The BCCA found that the trial judge’s conclusion that “the simple precaution that Dr. Southerland should have taken was to ensure that he not let his instruments penetrate past the annulus fibrosus”3 indicated he improperly focused only on the result of the surgery and not on the precise manner in which the defendant failed to meet the appropriate standard of care. The BCCA held that “determining negligence by focusing solely on the result of the medical treatment rather than the manner in which it was performed is improper and amounts to imposing a standard of excellence”4 that was impossible to rebut, and ordered a new trial.5 As Armstrong shows, it is important for the plaintiff in surgical negligence cases to adduce evidence that had standard of care been met, the injury could not have happened.
Informed Consent
Informed consent often comes into play in cases involving elective surgery. In Kooijman v. Bradshaw, 2016 BCSC 2316, Ms. Kooijman alleged that defendant pathologists wrongly diagnosed her as having cancer in her lymph nodes for which she underwent left modified radical neck dissection surgery, during which her spinal accessory nerve (SAN) was damaged resulting in debilitating health issues. The plaintiff alleged that had the defendants properly diagnosed the lymph nodes as “suspicious” rather than positive for malignancy, she would have undergone alternative procedures, such as a biopsy, as opposed to the surgery performed. The defendants alleged that that plaintiff would have undergone surgery anyways, or if she did opt for a biopsy, the risk of damage to the SAN was equally likely.
The court applied the modified objective test of what a reasonable patient would have done in the circumstances, and concluded that Ms. Kooijman would have proceeded with the surgery in any event due to several factors, including that the surgeon would have recommended the surgery even if the diagnosis was suspicious, as well as Ms. Kooijman’s concern about her family history of cancer and her own history of cancer.
Informed consent cases are always challenging, and usually require a plaintiff prove that their particular circumstances make them unlikely to accept a doctor’s recommendation, or that their circumstances made them particularly adverse to the risks of the procedure.
Impact of Pre-Existing Issues
It is essential in any medical malpractice case that the plaintiff is able to tie the negligent act to the resultant injury and the plaintiff’s ultimate outcome. This is especially true in surgical cases where the plaintiff may have been experiencing issues which necessitated the surgery in the first place.
In Keech v. Chang, 2009 CanLII 18293, the defendant anesthetist was found to have negligently pierced Ms. Keech’s spinal cord while administering a combined spinal-epidural anesthetic in preparation for hip replacement surgery. The plaintiff alleged that this negligence caused permanent neurological deficits, depression, anxiety and sleep deprivation, which resulted in a loss of income and future care costs. Midway through the trial, the defendant admitted she pierced the spinal cord resulting in a lesion which caused Ms. Keech some permanent numbness, but argued that this injury was slight and did not cause any of the other injuries for which Ms. Keech was seeking damages.
The court found that the spinal lesion caused permanent paresthesia in the plaintiff’s genital region, resulting in bowel urgency and rare episodes of incontinence. However, the court found that the plaintiff’s low back and leg pain was largely identical to the back and leg problems she had been complaining about for years before the surgery, and any alleged sleeplessness due to pain was also therefore not causally linked to lesion. The court also determined that Ms. Keech had significant pre-existing psychiatric problems and that the lesion did not cause any additional depression or anxiety beyond this. The court awarded the plaintiff $85,000 in general damages but held that she had not established
any income loss or future care costs as a result of the spinal lesion.
As the above cases establish, there are many challenges and pitfalls specific to surgical negligence cases. If the Ontario Court of Appeal decision in Armstrong was left to stand, proving negligence in such cases would be extremely difficult for plaintiffs as the defendant would only have to prove that they tried to meet the standard of care, and took some steps to do so. Thankfully, this decision was overturned by the Supreme Court of Canada. It is hopeful that this decision assists plaintiffs in the uphill battle they already face in such claims.
- Armstrong v. Royal Victoria Hospital, 2018 ONSC 2439 at paras. 81-82.
- Armstrong v. Royal Victoria Hospital, 2019 ONCA 963 at para. 48.
- Carlsen at 37
- Carlsen at 13
- The plaintiff was successful following a new trial in this matter: Carlsen v. Southerland, 2008 BCSC 1772
