Contributory Negligence in Delayed Diagnosis Cases
Allegations of contributory negligence often arise in delayed diagnosis cases, especially where the timeframe between symptoms and proper diagnosis is long, as there are many opportunities for the patient’s conduct to come into play.
Kahlon v. Vancouver Coastal Health Authority11 involved the delayed diagnosis of tuberculosis meningitis that led to the plaintiff suffering a severe brain injury which rendered him in need of constant care. The plaintiff had a history of low back pain and was referred to a sports medicine specialist by his family doctor. The sports medicine specialist’s working diagnosis was that the plaintiff had an L5-S1 disc injury and that the prognosis was favorable. The specialist advised him to continue with an abdominal strengthening program and referred him for a CT scan of his lumbar spine to evaluate whether he was suffering from radiculopathy. The specialist wrote to the plaintiff’s family doctor to advise him that he would review the plaintiff after his imaging results were available and would assess progress at that time. Following the CT scan, the plaintiff did not return for an enhanced scan with contrast as requested by the radiologist. The CT scan films were misfiled and not reported on for over a year. The parties agreed that had the films been reported on at the time of the CT scan or shortly after, it would have led to a chain of inquiry that would have resulted in the diagnosis of spinal tuberculosis meningitis months sooner. The plaintiff would have received treatment and recovered without consequence.
The court found that the hospital was negligent in its failure to have a backup system in place to ensure that all radiology films taken were duly reported on. It relied exclusively on a manual system with no back-up system in place to manage human error which was virtually inevitable and which led to the plaintiff’s films being misfiled.
The court found that Mr. Kahlon had not established negligence against the radiologist who was entitled to rely on the systems in place at the hospital to ensure that any necessary follow up took place. The court also found that the sports medicine specialist had met the standard of care by having a system that relied on the patient to return for follow up as this was the standard practice of clinics of this kind, and this standard practice was not itself negligent. In the event that a patient did not make an appointment to return, the results would be reviewed by the physician when received by the clinic and the physician could, at that time, call the patient to attend for follow up. For the system to fail, the patient would either have to fail to attend for the scan or fail to return to the clinic for a follow up appointment and the lab would have to fail
to return the report or otherwise fail to contact the clinic. The court concluded that this was a reasonably effective follow-up system.
