The Verdict - Law Journal

This is the seventh 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. Brenda Osmond discusses the importance of conducting a detailed review of the medical records in a medical malpractice lawsuit, with a focus on birth injury cases. This article reviews cases in which the courts have addressed various issues relating to medical records, including late entries, lack of charting or incomplete charting, and the interplay of medical records and a defendant’s usual practice.

Introduction

Medical records provide the foundation for safe health care for patients. They are also the cornerstone of any medical malpractice lawsuit. They can be admissible in court as business records under an exception to the hearsay rule, without calling the maker of the notes to testify, provided they meet the requirements of the Evidence Act, RSBC 1996, c 124. s. 42. Whether the information in the records is an accurate representation of the care provided is a live issue in many medical malpractice lawsuits. The article will explore a number of recurring themes related to medical records, with a focus on how these themes play out in baby cases.

Nothing charted / nothing done

There is a saying in healthcare that if nothing was charted, then nothing was done. As trite as that sounds, it was the winning mantra in Pinch (Guardian ad litem of) v. Morwood_¹ . Here, the plaintiff mother suffered an eclamptic seizure two days after being seen in the emergency room of the local hospital. In the ER her blood pressure had not been recorded in the chart, and despite hearing detailed evidence from the bedside nurse about her approach to taking and recording a patient’s blood pressure, the court found that the blood pressure had not been taken, and if it had been taken it would not have been normal. This would have led to further testing, referrals and treatment which would have prevented the eclamptic seizure and the ultimate brain injury to the infant plaintiff. In this fact-driven case, the court noted that the absence of charting permits the inference that correct steps were not taken.^2,3 Citing Skeels (Estate of) v. Iwashkiw⁴ [Skeels] the court noted:

112 The lack of charting does not necessarily mean that procedures were not conducted, nor is the mere lack of charting prima facie evidence of negligence in the treatment. However, the lack of charting makes it more difficult for a court to determine matters of credibility where individuals who are trained to chart, did not do so. This failing, despite the opportunity to do so, makes it harder for a court to accept that the correct steps were followed and appropriate procedures were done as it would have been logical for them to be recorded had they been done: …

There is a method of documentation known as “charting by exception” in which a nurse does not chart a parameter unless there has been a change from a previously documented result. Skeels involved a delay in delivery due to a failure to recognize and manage shoulder dystocia. The court was critical of the “charting by exception” practice and specifically noted several examples where results of various assessments were charted even though there had been no change from a previously documented result, suggesting that charting by exception was, in fact, not the practice at that hospital.⁵ By extension, this suggested that that the lack of documentation over a critical 1 ½ hour period of time in which the plaintiff mother was fully dilated and the baby was eventually delivered, indicated that no care had been provided over that time period.

This is the sixth 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 causation in birth injury cases and, specifically, issues related to proving that different treatment would have been available if appropriate care had been provided and the treatment available would likely have avoided the outcome.

Introduction

Causation defences in birth injury cases were, historically, somewhat rare. The focus in the past seemed to be more on defending the care provided rather than building up a strong defence that, even if the medical practitioner provided inadequate care, the plaintiff had failed to prove the causal connection between that care and the ongoing injuries. In more recent birth injury litigation, causation defences arise in most, if not all, cases.

Causation can be difficult to prove in any medical case; there is simply so much that is still unknown in medicine. This uncertainty, despite all the advances that have been made in science and technology can make it impossible for a plaintiff to prove the factual cause of an injury, let alone the legal cause.

In birth injury cases, the uncertainties are even greater. With adult patients, the physician can speak to the patient and collect a history including past medical issues and current symptoms. The physician can observe the condition of the patient and perform a physical assessment. Blood can be drawn, urine samples can be obtained, lumbar punctures can be performed. These routine tests all provide additional information as to what is happening with the patient. Care for an unborn child is drastically different. Most of the information as to the health and wellbeing of the fetus is obtained from ultrasound images, the presence or absence of fetal movement and an assessment of the fetal heart rate. Direct assessments of a fetus, if even possible, carry significant risks (including miscarriage) and are therefore quite rare. The limitations on the information available to medical practitioners can make it extremely difficult, or impossible, to establish when and how an injury occurred.

In addition, the process of childbirth carries many risks to the fetus from numerous potential non-negligent sources. An oft cited quote from Lord Denning appears in the defence submissions in many birth injury claims:

Being born is dangerous for the baby. So much so that an eminent professor in this case tells us that: ‘Throughout history, birth has been the most dangerous event in the life of an individual and medical science has not yet succeeded in eliminating that danger.’ He parodies the psalmist by referring to ‘valley of the shadow of birth’.

This has its legal consequences. It follows that, when a baby is stillborn or dies soon after birth or is born damaged or deformed, that fact is no evidence of negligence on the part of the doctors or nurses attending the birth. It does not speak for itself. The maxim res ipsa loquitur does not apply.¹

Within this valley of the shadow of birth, identifying the factual cause of an injury and then linking that injury to inadequate care is frequently the most challenging part of the case.

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.