The Verdict - Magazine

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

Should medical malpractice cases be heard in front of a jury, or by judge alone?  In this article Lindsay McGivern considers this question with examples from recent case law that illustrate some of the challenges and risks involved in having a complex case heard by a jury.

Supreme Court Justice Claire L’Heureux-Dube called the jury “the conscience of thecommunity,”¹ and wrote that it can “act as the final bulwark against oppressive laws or their enforcement.”² Jury trials have long been considered a fundamental right within the Canadian court system. As with any right, there are restrictions placed upon it. For example, a trial must be heard by a judge without a jury if the case relates to the custody of an infant or the administration of a deceased person’s estate. In the context of medical malpractice there are restrictions on the use of jury trials both procedurally (whether the court will allow or refuse a jury trial) and practically (whether either party will find a jury trial effective in resolving the case). The purpose of this article is to look at some of the complexities of the medical malpractice jury trial.

Jury Trial Availability in British Columbia

By default, civil actions in the Supreme Court are tried without a jury unless a party files and serves a jury notice³. These jury notices can be challenged by the opposing party for the reasons stated in Rule 12-6(5):

1. the issues require prolonged examination of documents or accounts or a scientific or local investigation that cannot be made conveniently with a jury,
2. the issues are of an intricate or complex character, or
3. the extra time and cost involved in requiring that the trial be heard by the court with a jury would be disproportionate to the amount involved in the action.⁴

At first glance, it may appear that this rule would apply broadly to medical malpractice cases, which almost inevitably involve a multitude of experts, complex medical issues and examination of voluminous medical records. However, the analysis is not always quite as straightforward. The determination of whether to strike a jury notice for complexity or prolonged examination of documents/accounts or scientific investigation is a two-step process:⁵

1. will the issue require prolonged examination of document or account or scientific investigation; and, if so
2. can the issue be conveniently decided by a jury?

First, the judge must make a determination as to whether one of these issues is at play. If so, the judge is then required to exercise the discretionary jurisdiction contemplated by the subrule. This distinction is important. Convenience is a separate question from the factual determination as to whether there are complexities at play; the fact that a jury trial is not the most convenient mode of trial does not displace the plaintiff’s right to a trial by jury.⁶ If the finding is either that the issues require prolonged examination of documents or accounts, or that the issues require a scientific or local investigation, then the discretion must be exercised in relation to the question of whether the examination or investigation can be made conveniently with a jury.⁷ Convenience does not refer to physical or personal convenience but rather to the proper conduct of the trial; the jury must be able to understand the issues, the evidence, the submissions and the judge’s charge. ⁸ In exercising this discretion, there are a multitude of factors the court should consider, including (but not limited to):

1. the expected length of the trial;
2. the number of experts to be called;
3. the volume of expert evidence;
4. the nature and character of expert evidence;
5. the extent to which experts disagree;
6. how the trier of fact will resolve the disagreements between or among experts, including whether there will be resort to scientific literature;
7. the extent to which the trier of fact will have to understand unfamiliar medical terminology;
8. the number of issues the trier of fact will have to resolve;
9. the character of the issues; and
10. the complexities that might arise from interaction between or among issues.⁹

The Verdict – Issue 170 / Fall 2021

This is the final article in our 8-part series on medical malpractice litigation published in the Verdict law journal. In this article Susanne Raab reviews the physicians’ obligation to disclose to their patients when a medical error occurs in the provision of their health care, and also examines the consequences that flow from a failure to make these required disclosures.

This is the final part of our 8-part series on the anatomy of a medical negligence claim within which we review the following topics:

• The Doctor-Patient Relationship and Duty of Care (the Verdict Issue 163 – Winter 2019)
• Consent (the Verdict Issue 164 – Spring 2020)
• Standard of Care (the Verdict Issue 165 – Summer 2020)
• Defences to Standard of Care (the Verdict Issue 166 – Fall 2020)
• Causation – Basic Principles (the Verdict Issue 167 – Winter 2020)
• Causation – Application (the Verdict Issue 168 – Spring 2021)
• Expert Evidence (the Verdict Issue 169 Summer 2021)
• Disclosure of Errors

Introduction

In this series we have reviewed the law as it relates to a health care provider’s duty of care to their patient as well as an analysis of the standard of care required of health care providers and the various defences available. We have delved into the murky waters of causation – which, while recently clarified by the Supreme Court of Canada remains confounded by the rapid pace of medical and technological advances. At the heart of it all is the patient and the court’s increasing recognition of patient autonomy and the importance of informed consent. We reviewed the standard of disclosure required as well as the unique causation issues that arise in the context of claims based in lack of informed consent. Finally, in recognition of the critical role of expert evidence in proving medical negligence claims, we reviewed the common law and statutory rules relating to the admissibility of expert evidence.

We conclude this series with a topic that looms in the background of all medical malpractice cases – and that is the physician’s duty of disclosure to their patient when things go wrong.¹ When medical errors occur in the provision of health care, physicians have an obligation, both legally and ethically, to disclose such errors to their patients.2
But all too often this does not occur, and the cause of a patient’s poor outcome following surgery or other medical treatment remains unknown until it is discovered by a subsequent healthcare provider, or more commonly, until it is uncovered through the process of litigation.

The purpose of this article is to examine the physician’s duty to disclose medical errors when they occur, and to examine the consequences that flow from a physician’s failure to make adequate disclosure.

As with any claim based in negligence, to be successful a plaintiff must meet four requirements:

1. The defendant must owe the plaintiff a duty of care;
2. The defendant must breach the standard of care;
3. The plaintiff must suffer an injury or loss; and
4. The defendant’s conduct must have been the actual and legal cause of the plaintiff’s injury.³

The Verdict – Issue 169 / Summer 2021

This is the seventh article in our 8-part series on medical malpractice litigation published in the Verdict law journal. In this article Paul McGivern reviews how the use of experts at trial has evolved over the years, and discusses recent developments in the law.

• The Doctor-Patient Relationship and Duty of Care(Verdict Issue 163 – Winter 2019)
• Consent (the Verdict Issue 164 – Spring 2020)
• Standard of Care (the Verdict Issue 165 – Summer 2020)
• Defences to a Claim of a Breach of the Standard of Care (the Verdict Issue 166 – Fall 2020)
• Causation – Basic Principles (the Verdict Issue 167 – Winter 2020)
• Causation – Application (the Verdict Issue 168 – Spring 2021)
• Expert Evidence
• Disclosure of Errors

In previous articles, we outlined the essential criteria in a medical negligence action including the requirements to prove a duty of care owed by the defendant to the patient, a breach of the standard of care on the part of the defendant and a causal link between the breach of the standard of care and the plaintiff’s injuries and the basic rules for establishing and applying causation. In this article, we will highlight both common law and statutory rules relating to the admissibility of expert evidence and identify issues counsel need to deal with in leading expert evidence at trial.

It is hard to remember a time when expert evidence was not an integral part of almost every case. Over the decades counsel have found that experts were an important part of proving our cases, indeed, an essential part in most cases. The last thing any lawyer wanted to see was a judgment dismissing our case on the basis that no expert evidence was led to prove a critical aspect of our case. Expert evidence was persuasive and compelling, all the more so when the expert was willing to become part of “the team”, advocating on behalf of our clients. The use of expert evidence became ubiquitous. The judiciary largely went along with this, probably to avoid the risk of a new trial if the evidence was rejected (see, for example, Morrison v Hicks (1991) 80 DLR (4th) 659 (BCCA) where the court ordered a new trial after the trial judge refused to allow further evidence on a point that had already been canvassed in other evidence at trial).

This led to a number of abuses, most particularly the phenomenon of the “expert as advocate”.

Our courts have struggled to reign in this problem with limited success. Starting in 2010, the legislature amended the Rules to strengthen the requirements for the admissibility of expert evidence. In 2014 and again in 2015, the Supreme Court of Canada weighed in to address the issue in judgements which have given the courts new impetus to control the type and manner of expert evidence and to reject evidence which does not meet appropriate criteria.

The purpose of this paper is to highlight both common law and statutory rules relating to the admissibility of expert evidence and to deal with some of the more prominent issues counsel need to deal with in assessing whether and how to lead expert evidence.