Examples where risk of harm was insufficient to ground a claim
In Focken v. Miller,the extent of the risk to the patient was found to be insufficient to establish liability for failure to respond more diligently to that risk.21 Mr. Focken attended the hospital in the afternoon with bleeding from a pseudoaneurysm in his neck. He was vomiting blood and thick clots. At the hospital he was assessed by an otolaryngologist who determined that he required an embolization to block a blood vessel in his neck that caused the earlier bleeding. Together with an interventional radiologist, the otolaryngologist concluded that the procedure needed to be done urgently, within 24 hours, but that it could wait until 8am the following morning. At the time of that decision, Mr. Focken’s vital signs were stable with no active bleeding. Before the procedure was completed, however, Mr. Focken had another significant bleed in his throat that blocked his airway leading to hypoxic cardiac arrest and ultimately, death.
The plaintiff’s expert described the first bleed as a “sentinel bleed” that warns of a more catastrophic bleed that could occur at any time and requiring immediate treatment. The trial judge preferred the evidence of the defence experts who opined that the embolization could wait because re-bleeding did not appear imminent, he was under close observation and the artery that bled initially was one that leads to less severe bleeding (i.e. not a “sentinel bleed”). Their opinion was that Mr. Focken survived the first bleed at home without medical treatment, so subsequent re-bleeding was not necessarily expected to be catastrophic.
On appeal, the plaintiff argued that the trial judge erred in law “in not assessing standard of care with consideration to the degree of foreseeable risk” to Mr. Focken.22 The Court of Appeal held that expert assessment of the degree of foreseeable risk is essential to the description of applicable professional standards and thus, to the expression of an expert opinion as to the expected standard of care. Judges are therefore entitled to accept expert opinion evidence which has already weighed that degree of foreseeable risk without doing an independent analysis of risk separate from the weighing of the expert evidence. In this case, the foreseeable risk was dictated in part, by where the bleed had likely occurred, which vessel was affected and whether it was likely to progress to a significant tear in the vessel, which would then impact the severity of risk posed by a potential second bleed. The risk to the patient could not be determined without expert assistance. The judge weighed the expert evidence and accepted that of the defendants over the plaintiffs, in part due to information missing from or erroneously assumed in the plaintiff’s expert report. The Court of Appeal held that in doing so, the trial judge appropriately considered the degree of foreseeable risk to the patient when assessing the standard of care.
Both Courts also held that the medical practice of waiting until the morning for the embolization procedure was not one that was so fraught with obvious risk as to be negligent. The medical questions at issue were too complex to fall into that exception. Both Courts observed that in cases where a claim that standard practice is so fraught with obvious risk as to be negligent, “the common thread… is a focus on practical, systems-based, or common-sense considerations rather than substantive medical issues.”23 The Court of Appeal noted that such cases often involved issues of communication or adequacy of follow up arrangements.
