The Verdict - Law Journal

This is the ninth article in 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 will focus on specific injuries and 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, provide strategies that may have been available to improve their chance of success.

This article will focus on cases where miscommunications have caused or contributed to a plaintiff’s injury. The importance of communication in facilitating Canada’s collaborative, team-based model of healthcare delivery, and the role that complete and accurate communication of patient information plays in defining the standard of care for physicians and nurses, will be explained using a recent obstetrical malpractice judgment of the B.C. Supreme Court as a case study.

Introduction

Healthcare in Canada is delivered through a collaborative, team-based model of care, in which different medical professionals, possessing diverse experience and expertise, respond to patient needs in a synergetic fashion. These teams may operate according to established templates, in the ordinary course of primary healthcare delivery (for example, the informal, two-person teams comprising of family physicians who prescribe medications and pharmacists who fill them), or they may be complex and ad hoc (for example, labour and delivery teams, which often include professionals specializing in obstetrics, pediatrics, nursing, family medicine, neonatology, and anaesthesiology). Under such a collaborative care model, the delivery of safe and effective healthcare is dependent on each team member competently fulfilling their individual duties. As one Manitoba court put it, “the health care system in place in Canada mandates that these professionals work as a team with each individual having a role in the provision of care to a [patient]. Each person must carry out their role within their appropriate standard of care and each of these professionals is entitled to rely upon (and must rely upon) the others to fulfill their respective individual responsibilities.”¹

A duty that is common to all healthcare professionals working collaboratively, which has been affirmed by courts across Canada, is the duty to communicate all relevant patient information in an accurate and complete manner. The failure to do so can have cascading impacts on the performance of the team as a whole, leading to catastrophic outcomes for patients: one review of obstetric malpractice claims conducted by the American College of Obstetrics and Gynecology, for instance, found that 31% of adverse events were attributable to communication problems.²

Although communication errors may not be as obviously disastrous as, say, surgical errors, they can have devastating impacts on patients and their families. In an era where interprofessional communications are increasingly transmitted across new technologies and mediums,³ and in which medical professionals are increasingly reliant on team-based care given staffing shortages during Canada’s ongoing “health human resources crisis,”⁴ the potential impact of miscommunication among medical professionals involved in a patient’s care must be front-of-mind for plaintiff’s counsel when analyzing and arguing their case.

This is the ninth article in 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 will focus on specific injuries and 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, provide strategies that may have been available to improve their chance of success.

This article will focus on cases where injuries were caused by a delayed diagnosis, and will discuss when a delay in diagnosis constitutes negligence. The unique challenges of proving causation in such claims and the role of the conduct of the plaintiff will be examined in relation to when this can lead to a finding of contributory negligence or even a complete dismissal of the plaintiff’s claim.

The Duty to Diagnose

One of the many duties of a doctor is the duty to diagnose a patient once they have undertaken the patient’s care. A doctor is not expected to be infallible in diagnosing a patient. They must, however, exercise reasonable care, skill and judgement in coming to a diagnosis. If this is done, they will generally not be held liable even if their diagnosis turns out to be incorrect.¹

The defense of “error of judgment” often comes into play in cases of missed or delayed diagnosis, which argues that the defendant cannot be held liable as long as they were reasonably exercising their clinical judgment, even if their judgment turned out to be an error. But if the physician does not avail themselves of the scientific means available for the collection of the best factual data to arrive at the diagnosis, does not accurately obtain the patient’s history, and/or does not refer the patient to the appropriate specialists, courts have found that the result is not an error of judgment but in fact constitutes negligence.²

In Pinch v Morwood ³, the infant plaintiff sustained a catastrophic brain injury after her mother suffered an eclamptic seizure. Two days before suffering the seizure, Ms. Pinch had attended the emergency department with complaints of neck pain that had kept her up all night. Allegations of negligence were brought against the emergency physician who assessed Ms. Pinch for failing to diagnose and treat her pre-eclampsia, a disorder in pregnancy characterized by high blood pressure, proteinuria, and headaches. If left untreated, pre-eclampsia can cause eclamptic seizures. It was uncontested that if pre-eclampsia had been diagnosed, treatment would have been provided that would have prevented Ms. Pinch’s eclamptic seizures and the resultant brain injury to her unborn child.

This is the eighth 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 wrongful birth cases, including specific issues relating to causation in such claims and the inconsistent approaches taken by courts in determining damages for the cost of care for children born due to medical negligence, either with or without disabilities.

Introduction

Wrongful birth claims involve allegations of negligence by a parent against a medical practitioner for the birth of a child who would not otherwise have been born. Wrongful birth cases typically involve the unwanted birth of a child with disabilities following the defendant’s negligent performance of a medical procedure or provision of medical advice (e.g. failed abortion, failure to offer genetic or other prenatal tests, failure to properly perform or interpret prenatal tests, or failure to inform the patient of the risk of fetal abnormality associated with the results of the prenatal testing).

A wrongful pregnancy claim specifically concerns plaintiff parents who never wanted to be pregnant in the first place, but became pregnant with an unplanned child with or without disabilities as a result of the defendant medical practitioner’s negligence (e.g. failed sterilization, negligence in prescribing contraceptives).¹ For the purposes of this article, we use the term wrongful birth to describe both wrongful birth and wrongful pregnancy claims.

Wrongful life claims are similar to wrongful birth claims, with the difference being that they are brought by the child rather than the parents. In such cases, the child’s claim is that but for the negligence of the defendant, they would not have been born at all. Wrongful life has been rejected as a cause of action by Canadian courts for various reasons, including the fact that as a matter of public policy, any existence should be viewed as preferrable to no existence at all.²

Proving a breach of the standard of care in wrongful birth cases is similar to that of other medical negligence cases, but there are certain unique causation issues that require counsel to gather extensive evidence about the plaintiff’s particular circumstances. And although wrongful birth lawsuits are not new in Canada, with cases dating back to the 1970’s, there is still uncertainty and controversy around the assessment of damages based on each court’s characterization of the loss to the plaintiff parent. Over the years, courts have denied or limited an award for the cost of care based on inconsistent approaches. In particular, the damage limits for children born without disabilities are so exceptional that no such limit is employed in any other area of medical negligence.

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.