Whether physicians, nurses, hospitals or healthcare providers are found liable in medical malpractice lawsuits depends on two issues: whether their care fell below (or breached) the standard of care, and if so, whether that breach of the standard of care caused the poor outcome. This article summarizes five of the leading cases on these two issues.
1. Standard of a reasonable physician: Sylvester v Crits et al., 1956 CanLII 34 (ON CA), aff’d 1956 CanLII 29 (SCC),  SCR 991
The standard of care is that of a reasonable physician in the circumstances. The Court of Appeal for Ontario in Sylvester v Crits et al. set out the seminal statement on standard of care applicable to physicians as follows, and this was later endorsed by the Supreme Court of Canada:
Every medical practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. He is bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same experience and standing, and if he holds himself out as a specialist, a higher degree of skill is required of him than one who does not profess to be so qualified by special training and ability.
At issue was whether the Defendant anesthesiologist was liable after an explosion caused severe burns to the infant Plaintiff during a tonsillectomy. The Court of Appeal reversed the trial judge’s decision to dismiss the action against the anesthesiologist and found that the anesthesiologist had been negligent in not turning off the oxygen immediately after filling the bag for ventilation and not placing the canister of ether on the floor away from the boy’s head.
2. Negligence not determined with hindsight: Lapointe v Hôpital Le Gardeur, 1992 CanLII 119 (SCC)
The actions of physicians are to be assessed based on the information available to them at the time and not with the benefit of hindsight. The Supreme Court of Canada in Lapointe v Hôpital Le Gardeur held that:
[C]ourts should be careful not to rely upon the perfect vision afforded by hindsight. In order to evaluate a particular exercise of judgment fairly, the doctor’s limited ability to foresee future events when determining a course of conduct must be borne in mind. Otherwise, the doctor will not be assessed according to the norms of the average doctor of reasonable ability in the same circumstances, but rather will be held accountable for mistakes that are apparent only after the fact.
At issue was whether an emergency physician was liable after ordering the immediate transfer of an infant Plaintiff with a severe laceration to her arm before administering a blood transfusion. Upon arrival at the pediatric hospital, the child suffered a massive cardiac arrest resulting in a severe brain injury. The Supreme Court of Canada overturned the Court of Appeal decision and reinstated the trial judge’s decision to dismiss the action. From the expert evidence, the trial judge found that the decision to order the immediate transfer was sound based on the information available to the Defendant at the time of ordering the transfer.
3. Specialists assessed by the standard of specialists: Ter Neuzen v Korn, 1995 CanLII 72 (SCC)
Consistent with Lapointe, specialists are held to the standard of specialists in their fields at the relevant time period. The Supreme Court of Canada in in Ter Neuzen v Korn held that:
It is well settled that physicians have a duty to conduct their practice in accordance with the conduct of a prudent and diligent doctor in the same circumstances. In the case of a specialist, such as a gynecologist and obstetrician, the doctor’s behaviour must be assessed in light of the conduct of other ordinary specialists, who possess a reasonable level 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.
At issue was whether the Defendant obstetrician and gynecologist was liable for a patient of his contracting HIV after he performed an artificial insemination procedure. The Supreme Court of Canada upheld the Court of Appeal decision to reverse the verdict of liability against the Defendant. The state of the medical knowledge at the time was uncertain as to the risk of contracting HIV from artificial insemination and this did not become a known risk until over a year after the incident.
4. “But for” causation: Clements v Clements, 2012 SCC 32 (CanLII)
It must be more likely than not that the outcome would have been avoided had the Defendant not breached the standard of care. The Supreme Court of Canada most recently set out this seminal statement of law in Clements v Clements:
[P]roof by an injured plaintiff that a defendant was negligent does not make that defendant liable for the loss. The plaintiff must also establish that the defendant’s negligence (breach of the standard of care) caused the injury.
The test for showing causation is the “but for” test. The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. Inherent in the phrase “but for” is the requirement that the defendant’s negligence was necessary to bring about the injury ― in other words that the injury would not have occurred without the defendant’s negligence.
At issue was whether the husband driver of a motorcycle was liable for severe injuries to his wife when he lost control of his motorcycle after he exceeded the speed limit and a nail fell out of the rear-wheel. The Supreme Court of Canada ordered a new trial after the Court of Appeal reversed the trial judge’s determination on liability based on finding that the wife’s injuries were the result of the husband’s negligence even though “but for” causation was not established. This decision remains the leading case on causation in medical malpractice actions even though it concerned a motorcycle crash.
5. Modified objective test for informed consent: Reibl v Hughes, 1980 CanLII 23 (SCC)
Whether there was a lack of informed consent for a medical procedure is assessed from the perspective of a reasonable person in the Plaintiff’s circumstances. The Supreme Court of Canada in Reibl v Hughes set out this modified objective test for determining informed consent as follows:
In saying that the test is based on the decision that a reasonable person in the patient’s position would have made, I should make it clear that the patient’s particular concerns must also be reasonably based… In short, although account must be taken of a patient’s particular position, a position which will vary with the patient, it must be objectively assessed in terms of reasonableness.
At issue was whether the Defendant neurosurgeon had obtained informed consent from the Plaintiff for an elective brain surgery. The Plaintiff underwent the surgery and later suffered a massive stroke resulting in right-sided paralysis. The Supreme Court of Canada reversed the Court of Appeal decision and restored the trial verdict of liability against the neurosurgeon. The Court found that a reasonable person in the Plaintiff’s position would not have undergone the surgery had he or she been properly informed of the risks.
There are of course many more cases that refine the general principles set out in these five decisions and address the widely varying facts that can arise in medical malpractice lawsuits. If you or a loved one has been injured as a result of medical malpractice, contact a lawyer at Bogoroch & Associates for a free consultation.
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