Delayed Diagnosis

Conclusion

Advancing a case for delayed diagnosis requires careful consideration of the interplay between the breach of the standard of care and causation. Can the defendant’s misdiagnosis be excused initially? By the time an initial wrong diagnosis becomes actionable negligence, would the plaintiff’s injury have been avoided with proper care, or would they only have lost a chance at a better outcome? Counsel need to gather sufficient expert evidence to establish that had earlier diagnosis been made, the plaintiff would likely have avoided their injury. As well, the conduct of the plaintiff must be considered, especially when there is a long delay between symptoms and diagnosis, such that the plaintiff’s conduct – in attending appointments or follow up tests, or

reporting all relevant symptoms to their physicians – comes into play. This conduct, especially in delayed diagnosis cases, can result in a finding of contributory negligence or worse. In order to avoid contributory negligence arguments or a complete dismissal of the claim, counsel must gather all evidence possible to establish that the plaintiff was acting reasonably in the circumstances given what they knew about their potential diagnoses.

1. Gerald B. Robertson and Ellen I. Picard, Legal Liability of Doctors and Hospitals in Canada, 5^th ed. 2017, p. 377
2. Wade v. Sisters of Saint Joseph of the Diocese of London, [1978] OJ No. 413 at para. 22.
3. 2016 BCSC 938, aff’d 2017 BCCA 234
4. Ibid., at para. 154
5. 1994 CanLII 3068 (BCSC)
6. 1992 CanLII 544 (BCSC), aff’d 1994 CanLII 1553 (BCCA)
7. 2016 BCSC 968
8. [2005] OTC 680, [2005] OJ No 3323 (QL)
9. 2002 CanLII 50091 (ONCA)
10. Ibid., at para. 25
11. 2009 BCSC 922
12. Ibid., at para. 270
13. 1990 CanLII 5950 (ABKB)
14. Ibid., at para. 148