The Verdict - Law Journal

This is the fourth article of our series discussing practical and evidentiary issues in medical malpractice. Each article will examine recent medical malpractice case law and focus on practical and evidentiary issues within them. The goal is to provide some useful insight into the obstacles that occurred in hopes that future cases can adapt and develop new ways to overcome these challenges.

Artificial intelligence (“AI”) has the potential to radically transform the way healthcare is delivered in Canada. From interpreting imaging to streamlining workflows, AI tools are quickly becoming a routine part of clinical practice. Many see this as a positive shift: by reducing human error and alleviating administrative burdens, AI has the potential to address many of the underlying causes of adverse patient outcomes, including poor documentation and communication breakdowns.

This transformative potential, however, carries a host of legal uncertainties. While much has been written about how courts might address novel uses of AI in diagnostics and clinical decision-making¹, far less attention has been given to the more routine, administrative uses of AI. Unlike diagnostic tools, administrative applications of AI remain unregulated in Canada. According to the Royal College of Physicians and Surgeons of Canada’s Task Force Report on Artificial Intelligence and Emerging Digital Technologies, such tools have the potential to “liberate physicians from repetitive tasks, allowing time for more patient care, including compassionate care, and improving the safety and quality of patient care.”² Yet, from a medical malpractice perspective, these seemingly low-risk technologies may pose significant and immediate risks to both patient safety and the integrity of the litigation process.

This article explores the complex interplay between AI and medical malpractice, with a specific focus on digital scribes: AI-powered systems that transcribe and summarize clinical encounters. While digital scribes offer the promise of reduced administrative burden, they also raise significant legal risks that medical malpractice lawyers must be alert to in reviewing documents and litigating lawsuits.

AI in the Canadian Healthcare Landscape

Artificial intelligence is notoriously difficult to define. For this reason, the Canadian Medical Protective Association (“CMPA”) does not offer a single definition of AI, but instead enumerates its fundamental features: the technology is designed to achieve specific objectives; it operates with a degree of autonomy in pursuing those objectives; data is provided as input; and it produces output in the form of information, ranging from a recommended solution to a problem to a command directing a robotic device.³

In both legal and medical discourse, a distinction has emerged between clinical and administrative uses of AI.⁴ Health Canada, along with the CMPA, draws this line explicitly. AI tools that serve a clinical or medical purpose — such as assisting in diagnosis, monitoring vital signs, or interpreting medical imaging — are regulated as “software as a medical device” (SaMD). These tools are subject to oversight under the Food and Drugs Act and related Health Canada guidance.⁵

This is the third article of our series discussing practical and evidentiary issues in medical malpractice. Each article will examine recent medical malpractice case law and focus on the practical and evidentiary issues within them. The goal is to provide some useful insight into the obstacles that occurred in hopes that future cases can adapt and develop new ways to overcome these challenges.

Introduction

Surgical negligence cases concerning intra-operative negligence are rarely straightforward. The story often begins with a patient who has awakened from surgery to find that they suffered a serious medical complication, but is told that the surgical team did everything right. The operative report does not paint the whole picture. The patient is left confused and frustrated. What happened in the operating room?

The recent Ontario case, Szeto v. Kives¹ is an important illustration of how surgical photo evidence can be skillfully utilized to overcome the evidentiary gaps of an operative report written by the defendant and undermine opposing expert opinion.

Challenges Of Intra-Operative Surgical Negligence Cases

Surgical negligence cases are one of the most challenging types of medical malpractice cases for plaintiffs to pursue. The surgical error can be strikingly clear in some cases. News outlets occasionally cover stories about a surgery being performed on the wrong site or patient, the wrong surgical procedure being performed, or surgical items being left behind inside the patient. However, most surgical negligence cases are far from straightforward. Counsel will find that in many cases, the patient or their family have absolutely no understanding of what may have gone wrong for the serious injury or death to have occurred, partly due to limited sources of evidence.

If the patient was under general anesthesia, they would obviously have no clue as to what actually transpired in the operating room behind closed doors. There are no family members or friends present to provide their account of the events during surgery. The only witnesses are the members of the plaintiff’s surgical team, who are also the potential defendants. The primary evidence regarding how the surgery was performed will be contained in the operative report written by the defendant surgeon. The operative report will form a part of the patient’s medical record, along with other operative records completed by potential defendants. When the medical records paint a seemingly uncomplicated surgery (i.e. no red flags), the investigation will be extremely challenging.

Facts Of The Case

In the recent Ontario case Szeto v. Kives, the plaintiff underwent a robotic-assisted laparoscopic hysterectomy at St. Michael’s Hospital, performed by the defendant gynecologist surgeon. The defendant documented in the operative report that she took down or cut a significant quantity of adhesions by the left fallopian tube to the bowel. The defendant also documented that the top of the plaintiff’s uterus was inadvertently perforated during the insertion of an instrument called the uterine manipulator. No other complications were documented.

Following the surgery, the defendant went to see the plaintiff in recovery. The defendant was satisfied that the surgery had gone well and informed the plaintiff’s sister that it was a “textbook” surgery. There was no mention of any complications. The plaintiff was discharged from the hospital the next morning, although still feeling unwell. In the middle of the night, she developed chest pain and was taken by ambulance to Scarborough General Hospital in critical condition. She underwent lifesaving emergency surgery by Dr. Chiu during which it was discovered that she had a bowel perforation which required a colostomy. The plaintiff suffered permanent injuries and was discharged after months of difficult recovery.

In trial, the experts agreed that the bowel perforation occurred during the surgery conducted by the defendant. Justice Leiper found that the bowel perforation likely occurred while the defendant was cutting the significant quantity of adhesions between the left fallopian tube and the bowel. She acknowledged that another mechanism of injury was possible. However, it ultimately did not matter how the injury occurred because the injury happened during the surgery for which the defendant was responsible. The defence did not dispute that had the defendant discovered the injury intra-operatively and taken steps to repair it, the plaintiff’s permanent injuries would likely have been avoided. The parties agreed on damages outside of court.

This is the second article of our series discussing practical and evidentiary issues in medical malpractice. Each article will examine recent medical malpractice case law and focus on the practical and evidentiary issues within them. The goal is to provide some useful insight into the obstacles that occurred in hopes that future cases can adapt and develop new ways to overcome these challenges.

The standard of care of a physician is directly related to his or her qualifications. As a result, it is well accepted that a specialist will be held to higher standard than a generalist.¹

In some instances, however, a generalist may not have the formal training of a specialist, but their background and experience may result in them being held to a higher standard of care. This issue arose in the recent Manitoba Court of Appeal case of Dumesnil v Jacob². In Dumesnil, the defendant was a general surgeon with orthopedic training who allegedly provided substandard care with respect to a complex calcaneus (heel bone) fracture. The Manitoba Court of Appeal ordered a new trial because it found that the trial judge had erred by not adopting a standard of care close to that of an orthopedic surgeon with a subspecialty in trauma.

At trial, the plaintiff alleged that the defendant general surgeon was negligent in the treatment of her calcaneus fracture which she sustained during a motor vehicle accident. Specifically, she alleged that he failed to reduce her peroneal tendons, which run alongside the ankle and help control side-to-side motion.  She alleged that his actions caused her to develop an infection and an increased risk of arthritis, and as a result, she suffered from ongoing pain and disability. The trial judge described the standard of care as that of “a general surgeon in a rural community based hospital practicing in orthopaedics”³ and concluded that the defendant had met that standard.

This is the first article of our series discussing practical and evidentiary issues in medical malpractice. Each article will examine recent medical malpractice case law and focus on the practical and evidentiary issues within them. The goal is to provide some useful insight into the obstacles that occurred in hopes that future cases can adapt and develop new ways to overcome these challenges.

In medical malpractice cases, where cases may come to trial long after the incident in question and the defendants may have seen hundreds of patients in the interim, witnesses’ memories can often be hazy. In these cases other sources of evidence, including the medical chart and a medical provider’s standard practice, can be critical pieces of evidence. Ensuring that the plaintiff’s theory of the case incorporates, is consistent with or explains any departures from these sources of evidence is vital to the success of the case.

Facts of the Case

This article examines the case of A.G. (Litigation guardian of) v. Rivera,¹ a case that involves a premature infant who failed to receive medications intended to reduce the risks and injuries of premature delivery and suffered several medical complications as a result. A.G.’s mother Li Qu, attended hospital on November 30, 2014. Her baby was 25 weeks and 1 day gestational age. Ms. Qu attended hospital with concerns about vaginal bleeding and was assessed. Dr. Rivera did a test to confirm that her membranes had not ruptured, and ordered an ultrasound. The ultrasound reported that her cervix was shorter than expected, a concerning sign indicative of a risk of preterm labour. Ms. Qu was less concerned about a report of shortened cervix as she had been told she had the same issues during her first pregnancy and carried that baby to full term. Ms. Qu reported some irregular cramping in the previous days that had since resolved. There was significant debate at trial about the remainder of that visit. There was also some confusion with the dating of Ms. Qu’s pregnancy. Ms. Qu and the defendants were under the impression that the gestational age of her baby was 23 weeks and 4 days, although was in fact over a week more developed. The mistake’s relevance related to the exponentially increasing risks to a fetus for each additional week of prematurity. Survival rates are only 20% for babies at 23 weeks but increase to 80% by 25 weeks. These realities affect treatment recommendations. The decision always rests with the mother, after being fully informed by her physician, but at earlier gestations some practitioners discourage attempts of resuscitation with a focus on palliative care whereas at 25 weeks, most practitioners would recommend full resuscitation of the infant. Regardless of the correct gestational age, the experts agreed Ms. Qu should have been given

This is the final installment of our series aimed at providing a detailed examination of the challenges and pitfalls in different areas of medical negligence lawsuits, and approaches to overcoming them. Each article has focused on specific injuries and highlighted the obstacles a plaintiff faces in bringing their case to a successful conclusion. Our next series, which will debut in the Winter 2024 edition of The Verdict, will focus on practical and evidentiary issues in medical malpractice.

This article concludes our current series by considering one of the most critical and costly aspects of any medical malpractice lawsuit: the client’s care plan. It will proceed by describing the principles of autonomy, choice, and independence that underpin all cost of future care analyses, as repeatedly reiterated by the Supreme Court of Canada; flagging proposals for care that are commonly found in defence submissions and the case law, which contravene these principles; and providing specific advice on how to develop and present a care plan successfully in mediation and at trial.

Few aspects of a medical malpractice lawsuit are as important to both counsel and client as the life care plan. For plaintiff’s counsel, the care plan is the evidentiary basis for the assessment of costs of future care. When properly presented, “the life care plan can be a powerful tool of persuasion, whether persuading the defence to settle the case or persuading [the court] to award a fair amount of damages.”¹ For the critically injured client and their family, who are often facing a scary and uncertain future, the care plan serves as a source of reassurance and empowerment, particularly when it is crafted with their input².

The law in Canada concerning care planning in medical negligence cases is clear and well-established. The ultimate goal of an assessment of future care costs is to ensure that the injured plaintiff is adequately cared for. Expenses that further this goal are based on what a reasonable person with ample means would incur.³

With respect to the plaintiff’s living arrangement — the focal point of every care plan, which inherently impacts the provision of all other aspects of care — courts across this country have repeatedly found that it is “difficult to conceive of any reasonably-minded person of ample means who would not be ready to incur the expense of home care.”⁴ Plaintiffs’ counsel need not rely solely on this case law or common sense to support the idea that any reasonable person would choose this model of care over, say, a group home: a recent survey demonstrated that 91% of all Canadians, and nearly 100% of Canadians aged 65 years or older, report that they plan on living independently for as long as possible.⁵