The Verdict - Magazine

This is the sixth 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

To succeed in a medical malpractice claim, the plaintiff must prove that there is a causal link between the negligent conduct of the health care provider and the plaintiff’s injuries. While it sounds straightforward, causation is often the most difficult and costly element to prove due to issues such as pre-existing injuries, divisibility of injuries, multiple tortious or non-tortious events, limitations of medical science and lack of direct evidence. Historically, the law on causation was a highly contentious issue. Over the last quarter century, the Supreme Court of Canada (SCC) has ruled several times on the causation issue, re-stating and clarifying the proof required for plaintiffs to succeed in a medical malpractice claim.

Snell v. Farrell (1990)

In order to understand the basis of the modern law on causation in medical malpractice cases, one must look back to Snell v. Farrell¹ (“Snell”). In this case, the defendant ophthalmologist was surgically removing a cataract from the plaintiff’s eye.  After injecting a local anaesthetic into the retrobulbar muscles behind the eyeball, the defendant noticed a small discolouration, which he stated was a very small retrobulbar bleed. On palpitating the eye, he found that it was not hard and there were no other signs of retrobulbar haemorrhage, and he continued the operation. Subsequently, the optic nerve atrophied, resulting in loss of sight. 

One possible cause of atrophy is pressure due to retrobulbar haemorrhage. The experts were unable to state with certainty what caused the atrophy or when it occurred. The trial judge accepted the expert evidence that where there is bleeding other than the obvious pinprick of the needle, the operation should not be continued.  Relying on the McGhee v. National Coal Board² (“McGhee”) decision, the trial judge found that the plaintiff had prima facie proved causation, and the defendant was liable. The defendant’s appeal was dismissed.

When the SCC granted leave to appeal, the plaintiff’s bar hoped that the Court would adopt one or both of the options for proving causation outlined in McGhee. That is, causation can be proven simply by proving that the defendant’s negligence created a risk of harm and that the plaintiff’s injury fell within that risk – or alternatively, where the negligence created or increased the risk of harm, and the injury suffered fell within that increased risk, the burden of proof then shifts to the defendant to disprove causation.

This is the fifth 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

Physician-patient confidentiality is a necessary component of the doctor-patient relationship. It allows patients to share personal information with their physician that they may not share with anyone else in order to obtain optimal care and health outcomes.¹

However, there are situations where a physician may be permitted, or required, to disclose confidential patient information for legal or ethical reasons. For example, legislation requires a physician to report if a patient has a medical condition that makes it dangerous for them to drive² has certain communicable diseases³ or when there is a child in need of protection.⁴

Physicians may also be permitted, in certain circumstances, to disclose confidential information about a patient if it would be in the interest of safety to the public or an individual. But does this ever rise to a duty on the part of the physician to warn third parties of a danger posed by a patient? This article discusses when the interest in public safety overrides physician-patient confidentiality and examines how the “duty to warn” has been approached by the courts over the years.

Tarasoff v. Regents of the University of California

The most famous case on the duty to warn third parties is the 1976 US case of Tarasoff v. Regents of the University of California⁵ in which the Supreme Court of California held that mental health professionals have a duty to protect an individual they determine is at risk of danger.

On October 27, 1969, Prosenjit Poddar killed Tatiana Tarasoff, a university student whom he was acquainted with. At trial, Ms. Tarasoff’s parents alleged that two months prior to her death, Mr. Poddar had confided his intention to kill Ms. Tarasoff to Dr. Lawrence Moore, a psychologist employed at a hospital at the University of California at Berkeley. Dr. Moore alerted the campus police who briefly detained Mr. Poddar but released him when he appeared rational. The plaintiffs argued that Dr. Moore failed to exercise reasonable care to protect Ms. Tarasoff by warning her or others likely to apprise her of the danger. The defendants argued that they owed no duty of reasonable care to Ms. Tarasoff.

The court found that as a general rule, a person does not owe a duty to control the conduct of another, nor to warn those in danger of such conduct, but noted that an exception to this rule exists in cases where “the defendant stands in some special relationship to either the person whose conduct needs to be controlled or in a relationship to the foreseeable victim of that conduct.”⁶ Applying this exception, the court found that a relationship of defendant therapists to either Ms. Tarasoff or Mr. Poddar would suffice to establish a duty of care. The court held that once a therapist has determined, or should reasonably have determined, that a patient poses a serious danger of violence to others, he or she bears a duty to exercise reasonable care to protect the foreseeable victim of that danger.⁷

The defendants argued that free and open communication is essential to psychotherapy and that unless a patient is assured that the information he or she reveals will be held in the utmost confidence, he or she will be reluctant to make the full disclosure required to diagnose and treat. In response, the court stated that “we conclude that the public policy favoring protection of the confidential character of patient-psychotherapist communications must yield to the extent to which disclosure is essential to avert danger to others. The protective privilege ends where the public peril begins.”⁸

The Tarasoff decision and the duty to warn has been discussed by Canadian courts. However, there have been no cases in which a positive duty on the part of a medical professional has been specifically found.

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.