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.
