago will not be viewed in light of medical advances or changes in practice that have occurred between the time of treatment and the time of trial, but a doctor who fails to keep up with advances may be found negligent. In McCormick v. Marcotte, ¹⁵ the plaintiff suffered a broken femur following a motor vehicle accident. He was taken to hospital and seen by the defendant physician. The defendant consulted an orthopedic surgeon who advised a procedure of skin traction followed by insertion of an intramedullary nail. The defendant was not qualified to perform the recommended surgery and performed another procedure that had since fallen into disfavour. The plaintiff suffered an injury which was a known risk of the obsolescent procedure performed, and the defendant was found negligent.

To rely on the approved practice defense, the onus is on the defendant to show that his or her practice conformed to that approved by the profession at the time. Expert evidence is essential to establish the defense, which is open to the plaintiff to rebut. ¹⁶

TWO SCHOOLS OF THOUGHT

The “two schools of thought” defense is closely related to the approved practice defense and provides a scope for disagreement and differing views or approaches among doctors. The rationale for the defense, as stated by the Supreme Court of Canada in Lapointe v. Hopital Le Gardeur, ¹⁷ is that courts do not have the expertise to choose between two schools of thought which are well-founded medically and seem equally reasonable. A situation involving two schools of thought, however, does not necessarily arise simply because a defendant adduces some evidence contradicting the plaintiff’s evidence on the standard of care. Expert evidentiary conflicts occur in almost every case, and just because the evidence is divided does not mean the plaintiff must fail. ¹⁸

The Maynard v. West Midlands Regional Health Authority ¹⁹ decision of the House of Lords is often cited for the proposition that “in the realm of diagnosis and treatment, negligence is not established by preferring one respectable body of professional opinion to another.” ²⁰  This is often argued by defendants to necessitate dismissal of an action where there is disagreement amongst the experts as to whether the defendant breached the standard of care.

Maynard was first considered in Canada in Brain v. Mador. ²¹ At trial, the defendant urologist was found negligent in performing a vasectomy on the plaintiff too soon after the plaintiff had an episode of epididymitis.  The defendant,  as well as three other highly qualified urologists, gave evidence at trial. Conflicting opinions were expressed by the expert witnesses as to whether a reasonably careful urologist should have operated so soon after the infection.

The defendant appealed on the basis that the trial judge erred in preferring one responsible body of professional opinion over another and relied on the Maynard decision. The Court of Appeal noted that Maynard goes on to state that “[f]ailure to exercise the ordinary skill of a doctor is necessary” ²² to establish that the defendant breached the standard of care, which is consistent with the test applied in Canada. The court in Brain noted that professional opinions expressed have an important bearing on the determination of whether the standard of care has been met, but it is for the trier of fact to weigh the conflicting testimony and ultimately  assess the weight to be given to the evidence.

The law on competing schools of thought was thoroughly dis- cussed by the Ontario Superior Court in Crawford v. Penney. ²³ The case involved a claim for injuries sustained by the plaintiff during her birth. The pregnancy of the plaintiff’s mother, Ms. Crawford, had been managed by Dr. Penney. During the pregnancy, Ms. Crawford experienced rapid weight gain, elevated blood pressure, and she was noted to have protein in her urine. Dr. Penney also managed Ms. Crawford’s labour and delivery, which was induced with oxytocin. After the baby’s head was delivered at 9:55 pm, shoulder dystocia was encountered. Birth did not occur until 10:10 pm, resulting in 15 minutes of oxygen deprivation to the baby. The trial judge found that the baby suffered hypoxic ischemic encephalopathy caused by shoulder dystocia due to excessive birth weight caused by untreated diabetes in pregnancy, and that the delay during delivery resulted in a period of acute near-total asphyxia.

The trial judge found that Dr. Penney’s overall management of the pregnancy involved a failure to properly  assess the risk factors associated with the pregnancy as well as an unrealistic view of his own ability to handle its management, including delivery. The judge concluded that he had breached the standard of care notwithstanding expert evidence led on behalf of Dr. Penney that he had acted in accordance with accepted practice.

The trial judge found that expert evidence is subject to the same process of being weighed and assessed against all the other evidence as evidence from lay witnesses is, and that expert evidence that the defendants acted in accordance with the standard of care does not necessitate dismissal of the action. The court’s function is to evaluate conflicting testimony, including expert testimony, and determine the facts he or she accepts by proof or inference. Expert evidence must be weighed in accordance with such findings of fact and in accordance with consideration of the reliability of such opinion evidence. The court found that there is no necessary dismissal of a medical negligence claim simply because honest and competent experts disagree over a doctor’s diagnosis and treatment. ²⁴

Unfortunately, there are a number of BC decisions that suggest that as long as the defendant adduces some evidence to the contrary, then they have established competing schools of thought and the plaintiff’s claim must fail. Brimacombe v. Mathews ²⁵ involved an infant who had suffered a hypoxic ischemic injury during labour and delivery. The trial judge found the defendant, Dr. Mathews, negligent for failing to apply traction to hasten the birth of the infant plaintiff during a breech vaginal delivery. The BC Court of Appeal did not agree, finding that the decision to apply traction or not represented two competing schools of thought among the plaintiff and defense experts, and ordered a new trial on this and other grounds.

Fairley v. Waterman ²⁶ involved the interpretation of fetal heart monitoring strips and what needed to be done in response. The primary issue in the case was whether there were earlier signs of compromise, or at least sufficient uncertainty about the baby’s condition, that required the defendant to intervene earlier than he did. The court found that the plaintiff had, at best, established that there are two schools of thought in respect of the interpretation of the fetal heart monitoring strips and the required action, and dismissed the plaintiff’s claim:

In circumstances where there are two competing and acceptable schools of thought the law is quite clear that adherence to either school (i.e. non-intervention versus intervention) is an acceptable standard of care, and a simple clinical misjudgment cannot amount to negligence. ²⁷

More recently, O’Connor v. Wambera ²⁸ was a case involving a teenage girl who suffered a hemorrhagic stroke due to an undiagnosed arterio venous malformation (“AVM”). She brought a claim against her pediatric neurologist, alleging that she was negligent in failing to order brain imaging which would have diagnosed the AVM. The court accepted that the opinions of the defendant’s experts, who opined that her differential diagnosis and follow up was appropriate, “represented one accepted school of thought as to the standard of care,” ²⁹ and therefore concluded that the defendant had met the requisite standard.

The case of Kita v. Braig ³⁰ offers a genuine example of a defendant adhering to one of two acceptable schools of thought. The plaintiff, Mr. Kita, suffered from chronic sinusitis, and when no conservative treatment was successful, he underwent an antrostomy – the making of an opening between the sinus and the nose. One of the known risks of antrostomy is a hemorrhage. If hemorrhage does occur, packing or cautery is performed. If these fail to control the hemorrhage, the next step is to perform surgery to stop the flow of blood to the site of the hemorrhage.

In Mr. Kita’s case, the antrostomy resulted in significant hemorrhaging which was not alleviated by packing or cautery. The defendant Dr. Braig, an otolaryngologist, recommended ligating the carotid artery to stop the flow of blood to the site of the hemorrhage, which Mr. Kita accepted. Dr. Braig ligated the carotid artery approximately 1.5 cm above the carotid bulb, leaving a stump of the artery. Following the procedure, Mr. Kita suffered a stroke.

At trial, the court accepted Mr. Kita’s contention that the most probable source of the embolus causing the stroke originated in the stump of his external carotid artery following the ligation. Mr. Kita’s expert neurosurgical evidence was that the carotid artery should have been ligated flush to the bulb, and had that been done, the stroke would not have occurred. Conversely, Dr. Braig adduced expert evidence supporting his method as that which was commonly practiced within the otolaryngology community.

The BC Supreme Court found that the conflicting medical evidence as to the appropriate standard of care originated partly from the different objectives of the specialties of neurosurgery and otolaryngology. The otolaryngology community performed the external carotid ligation procedure with the goal of restricting the supply of blood to the source of the hemorrhage.  The neurosurgical community performed the procedure to inhibit clot formation in a compromised vascular system. Both specialties were unaware of the standards of the other and, in particular, the practice of ligating flush to minimize risk of clot formation. The court dismissed the plaintiff’s claim, finding that the defendant acted reasonably and complied with a respectable school of thought as to how to best perform the procedure.

A court may find that divergent medical opinions amongst experts do not reflect opposing schools of thought, but different points on a continuum of a single school of thought or reasonable practice. ³¹ In many cases, the trial judge will prefer the evidence of one expert over the other in determining what the standard of care is, rather than accepting the evidence of both sides as reflective of equally reasonable but different standards of care.

CLINICAL JUDGMENT

The Supreme Court of Canada has repeatedly held that medical practitioners are not to be held liable for errors of clinical judgment that are distinguishable from professional fault. ³²

A poor outcome does not mean that any negligence occurred as a doctor is not expected to be a guarantor of success, and cannot be held liable for an exercise of clinical judgment even if his or her judgment is wrong.

In Brimacombe, discussed above, the BC Court of Appeal found that the trial judge’s finding of negligence against the defendant could not stand as the judge had equated the failure to apply traction to expedite delivery of the infant plaintiff with carelessness, whereas on appeal, the court found that this was more accurately described as an error of judgment that could not attract liability. Citing the Supreme Court of Canada in Wilson v. Swanson, ³³ the Court of Appeal noted that “an error in judgment has long been distinguished from an act of unskillfulness or carelessness… the honest and intelligent exercise of judgment has long been recognized as satisfying the professional obligation.” ³⁴

However, just because an error involved the exercise of judgment does not completely shield a doctor from liability. As stated by the House of Lords in Whitehouse v. Jordan ³⁵:

Merely to describe something as an error of judgment tells us nothing about whether it is negligent or not… it depends on the nature of the error. If it is one that would not have been made by a reasonably competent professional man professing to have the standard and type of skill that the defendant held himself as having, and acting with ordinary care, then it is negligent. If, on the other hand, it is an error that a man, acting with ordinary care, might have made, then it is not negligence. ³⁶

In most cases, the success of a clinical judgment defense hinges on whether or not the defendant obtained all necessary information, or availed him or herself of all necessary resources before exercising his or her judgment.

In Williams v. Bowler, ³⁷ the plaintiff, Ms. Williams, had long-standing headaches and abdominal pain, as well as psychological difficulties and prescription drug abuse. She attended the hospital on multiple occasions and with different complaints and requests for pain control medication, leading doctors to question whether she was drug seeking.

On March 16, 1993, Ms. Williams was seen by Dr. Bowler for headaches following a bar room brawl the previous week in which she hit her head on a cement pillar. Over the next few days, Ms. Williams made repeated visits to the hospital emergency department with more severe headaches associated with other symptoms, including nausea, vomiting, blurry vision, and a “wild looking” presentation atypical of her usual neatly groomed appearance. On March 22, she was admitted for treatment of migraine and dehydration. A lumbar puncture three days later revealed the presence of red blood cells which could be due to viral meningitis, self-limiting subarachnoid hemorrhage, or a 30% chance of a life threatening condition such as a leaking or ruptured aneurysm. On March 31, she was discharged from hospital with a diagnosis of viral meningitis and subarachnoid hemorrhage due to head injury in the bar brawl. On April 19, she suffered a rupture of brain aneurysm, leading to permanent brain injury.

The issue before the court was whether it was a breach of the standard of care for Dr. Bowler to have failed to include leaking or ruptured aneurysm in his differential diagnosis and make an urgent referral to a neurologist. Had this occurred, appropriate investigation would have revealed the aneurysm and it would have been surgically treated in time to prevent the rupture and brain injury.

The defense asserted that Ms. Williams’ injury was the unfortunate result of the exercise of Dr. Bowler’s clinical judgment, and in the context of Ms. Williams’ complicated history, he exercised his clinical judgment reasonably with respect to the interpretation of the lumbar puncture results and could not be found negligent. The court did not agree, and concluded that in interpreting the lumbar puncture result, Dr. Bowler entered unchartered waters, and the standard of care required him to seek the input of a neurologist or neurosurgeon, and found that he was negligent for failing to do so.

Crawford, discussed above, involved an allegation that the defendant had a duty to refer Ms. Crawford to a specialist to manage her pregnancy in light of her cumulative risk factors. The trial judge agreed that the duty to refer involves a matter of judgment, but that does not mean that a court cannot examine the grounds upon which the judgment is exercised:

The proper exercise of judgment by a physician is one that is made after his/her weighing, assessing and evaluating such information as may be available. What “may” be available includes the results of tests or consultations that should have been carried out. In other words, the information upon which a judgment or decision is reached must be as complete  as is reasonably available and possible in the circumstances. ³⁸

Negligence may be found where a doctor, exercising his or her clinical judgment, has failed to obtain all clinically significant information via tests and examinations. In Wade v. Nayernouri, ³⁹ a patient presented to the emergency department with severe headache, nausea, dizziness, numbness, and photophobia, and was diagnosed by the defendant physician as suffering from migraine headaches. The patient was, in fact, in the early stages of subarachnoid hemorrhage and died several days later. The court found that the erroneous diagnosis alone did not determine the defendant’s liability, but found that the defendant was negligent for failing to make use of all diagnostic resources, including refer- ring the patient to a specialist, before coming to his conclusion and discharging the patient.

CONCLUSION

In this article, we examined a number of defenses open to medical professionals when facing a negligence claim. These defenses show that even though a plaintiff has obtained expert evidence critical of the defendant’s care, this will not necessarily result in a finding of fault. The analyses of the courts as to how these defenses apply to a physician’s conduct help to illustrate why so few medical malpractice cases that go to court are decided in favor of the plaintiff. The statistics from the Canadian Medical Protective Association (CMPA) are telling in this regard.

The latest statistics indicate that out of the total number of legal cases resolved by the CMPA in 2018, only 1% resulted in a legal judgment in favour of the plaintiff. ⁴⁰

Adherence to an approved  practice is prima facie evidence that the defendant met the standard of care, but it is still possible for the court to find that this approved practice itself is fraught with obvious risk and therefore find that both the practice and the defendant are negligent. As discussed, this involves the court finding that the standard of practice is so unsafe that a layperson would be capable of finding negligence. These situations are exceedingly rare. Similarly, even if the plaintiff had adduced evidence that the defendant breached the standard of care, if the defendant can show that he or she adhered to one accepted school of thought supported by members of his or her profession, the plaintiff’s claim will not succeed. The defense of clinical judgment is difficult for a plaintiff to overcome, as much of a medical treatment involves the exercise of clinical judgment. To succeed against a clinical judgment defense, it will usually be necessary for a plaintiff to show that the defendant failed to take into consideration all necessary facts or resources.

In all cases, it is for the court to weigh all the evidence and determine the standard of care applicable in the circumstances of the particular case and then determine whether that standard was met or not. The applicable standard of care is determined by the trier of fact having regard for all of the evidence led on behalf of the plaintiff and the defendant.

_____________________________________________________________________________

1.       Gerald B. Robertson & Ellen I. Picard,  Legal Liability of Doctors and Hospitals in Canada, 5th ed (Toronto: Thomson Reuters, 2017) at 450 [Robertson].

2.       Ibid.

3.       Ibid.

4.       Ibid at 451.

5.       see McDaniel v. Vancouver General Hospital, [1934] 4 DLR 593.

6.       see Anderson v. Chasney, [1949] 4 DLR 71 (Man. CA) aff ’d [1950] 4 D.L.R. 233 (SCC) [Anderson].

7.       1995 CanLII 72 (SCC) [ter Neuzen].

8.       Ibid at para 38.

9.       Ter Neuzen, supra note 7 at para 41.

10.     Ibid at para 43.

11.     See Ivanitz v. Van Heerden, 1996 CanLII 2559 (BCSC) for an example of “one of those occasions where a lay person could pass judgment.” (para 35)

12.     Anderson, supra note 6.

13.     Ter Neuzen, supra note 7 at para 44.

14.     Ibid at para 34.

15.     [1972] SCR 18, 20 DLR (3d) 345.

16.     Robertson, supra note 1 at 459.

17.      [1992] 1 SCR 351 [Lapointe].

18.     Layden v. Cope, 1984 ABCA 306 at paras 2-3.

19.     [1984] 1 W.L.R. 635 (H.L.), [Maynard ].

20.     Ibid at 639.

21.     [1985] O.J. no. 119.

22.     Maynard, supra note 19 at 639.

23.     [2003] OJ No 89 (SCJ), aff ’d [2004] OJ No 3669 (Ont CA) [Crawford ].

24.     Ibid at para 248.

25.     2001 BCCA 206.

26.     2002 BCSC 10.

27.     Ibid at para 11.

28.     2018 BCSC 886.

29.     Ibid at para 120.

30.     1991 CanLII 442 (BCSC), aff ’d 1992 CanLII 1421 (BCCA).

31.     Stubbins v. Johnson, 1995 CanLII 598 (BCSC). In this case, the court found the divergent expert opinions represented “different points on a continuum of a single school of thought as to the level of caution and delay required in the circumstances.” (at para 82)

32.     Lapointe, supra note 17 at 720.

33.     Wilson v. Swanson, [1956] SCR 804

34.     Ibid.

35.     [1981] 1 All E.R. 267 (H.L.)

36.     Ibid at 281.

37.     2005 CanLII 27526 (ON SC).

38.     Crawford, supra note 22, at para 229.

39.     [1978] O.J. No. 413.

40.     2018 CMPA Annual Report, https://www.cmpa-acpm.ca/static-assets/pdf/about/annual-report/2018/19_com_2018_annualreport-e.pdf.

This is the third article in our eight part series published in the Verdict law journal on medical malpractice litigation.  The law does not expect health care professionals to provide the highest level of care, or to meet a gold standard in providing care.  They are expected to exercise the reasonable degree of care that would be expected of a normal, prudent practitioner.  In this article, Brenda Osmond reviews how the courts determine that standard, and whether or not there is room for common sense in assessing the standard of care.

THE STANDARD OF CARE

In a previous article we discussed the first essential criterion in a torts action¹ – the need to establish that a defendant physician owes a duty of care to their patients². There are a number of components of that duty including the duty to attend on their patient, and the duty to diagnose, refer and treat their patient. Once the plaintiff has established that the defendant owed them a duty of care, in order to determine negligence, it is necessary for the court to understand what standard of care is required to discharge these duties.  The standard of care is the second essential criterion that a plaintiff must prove to win a medical malpractice lawsuit.

At its heart, the standard of care in a medical malpractice action is no different than in any other torts action. The plaintiff must prove that the defendant breached the standard of care. This involves determining  what the standard of care is, and if the defendant breached that standard.  Courts have acknowledged that these legal principles are plain enough but it is not always easy to apply them to particular circumstances.³

WHAT IS THE STANDARD?

The concept of reasonableness pervades the court’s determination of the standard of care, as is evidenced by the following statement from Sylvester v. Crits et al.: ⁴

“… Every medical practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. He is bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same experience and standing, and if he holds himself out as a specialist, a higher degree of skill is required of him than of one who does not profess to be so qualified by special training and ability.”

In addition to highlighting that the standard is one of a “reasonable degree of care”, this statement also describes that the standard of care expected of a specialist is higher than of non-specialists. There are a number of ways that a physician’s practice may call for a higher standard of care.  The physician may have formal specialty training and recognition,  such as certification as a Fellow of the Royal College of Physicians and Surgeons. Another way a physician’s practice could require a higher standard of care is if they restrict their practice to a limited range of conditions – essentially specializing in a focused area of practice.⁵

Although the court in Sylvester was specifically dealing with physicians, the expected standard of the “degree of care and skill which could reasonably be expected of normal, prudent practitioner of the same experience and standing” extends to all health care professionals. For example, nurses have a duty to exercise their professional skill and knowledge in accordance with what is expected of a normal, prudent nurse in similar circumstances.⁶

Historically the location of a physician’s practice could be considered in the court’s determination of the expected standard of care. This was largely on the basis that physicians practicing in remote rural locations should not be held to the same standard as a physician working at larger urban centres. The effect of this locality rule was to lower the standard of care expected of rural physicians. There are a number of components to the standard of care care analysis – the limited resources that may be available in a remote community may be directly at play in case. In Lush v. Connell⁷ the court acknowledged that the issue to be considered was access to facilities and resources, not geographic location. Although limited access to resources will continue to be a reality for rural health care, the loyalty rule has been significantly diluted over the years. The promulgation of clinical practice protocols and guidelines intended to highlight best practices in diagnoses, and remote access to specialists for some consults, may have the effect of limiting some of the difference between practice of medicine in rural and urban settings.

HOW IS THE STANDARD OF CARE DETERMINED?

The standard of care is determined by the trier of fact, and is almost always based on expert opinions. There will inevitably be conflict amongst experts for opposing parties. This does not necessitate the dismissal of the case. In the face of opposing opinions, the court must weigh the conflicting testimony based on factors such as the experience of the expert, the factual foundation on which their opinion is based, and whether or not the expert is conducting themselves as an advocate for a party or is acting in conformity with their duty to assist the court.^8,9

There are a number of factors plaintiff’s counsel needs to consider when deciding what experts to retain to provide an opinion on the standard of care. Does the expert need to have training and experience similar to that of the defendant?  If not, is there some other way that they can be qualified to provide an opinion?

Modern health care is becoming more and more complex. Specialty practices in both medicine and nursing are evolving. Nurses are being recognized as independent health care providers, and as members of a health care team in certain settings. Nurses and physicians need to rely on each other to carry out their du- ties, as decisions made by one may rely on information provided by the other. This has implications for how the court considers what the standard of care is, and for what kind of expert can be qualified to opine on the standard of care.

In Pinch (Guardian ad litem of ) v. Morwood¹⁰  the plaintiff sought to have a family practice physician qualified to opine on the standard of care expected of a rural emergency room physician and nurse. In addition, the plaintiff sought to have an obstetrician and gynecologist qualified to opine on the standard of care of a general practitioner in a rural emergency department.  In addressing the defendant’s objection to these specific opinions, the court noted that the family physician had trained nurses in the setting of a rural emergency ward and knew the team effort that was required in these circumstances.  Similarly, the obstetrician had received referrals from the emergency ward and would have experienced many patients who had been assessed in the emergency room.  In accepting these physicians’ qualifications, the court stated that:

[30] … The real test of qualification is whether the expert’s knowledge, skill, or experience is sufficiently reliable to be of assistance to the trier of fact … That is a question of law to be determined in the context of each case. Generalized principles that a specialist cannot opine about the work of a general practitioner or that an opinion cannot be admissible if the expert has not practiced in the locale or in the exact circumstances of the defendant are not determinative of the analysis.

Professional standards or clinical guidelines can be of assistance to the court in determining what the standard of care is in a particular instance, but a breach of a standard or guideline does not necessarily lead to a finding of a breach of the standard of care. In order for standards or guidelines to be compelling, evidence must be led that the standards or guidelines have been adopted by the profession. Some guidelines will include “permissive” wording that will bolster a defendant’s claim that the guidelines should not be considered conclusive evidence of the standard. For example, in Kern v Forest ¹¹ the court noted that clinical guidelines for a chiropractor included a general disclaimer at the beginning of the publication that clearly describe the guidelines as a non-binding document:

“… These guidelines are not intended to replace a clinician’s clinical judgment or to establish the only appropriate approach for all patients. They are intended to be flexible. They are not standards of care. Adherence to them is voluntary. … alternative practices are possible and may be preferable under certain clinical conditions. …”

The court in Ediger ¹² also noted that a breach of a recommended professional guideline does not in and of itself constitute a failure to meet the applicable standard of care:

[59]            …  As … guidelines are practical tools to assist practitioners in the delivery of services; they are not a substitute for a determination, on all the evidence, of the applicable standard of care.

If plaintiff’s counsel intends to rely on standards or guidelines as evidence of the standard of care, it is critical to have a thorough understanding of not only the content of the standard or guideline, but also the role they play in the practice of a reasonably competent practitioner.

In determining the standard of care, specific features of the risk of the procedure or treatment in question must be considered, particularly the foreseeability of risk and the inherent degree of risk. In McArdle, Estate v. Cox¹³, the court described the effect as follows:

[27]          The degree of foreseeable risk involved in a procedure or treatment is not only an appropriate, but indeed an essential determinant of the appropriate standard of care. The standard of care is influenced by the foreseeable risk. As the degree of risk increases, so does the standard of care of the doctor. …

The concept that an increasing degree of risk necessitates a higher standard of care was further developed in Ediger, an obstetrical case.¹⁴  Here, the degree of risk associated with the mid-forceps delivery procedure was at the heart of the trial judge’s interpretation of the meaning of the immediate availability of access to a caesarean section. The Supreme Court of Canada upheld the trial judge’s finding that the standard of care required the defendant to take reasonable precautions that were responsive to the recognized risks of the procedure In this case the recognized risk was that of persisting fetal bradycardia leading to severe brain damage that could occur during an attempted mid-level forceps delivery. The standard of care had to be understood in light of that recognized risk, and needed to be responsive to that risk.¹⁵

IS THERE A ROLE FOR COMMON SENSE IN ESTABLISHING THE STANDARD OF CARE?

Is it always necessary for the plaintiff to provide expert opinion regarding the standard of care?  The Supreme Court of Canada has clarified that if a matter can be easily understood by a layperson with no expertise in the medical profession, and where the common practice itself is so “fraught with obvious risks” that the practice can be found to be negligent, it is open to the trier of fact to determine the applicable standard of care, even though it might not align with the standard practice within the profession.¹⁶ In describing what has come to be known as the “ter Neuzen exception” the Court summarized this principle:

[43] Thus, it is apparent that conformity with standard practice in a profession does not necessarily insulate a doctor from negligence where the standard practice itself is negligent. The question that remains is under what circumstances will a professional standard practice be judged negligent? It seems that it is only where the practice does not conform with basic care which is easily understood by the ordinary person who has no particular expertise in the practice of the profession. …(W)here the common practice in fraught with danger, a judge or a jury may find that the practice is itself negligent.

In Goodwin v. Olupona¹⁷, despite no evidence being led on the issue, a jury found that a hospital breached the standard of care by failing to provide appropriately trained and supervised nursing staff, and in failing to provide adequate equipment and resources in its labour and delivery facility. The hospital appealed this finding, on the grounds that the jury’s verdict was unreasonable and unsupported by the evidence. In finding that the jury’s verdict was, in fact, reasonable and supported by the evidence, the court noted that:

[34]     Identifying these fundamental obligations – that a hospital must provide staff and facilities capable of meeting the basic needs of patients – is well within the “ken of the average juror”. These responsibilities form the very foundation of a hospital’s duties to its patients.

Another variation in how a court attempted to determine the standard of care can be found in Rowlands v. Wright.¹⁸ Here, the court considered the technique used by a surgeon in removing a patient’s gallbladder – during the surgery he mistakenly cut the patient’s common bile duct.  The trial judge found that the surgeon used the proper technique, nonetheless, he concluded that the defendant breached the standard of care. The trial judge came to that conclusion by relying on his “common sense” to find that the current surgical techniques were inadequate. The appeal court set the judgement aside stating:

[21]          Although common sense no doubt has a role to play in assessing medical negligence, it plays a limited role “where a procedure involves difficult or uncertain question of medical treatment or complex, scientific or highly technical matters that are beyond the ordinary experience and understanding of judge or jury.” … .  In such cases, it will not generally be open to the trier of fact to find a standard medical practice negligent, subject to an exception where “a standard practice fails to adopt obvious and reasonable precautions which are readily apparent to the ordinary finder of fact”: Ter Neuzen, at para. 51.

Although there are examples where the  court  has found liability in the absence of, or contrary to, expert opinion, these cases are few and far between. Plaintiff’s counsel would be ill- advised to assume that  a “ter Neuzen” exception would be found to apply. Robust supportive expert opinion continues to be a fundamental component of identifying the standard of care and proving a breach of the standard of care.

Robust supportive expert opinion continues to be a fundamental component of identifying the standard of care and proving a breach of the standard of care.

THE COURT’S ROLE IN ADVANCING THE STANDARD OF CARE

Although the objective of a torts action is to put the plaintiff in the position they would have been in but for the negligence, some authors have suggested that the courts have a role to play in advancing professional standards:

“The courts on behalf of the public have a critical role to play in reviewing, monitoring and precipitating change in professional standards. … (H)olding compliance with approved practice to be negligence may be the only route to move some members of a profession to a new, better course … The courts are the appropriate organ for the adjustment of this balance, and should not abdicate their responsibility to adjudicate upon the negligence in any profession.” ¹⁹

Anderson v Chasney²⁰ is an example of the court taking such action. In Anderson a 5-year-old boy had surgery to remove his tonsils. Shortly after the surgery he stopped breathing and died of suffocation. During the procedure the surgeon had inserted sponges into his nasopharynx. The nurses were not asked to count the sponges to make sure they were removed at the end of the procedure, and the sponges used did not have strings attached so they could easily be retrieved, even though that product was available. At trial, the court found the surgeon not liable, as no evidence had been led that using sponges with strings was ordinary or good practice, or that having nurses count sponges was practical. The appeal court found that the surgeon took an unnecessary risk by failing to use one of the two methods available. In the court’s view, these precautions were within the understanding of the trier of fact and were sufficient for the determination of negligence. A finding such as this has the potential to advance practice in the interest of public safety.

WHAT COMES FIRST – STANDARD OF CARE OR CAUSATION?

Given that the third essential element of a torts action, causation, requires the plaintiff to prove a link between the breach of the standard of care and the injury suffered by the plaintiff, it stands to reason the liability analysis should unfold in a prescribed order.²¹ It will not be possible to know if the breach caused the injury, if the breach hasn’t been decided first. The court in Chasczewski v. 528089 Ontario Inc.²²  described two reasons for this ordering of the analysis:

[15]    First, without a finding that the defendant has breached the standard of care, the question of causation becomes moot. Second, … it is the defendant’s particular substandard act or omission that must be shown to have caused the harm; therefore, it is necessary to identify that act or omission to determine what, if any, connection it has to the harm at issue. In other words, causation can only be assessed in the context of a breach of the standard of care.

DEFENCES TO A CLAIM OF BREACH OF THE STANDARD OF CARE

This article has reviewed the various approaches a plaintiff may take in order to prove a breach of the standard of care in medical malpractice cases. There are a number of defences available to a defendant, and plaintiff’s counsel must anticipate those defences and be prepared to address them head-on, or answer them should they arise. Those defences will be canvassed in the next article in this series.

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1.       Donaldson, Andrea, The Doctor-Patient Relationship  and Duty  of Care – How Wide Should the Net be Cast?, The Verdict, Issue 163, Winter 2019.

2.       Note that although we will often refer to physicians, in general these principles apply to all health care professions.

3.       Sylvester v. Crits et al., 1956 CanLII 34 (ON CA)

4.       Ibid.

5.       Robertson a nd Pica rd. Legal  Liability  of  Doctors  and Hospitals  in Canada .2017Thomson Reuters Canada Limited, citing McKeachie v. Alvarez, [1970] B.C.J. No. 491.

6.       Brodeur v. Provincial Health Services Authority, 2016 BCSC 968 (CanLII).

7.       Lush v. Connell, 2012 BCCA 203 (CanLII) at 77.

8.       Crawford v. Penney, 2003 CanLII 32636 (ON SC) at 248.

9.       For example, Hewlett v. Henderson, 2006 BCSC 300 (CanLII) at 60 – 65.

10.     Pinch (Guardian ad litem of ) v. Morwood, 2016 BCSC 75 (CanLII).

11.     Kern v Forest, 2010 BCSC 938 at 162.

12.     Ediger (Guardian ad litem of ) v. Johnston, 2009 BCSC 386 at 59.

13.     McArdle, Estate v. Cox, 2003 ABCA 106 (CanLII).

14.     Supra note 12.

15.     Ediger v. Johnston, 2013 SCC 18 (CanLII).

16.     ter Neuzen v. Korn, 1995 CanLII 72 (SCC).

17.      Goodwin v. Olupona, 2013 ONCA 259 at 33.

18.     Rowlands v. Wright, 2009 ONCA 492 (CanLII), at 20, 21.

19.     Supra note 5 at 457.

20.     Anderson v. Chasney, 1949 CanLII 236 (MB CA).

21.     Supra note 5 at 353

22.     Chasczewski v. 528089 Ontario Inc, 2012 ONCA 97 (CanLII).