Discovery Rule for Minors and Memory Issues
The reality of medical malpractice cases involving children is that most of these lawsuits are not brought, and certainly not before the court, until many years after the incident at issue. In A.G.’s case, it was nine years. In other cases, when litigation is not commenced until close to the end of the individual’s limitation period, it can be more than two decades as the limitation period does not run while a plaintiff is a minor. Such temporal distance will inevitably cloud and blur the memory. In addition, the defendants are usually medical providers who have seen dozens of patients by the end of the week, potentially by the end of the day, when they saw the patient. Recalling specific details of every patient interaction would be virtually impossible. This is especially true in the context of a missed diagnosis where the medical provider discharged the patient thinking it was a routine visit and didn’t learn about the catastrophic consequences until being served with a lawsuit many years down the road.
Defendant’s Standard Practice
The plaintiff attempted to attack Dr. Rivera’s testimony by arguing that it was quite detailed regarding all that she did in her interactions with Ms. Qu and she could not possibly remember such detail of a routine encounter nine years later. This argument was overcome by pointing to her “standard practice.” In recognition of the realities of the imbalance of memory between the provider and the patient in medical cases, the courts have accepted that it is permissible to put significant weight on a physician’s testimony about what their “standard practice” is with respect to patient assessments:5
It is well-established that the court may consider evidence of a medical practitioner’s common or usual practice, and even give it significant weight. The usefulness and admissibility of such evidence was expressed in Belknap v. Meakes, 1989 CanLII 5268, 64 D.L.R. (4th) 452 (B.C.C.A.) as follows:
[39] If a person can say of something he regularly does in his professional life that he invariably does it in a certain way, that surely is evidence and possibly convincing evidence that he did it in that way on the day in question.Accordingly, the court was willing to accept Dr. Rivera’s detailed evidence based on a combination of memory and her standard practice when assessing and caring for patients.
Plaintiff’s Medical Records and Doctor Notes
In the medical context, the reality is that a medical chart is (or is supposed to be) recorded contemporaneously to document the details of the patient encounter. This documentation will include the reported complaint, the patient’s medical history as understood by the medical provider, any observations made during the assessment, lab results, test results, the differential diagnosis of potential explanations for the patient’s symptoms, the medical provider’s plan and any treatment provided. It often includes notes about discussions that occurred and any discharge instructions given. Medical providers have a legal and ethical obligation to create and maintain these records. The intention of the medical chart to provide sufficient details to allow a subsequent medical provider to understand what was discussed, assessed and treated in the previous visit.
