In Justice van Rensburg’s analysis, to determine whether Dr. Ward used the LigaSure within two millimeters of the ureter, the trial judge first had to determine how the injury happened. The trial judge explained why he rejected the defendant’s experts’ proposed alternative explanations of the injury and explained why he accepted the evidence of Ms. Armstrong’s expert: that the ureter was injured by thermal spread from the LigaSure. It then followed that Dr. Ward had, in fact, used the device within two millimeters of the ureter, contrary to his own evidence. No non-negligent accidental scenarios were put to any of the experts at trial, and Justice van Rensburg further explained that a trial judge is not obliged to consider potential non-negligent causes where there is no evidentiary foundation to do so.
One of the serious problems with the Court of Appeal’s decision was that it could be read as holding that as long as the defendant physician was trying to do his or her best, there could be no finding of negligence:
“…However, the trial judge did not confine his standard of care to knowing, intentional, and unnecessary deployment, whether intentional or accidental, breaches of the standard of care. Avoiding accidental deployment within two millimeters of the ureter cannot be fairly described as a step that prudent surgeons would take. Instead, it is a goal or result that is to be pursued. Put otherwise, trying to maintain a safe distance is a step one takes; successfully achieving this is a goal.”2
The case was then argued at the Supreme Court of Canada. The SCC allowed the appeal for the dissenting reasons of Justice van Rensburg.
The decision has important implications for plaintiffs in medical malpractice actions. The judgement confirms that the plaintiff does not have to explain why all non-negligent causes of the injury can be ruled out if the defense does not raise these at trial. Further, had the majority of the Court of Appeal’s decision been upheld, it could be read to say that taking some of the steps required to meet the standard of care versus all necessary steps would be sufficient to meet the standard of care. Presumably, a defendant could testify that they tried to meet the standard of care but were not successful and that would be sufficient to meet the standard of care – a defense to almost any claim of negligence, making succeeding in such cases near impossible for plaintiffs.
Lastly, the SCC’s ruling confirms that it is not always necessary to address standard of care prior to causation – at times, court will need to determine what happened in order to resolve whether the standard of care has been breached. Determining causation prior to the standard of care does not necessarily mean that the trier of fact adopted a “results-oriented approach” which necessitated a finding of negligence.
Surgical Negligence Pitfalls
The leading case which defines the standard of care for a skilled surgeon is Wilson v. Swanson, [1956] S.C.R. 804, 1956 CanLII 1 (SCC), at 811-812:
- …What the surgeon by his ordinary engagement undertakes with the patient is that he possesses the skill, knowledge and judgment of the generality or average of the special group or class of technicians to which he belongs and will faithfully exercise them. In a given situation some may differ from others in that exercise, depending on the significance they attribute to the different factors in the light of their own experience. The dynamics of the human body of each individual are themselves individual and there are lines of doubt and uncertainty at which a clear course of action may be precluded.
As the above quote illustrates, many factors come into play in surgical negligence cases, such as a physician’s clinical judgement, surgical technique and individual patient considerations. Surgical negligence cases are rarely as straight-forward as a surgery performed on a wrong body part, or instruments left inside a patient. Indeed, there are many challenges for plaintiffs particular to these types of cases: that the injury was a known risk of the surgery, a contention from the defendant that avoiding injury in the situation would require a standard of perfection, or in an informed
consent case, that the plaintiff would have consented anyways if they had been properly informed of the risks. Also, since plaintiffs in surgical negligence cases often have an injury which necessitated the surgery in the first place, they are open to allegations that their injuries were the result of pre-existing complications or are otherwise unrelated to the surgical injury.
