Standard of Care in Medical Malpractice Claims (by John McKiggan Q.C.)
A Brief Review
There are four things that a medical malpractice victim needs to prove in order to succeed in their claim.
1: Standard of Care: The plaintiff must prove what the standard of care is with respect to the medical procedure involved in the claim. In other words, what is the standard expected of a reasonably competent doctor (or nurse or other health care professional) when conducting the medical procedure that may have caused the claimant’s injury?
2: Breach of the Standard of Care: The plaintiff must also prove that the defendant failed to meet the standard of care. In other words, that the care provider did something that a reasonably competent doctor would not have done, or the doctor did not do something that a reasonably competent doctor would have done.
3: Causation: The plaintiff must also prove that the defendant’s breach is what caused the plaintiff’s injuries. Even if the doctor was negligent, if the doctor’s negligence was not the cause of the plaintiff’s injuries, the defendant will not be found liable (responsible) for the plaintiff’s injuries. There is a difference between the scientific cause of an injury and the legal cause of an injury.
4: Damages: Finally, the plaintiff must prove what harms and losses they have suffered as a result of the defendant’s negligence.
Standard of Care Evolves
In September 2010 the Supreme Court of Canada issued a decision refusing to grant leave to hear the appeal of a case from Alberta dealing with standard of care in medical malpractice claims.
The Court of Appeal decision in Nattrass v. Webber reminds us that the practice of medicine is constantly evolving and this may affect the issue of the standard of care.
The Facts: Mr. Nattrass fell and broke his ankle. He had surgery to repair the fracture. The surgery was performed by the defendant physicians, Dr. Webber and Dr. Harley.
Mr. Nattrass was given a blood thinner, Heparin, to prevent unnecessary clotting after his surgery. Dr. Webber and Dr. Harley did not issue any orders to increase the blood tests that Mr. Nattrass was receiving to ensure that he did not have any unusual reactions to the medication.
Unfortunately, Mr. Nattrass developed deep vein thrombosis (DVT) which is an unusual (although well known) adverse reaction to the medication he was receiving. As a result, he ended up having to have both of his legs amputated.
At trial, the judge found that if the doctors had ordered more frequent testing of Mr. Nattrass’ platelet levels, the DVT would have been discovered in time to save Mr. Nattrass’ legs. The trial judge found the defendants negligent.
The Alberta Court of Appeal reversed the decision finding that, on the basis of the evidence led at trial, the standard of care at the time Mr. Nattrass had his surgery, did not require more frequent blood tests.
Not Perfect Care – Just Competent Care
In other words, although the defendant doctors could have done more to prevent Mr. Nattrass’ DVT and subsequent amputations, they met the standard that was required of them at the time Mr. Nattrass was being treated.
No Rear View Mirror in Medical Malpractice Claims
As the saying goes, hindsight is 20/20. It is very easy to look back after a patient has been injured or died to figure out what could have been done differently to prevent the patient’s injury or death. However, the courts do not look at medical malpractice claims in the rear view mirror.
Judges and juries are required to look at the evidence to determine what the standard expected of the doctor was at the time the patient was injured.
Standards of medical practice change over time and counsel must be careful that they lead appropriate evidence and have supporting opinions that establish the standard of care during the appropriate time frame.
Standards Higher for Specialists
The Supreme Court of Canada has clearly stated that doctors who specialize in specific areas of medicine are held to a higher standard of care than doctors in a general or family practice.
As far back as 1954 the Supreme Court said in Wilson v. Swanson:
“What the surgeon by his ordinary engagement undertakes with the patient is that he possesses the skill, common 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 Ter Neuzen v. Korn the Supreme Court of Canada said:
“A doctor’s behavior must be assessed in light of the conduct of other ordinary specialists, who possess a reasonable amount of knowledge, competence and skill expected of professionals in Canada, in that field. A specialist such as the respondent, who holds himself out as possessing a special degree of skill and knowledge, must exercise the degree of skill of an average specialist in his field.”
This well known quote is referenced in every single medical malpractice trial.
“Respectable Minority” Principle a Trap for Malpractice Victims
This principle says that where a doctor’s practice is followed by a “respectable minority” of competent doctors in the same field, a court (or jury) cannot prefer the practice of the majority over the “respectable minority”.
The Ontario Court of Appeal recently had to address this defence in the recent decision of Cleveland v. Whelan.
The Facts: Tyler Cleveland was born in 1996 and blood tests showed on two occasions that he had elevated levels of phenylalanine, an amino acid which in excess quantities can indicate potential for developing phenylketonuria (“PKU”), a congenital disorder which can interfere with normal brain development.
Tyler’s doctor, Dr. Whelan, ordered a third screening test, which showed a normal level of phenylalanine. No further clinical or laboratory investigation was conducted.
Tyler was diagnosed in 1999 with severe PKU. His original screening samples were retested using a more accurate test for phenylalanine. It was found that all three samples had higher levels of phenylalanine than the screening tests would have been able to determine.
Tyler, through his parents, brought an action in negligence against Dr. Whelan. At trial, Dr. Whelan was found liable for negligence, and appealed
There was a respectable minority body of medical opinion that differed from the standard of care testified to by Tyler’s medical experts.
The Court of Appeal examined the law regarding standard of care and the “respectable minority” principle. Fortunately, for Tyler the Court of Appeal did not agree with the defendant’s arguments:
“This is not a case where the trial judge erred by simply preferring one body of medical opinion over another respectable and competing body of medical opinion when considering the appropriate medical practice. This is a case where the trial judge considered and weighed the conflicting testimony of the expert witnesses on the operative standard of care.”
Although the court rejected the defendant’s “respectable minority” defence, the court clearly affirmed the existence of the legal principle.
Medical malpractice claims are difficult enough for injured patients to win. They bear the burden of proving the appropriate standard of care, that there was a breach of the standard of care, and that the defendant’s negligence caused the patients injury or death.
But this decision also reminds counsel that even after they establish the appropriate standard of care, they still have to investigate if there is another, alternate, standard that is followed by a “respectable minority”.
In January of 2011, reasons for judgment were released in the Ontario case of McLintock v. Alidina.
The Facts: The plaintiff, Ann McLintock alleged negligence on the part of her family physician, Dr. Alidina, because Alidina failed to advise the plaintiff of the results of mammogram testing. McLintock had to undergo a course of 25 radiation treatments and surgical intervention as a result of the alleged delay.
Different Standards for Different Doctors?
The case is interesting because the defendant, Dr. Alidina defended the case, in part, on the basis that the standard of care that she was required to meet as a “busy” family practitioner was lower than the standard of care described by the plaintiff’s expert, Dr. Bloom.
Dr. Bloom was the former Chief of Family Medicine at Mount Sinai Hospital in Toronto and, at the time of the trial, was Chief of Family Medicine at the University Health Network (Toronto Western Hospital).
Dr. Bloom testified at trial that a significant portion of his time was devoted to management responsibilities. His clinical practice consisted of four half days and one evening per week. He testified that he saw an average of 14 patients per day.
The defendant, Dr. Alidina testified that she saw an average of 35-50 patients per day.
Alidina claimed that the standard of care required of a busy family doctor was lower than the standard of care required of Dr. Bloom who worked in a major teaching hospital and, by his own evidence, had access to “all of the resources in the world”.
Busy Doctor Defence?
Justice Shaughnessy specifically rejected the “busy doctor” defence.
At Paragraph 67 of his decision Justice Shaughnessy stated:
“I do not accept the defence’s position that the volume and nature of Dr. Bloom’s practice in contrast to that of Dr. Alidina’s in some way defines the standard of practice in notifying a patient of further mammogram views and an ultrasound.
The standard of care applicable to a family physician in 2000 in the Province of Ontario is the same whether the patient attends to Toronto Western Hospital or a Community Clinic in Pickering, Ontario. Dr. Bloom and Dr. Chapman [the defendant’s expert] both agree the standard of care for a family physician is not less for walk-in patients than it is for family patients who have booked appointments… the family physician must provide excellent care which is responsive to the patient’s needs.”
Failed to Meet Standard of Care
The court found that Dr. Alidina failed to have an adequate system in place to notify her patients of the need to follow-up treatment and the results of mammograms and other test results. As a result Dr. Alidina was found to have failed to meet the standard of care expected of a reasonable competent family doctor.
Unfortunately for Ms. McLintock there was conflicting expert opinion before the court as to whether or not an earlier diagnosis of her cancer would have changed the outcome.
Justice Shaughnessy’s conclusion was as follows:
“In the result I find that a balance of probabilities that Dr. Perviz Alidina was negligent in that she fell below the standard of care in falling to notify Ann McLintock of the October 5, 2000 follow up appointment for coned compression mammography views and ultrasound and further in falling to have in place a system of procedure do discuss the abnormal test results with her on the next appointment.
I further conclude that the plaintiff has failed on a balance of probabilities to prove that the plaintiff has any ongoing risk from her radiotherapy and that the prognosis has changed as a result of her delayed diagnosis. Therefore the plaintiff has suffered no damages which are compensable at law.
The plaintiff’s claim is dismissed.”
As the McLintock case points out, the fact that a doctor was negligent does not mean, by itself, that a plaintiff will be successful in a medical malpractice claim.
What About Medical Students?
In many hospitals throughout Canada the primary medical care is provided, not by a specialist, but by medical students who are obtaining further training in their specialty. The medical students, called residents, typically spend one, two, three or four years training to become certified to practice in a particular specialized field of medicine.
The question then becomes if the alleged medical malpractice was committed by a medical student/resident should the student be held to the higher standard of care of the medical specialist or the lower standard of care of the general practitioner?
Medical Student Claims Lower Standard
This is a question that was recently addressed by the Alberta Court of the Queens Bench earlier this year in their reasons in Anderson v. Greene. The plaintiff, Ms. Anderson, alleged she was injured as a result of negligence by two defendants, one of whom, Dr. Abdulhafid, was a fourth year resident of Foothills Medical Centre.
Dr. Abdulhafid did not want to be held to the standard of care of a specialist in obstetric and gynaecological medicine. Rather, he argued he should be “held to the standard of a fourth year resident in a five year obstetrics and gynaecology program at the University of Calgary.”
Lack of Training Doesn’t Lower Standard
Justice Erb of the Albert Court of the Queens Bench pointed out that:
While a higher degree of training and experience by the doctor may raise the applicable standard, a lack of training and experience will not lower it.
Justice Erb concluded the issue by stating:
“Here, Dr. Abdulhafid as a fourth year resident in a five year program had undergone seven years of medical education in Libya where he conducted laparoscopic surgery. His testimony disclosed that by second year he had the opportunity to do part of the laparoscopic surgery by making incisions and using the trocars under supervision. On March 5, 2003, he was an experienced physician who had performed many laparoscopies, and therefore held to the standard of an obstetrician and gynaecologist.”
What Does it Mean?
It is at least reassuring to know that if a medical student makes a mistake that leads to an injury, they will not be able to avoid responsibility by arguing that they should be held to a lower standard of care.
Think We Can Help You?
If you think you or a family member may have been a victim of medical malpractice contact medical malpractice lawyer John McKiggan Q.C. online or by calling (877) 423-2050 or toll free at (877) 423-2050.
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