The Verdict - Law Journal

This is the fifth article in our series aimed at providing a detailed examination of the challenges and pitfalls in different types of medical negligence lawsuits and approaches to overcoming them. Letty Condon considers the unique aspects of birth injuries and the nature of obstetric practice. When caring for a patient in labour and delivery, healthcare professionals must know when observation and expectant care is appropriate and also when it is necessary to intervene, for the sake of both the pregnant person and their baby. This article will focus on the standard of care in birth injury cases and, specifically, issues related to the nature of obstetric practice and the patient population, expert obstetric opinion and identifying the applicable standard of care, and the possible pitfalls facing lawyers who take on such cases.

Introduction

Medical malpractice dates back to 1767 when, in the jury trial of Slater v. Baker, C.B 1767, liability was imposed on a surgeon for re-fracturing the leg of a patient, Mr. Slater. Mr. Slater had injured his leg and the leg had been set by another surgeon. Mr. Slater claimed that the two defendants, Baker and Stapleton, had then negligently broken the callus of his injured leg. In determining what was ultimately the standard of care, Justice Wilmot identified that physicians and surgeons were to be judged by “the usage and law of surgeons, … the rule of the profession as testified to by the surgeons themselves.” In 1767, the Court was permitted to take the description of the surgical experts, as to what they would have done under the circumstance, as the standard for the profession. Physician experts retain significant influence over birth injury claims today.

However, determining the standard of care and demonstrating that it was not met requires the medical malpractice lawyer to do more than obtain supportive expert opinion. A trier of fact must determine the applicable standard of care based on all of the available evidence. Childbirth encompasses a fairly unique set of circumstances within medicine, and this is relevant to determining what evidence can support a claim that the standard of care was not met. Pregnancy is often considered not to be a pathological condition, despite the significant impact that the process can have on the health and well-being of the pregnant person. Accordingly, childbirth is often described as “natural” when a pregnant person goes through labour and delivery without the help of medicine or intervention, and often when there is minimal surveillance of the process. The occurrence of a birth injury can be an unexpected traumatic event as most persons in labour anticipate the delivery of a healthy baby and hope for few, if any, interventions. Healthcare professionals are therefore faced with the challenge of maximising “the use of preventative measures during the normal delivery process to minimize the need for interventions.”

This is the fourth article in our series aimed at providing a detailed examination of the challenges and pitfalls in different types of medical negligence lawsuits and approaches to overcoming them. Each article will focus on specific injuries and will highlight the obstacles a plaintiff faces in bringing their case to a successful conclusion. By comparing cases involving similar injuries, we hope to illustrate how the plaintiff succeeded, and when they did not, strategies that may have been available to improve their chance of success.

This article will focus on a recent stroke case in which the plaintiff was successful, Hasan v. Trillium Health Centre Mississauga, 2022 ONSC 3988 (CanLII) (Hasan) to illustrate a number of successful strategies used by plaintiff’s counsel, and point out some problems experienced by the defence as they presented their case. With damages agreed on a global basis in advance, the court was left to determine standard of care and causation over the course of this 21-day trial.

Introduction

Delayed diagnosis leading to delayed treatment are often at play in stroke cases, and given that there is a relatively short window for the successful treatment of a stroke, the plaintiff’s lawyer must embark on a methodical and thorough work-up and presentation of the case in order to persuade the court that but for the negligence, the diagnosis would have been made in time to administer appropriate therapy and achieve recovery.

In 2011 Syed Hasan was a 40-year-old man with no pre-existing serious health conditions. Early on December 3, 2011, he felt dizzy and nauseous and he began to vomit. He was unsteady on his feet and feared he would fall if he didn’t hold on to somebody’s hand. He attended Milton District Hospital where he was diagnosed with probable peripheral vertigo and discharged home. Later that day he was still unwell and saw his family doctor who examined him, gave him a referral note and directed him to go to Trillium Health Partners – Mississauga Hospital, the Regional Stroke Centre (“Trillium”) with the request to “rule out organic cause (brain lesion or stroke).”

Later that day Mr. Hasan was seen by the defendant Dr. Campbell at Trillium. Dr. Campbell took a history, examined him, and ordered medications and a CT of the head which showed no evidence of intracranial hemorrhage. His diagnosis was “Dizzy — Bell’s Palsy – Peripheral Vertigo.” Mr. Hasan was sent him home with a prescription for dizziness and instructions to follow-up with his family doctor in 3-4 days and return to the emergency department if he got worse.

This is the third article in our series examining the challenges and pitfalls in different types of medical negligence lawsuits and approaches to overcoming them.  Lindsay McGivern focuses on cases of acquired brain injury in adults caused by medical negligence. A common feature of these cases is that often the injury is the result of a missed diagnosis. The medical team had an opportunity to intervene and prevent the progression of the medical problem prior to the onset of permanent brain injury. Missed diagnoses are easy to see in retrospect. Succeeding in a medical malpractice claim for missed diagnosis, however, requires overcoming a series of obstacles.

Standard of Care

Hindsight

A common defence in missed diagnosis cases is that the plaintiff is viewing the case with the advantage of hindsight, having already seen the outcome. This, of course, is not a permissible way to assess the conduct of the defendant. The courts have long recognized that there is a danger in evaluating a medical negligence allegation based on hindsight; the knowledge of what the correct diagnosis was and the damage caused by the mistaken diagnosis “will colour all aspects of the assessment of medical care and can influence the fair and reasonable assessment of that care.”¹
The law in this area is clear. As stated by Justice L’Heureux Dubé in Lapoint v. Hôpital Le Gardeur,

1. “[C]ourts should be careful not to rely upon the perfect vision afforded by hindsight. In order to evaluate a particular exercise of judgment fairly, the doctor’s limited ability to foresee future events when determining a course of conduct must be borne in mind. Otherwise, the doctor will not be assessed according to the norms of the average doctor of reasonable ability in the same circumstances, but rather will be held accountable for mistakes that are apparent only after the fact.²

The key consideration in these cases is what information the physician had available to them at the time. Briante (Litigation Guardian of) v. Vancouver Island Health Authority (c.o.b. Royal Jubilee Hospital)3 is a good example of this analysis. The plaintiff in Briante was a young man who was taken to hospital by family members due to serious concerns about his mental health. Mr. Briante was assessed by a psychiatric nurse and by an emergency room physician. They elected not to call for a psychiatric consultation in hospital and instead discharged him home with a referral to a psychiatric outpatient service. Six days later Mr. Briante attempted to commit suicide by repeatedly stabbing himself in the neck. His family members, who were present, responded quickly and managed to save his life but blood loss caused a hypoxic brain injury. They sued the hospital alleging that Mr. Briante’s suicide attempt could have been avoided with proper medical care.

When Mr. Briante presented to hospital, he told the triage nurse that he was having a “nervous breakdown.” He was assessed by the psychiatric nurse, Nurse Hooff, before he saw a physician. The Psychiatric Emergency Services unit in Royal Jubilee Hospital is set up as a team approach. The psychiatric nurse is responsible for conducting initial assessments, collecting available collateral information and providing that information to the emergency physician along with a nursing diagnosis. The Psychiatric Emergency Services unit encourages family input and working with the families of patients. After the nursing assessment was completed, Mr. Briante was seen by an emergency room physician, Dr. Ross. Dr. Ross concluded that Mr. Briante was suffering from a situational crisis that was causing him emotional distress but that he was not delusional or psychotic. In retrospect, Mr. Briante was suffering from psychosis and at risk of harm to himself. The issue was whether the information available to the medical team at the time would have led a reasonable medical practitioner to that conclusion.

This is the second article in our series examining the challenges and pitfalls in different types of medical negligence lawsuits and approaches to overcoming them. In this article Andrea Donaldson unravels some of the complexities inherent in surgical negligence lawsuits. Many factors come into play when there is a bad outcome after surgery.  These include a physician’s clinical judgement, the surgical technique used and individual patient considerations. Cases of surgery performed on a wrong body part, or instruments left inside a patient make the news from time to time, but surgical negligence cases are rarely as straight-forward as that.

The 2021 Supreme Court of Canada decision in Armstrong v. Ward, 2021 SCC 1, has implications for medical malpractice claims across the country. The decision, which clarified the law on causation, should make proving this aspect of a negligence claim easier for the plaintiff than if the Ontario Court of Appeal decision was left to stand,
which could be read as holding that as long as the defendant physician “tried” to meet the standard of care, there could be no finding of negligence.

However, there are still many pitfalls in surgical negligence cases that plaintiffs must
avoid in order to succeed. In this article, we begin by examining the Armstrong decision and its effect on the law. We then look to a number of surgical negligence cases where the plaintiff was not successful for various reasons, and then question if anything can be gleaned from Armstrong that may have affected the outcome of those cases.

Armstrong v. Ward

In Armstrong, the Supreme Court of Canada set aside the decision of the Ontario Court of Appeal in a medical malpractice action, restoring the trial judgement which found the defendant physician liable for the plaintiff’s injuries.
The case centered around the plaintiff Ms. Armstrong’s colectomy surgery performed by Dr. Ward. Although the surgery appeared to be uneventful, Ms. Armstrong began to experience increasing problems from mild abdominal pain and a pulling sensation to significant left flank pain postoperatively. Further investigation showed that Ms. Armstrong’s left ureter (a tube that carries urine from the kidney to the bladder) was blocked. The blockage led to significant damage to her left kidney which ultimately had to be removed.

The plaintiff’s theory of the case was that Dr. Ward caused the damage to the ureter using a cauterizing device known as a LigaSure by improperly bringing it within two millimeters of the ureter.

Both the plaintiff and defense experts agreed at trial that the thermal energy from the LigaSure can spread beyond the jaws of the device and can damage tissue within two millimeters. All of the experts stressed the importance of identifying and protecting the ureter during laparoscopic colectomy surgery, with the plaintiff’s expert indicating that if a surgeon takes the necessary steps to identify and protect the ureter, the injury would simply not occur in an anatomically normal colon.

This article is the first in a series aimed at providing a detailed examination of the challenges and pitfalls in different types of medical negligence lawsuits. Each article will focus on specific injuries and will highlight the obstacles a plaintiff faces in bringing their case to a successful conclusion.

Introduction

The imbalance of knowledge and power between a health care provider and a patient is never more evident than when a patient believes they have been injured due to medical negligence. Add the discipline of law to the mix and it becomes clear why medical negligence cases have a well-deserved reputation for being intellectually challenging, laborious, and expensive. Patients who have suffered severe or catastrophic injuries while receiving health care often have the mistaken impression that it is impossible to win a case against a physician or other health care professional in Canada. While the odds may be stacked against them, in the right circumstances it is possible to successfully sue a health care provider in Canada.

Every medical negligence case is an opportunity to learn about a new area of medicine or to look at the issues in a new way. The lawyer taking on these cases must immerse themselves in complicated medical procedures and knowledge, even before the experts weigh in. This is because a significant understanding of the relevant medicine is necessary so you can ask the right questions and ensure the causation case can be made out. In addition, standard of care issues can be complex and a solid understanding of the complexities of the healthcare system is required. Care providers work in a teambased health care system where the questions of who, what, where, when and why, can become a gordian knot of overlapping responsibilities that must be teased out. The convergence of these issues makes for an environment that caused one court to note that:

1. … Medical negligence claims are expensive to prosecute. They are not for the weakkneed. Almost invariably, they are complex and time-consuming and must be prosecuted vigorously. …¹

The Impact of the Team-Based Approach in Medicine

As the provision of health care has evolved over the past decades, the court’s view of the role of various health care professionals has also evolved. Historically the health care hierarchy was viewed as a pyramid, with medical doctors at the top, assuming overall diagnostic and treatment responsibility. This was followed by the nursing profession, with allied health care professionals forming the next layer and assistants and order-lies at the base of the pyramid. This pyramid is flattening due in large part to efforts over the last two decades to bring all health care professions under umbrella legislation. ² This revised legislative structure has been accompanied by expansion in the scopes of practice of many health care professionals. Now, the scopes of practice of regulated professions may have overlapping or shared activities and fewer exclusive practices. This, of course, has had an impact on the standard of practice expected of various health care professionals. As scopes of practice have expanded there has also been an increase in the team-based approach to delivering health care services. These collaborative approaches have been shown to improve health care quality and safety as well as patient outcomes.³