The recent decision of Estate of Sutherland v. London Health Sciences Centre, 2025 ONSC 4483 is an important addition to the growing body of case law demonstrating that inadequate record keeping by a health care professional is generally a breach of the standard of care.
It is not uncommon for a medical professional accused in a lawsuit of failing to do something (e.g. order a test or perform an assessment) to rely on their “usual practice” in asserting that they did in fact perform the necessary action. However, cases like Sutherland show that courts are becoming less tolerant of the “usual practice” assertion when a defendant fails to document the step they should have taken.
Background
In Sutherland, the Plaintiff, Ms. Sutherland, went to London Health Sciences Centre (LHSC) with a urinary tract infection that caused her to suffer confusion. Combined with her advanced age, the confusion caused by Ms. Sutherland’s infection made her a high fall risk. Ms. Sutherland was admitted to the acute care ward and remained confused until she suffered a fall, four days later. In the days following this fall, she was diagnosed with a bleed in her brain known as a subdural hematoma. Unfortunately, Ms. Sutherland passed away before the trial of her action.
LHSC, like many hospitals, has detailed policies and procedures that must be followed for patients who are a fall risk. One of these procedures was that a document called a Fall assessment and intervention flowsheet needed to be filled out for every patient. This document included an assessment of the patient to determine their “total fall risk score”. Depending on the score, numerous steps had to be taken for patients who were at higher risk of falling, like Ms. Sutherland. Unfortunately, the evidence was unequivocal that no flowsheet was filled out at any time prior to Ms. Sutherland’s fall. The case proceeded against the nurses who cared for Ms. Sutherland who failed to take this important step.
The nursing expert who testified on behalf of Ms. Sutherland’s estate told the Court that one of the steps that would have been required for Ms. Sutherland, had the Fall assessment and intervention flowsheet been filled out, was the implementation of a toileting routine to address her risk of falling while going to the bathroom. Because Ms. Sutherland needed to urinate about every 15 minutes at the time of her fall due to her ongoing UTI symptoms, implementing this step was crucial, and there was no evidence it was done. One of the Defendant Nurses testified that based on their “usual practice”, Ms. Sutherland would have been provided assistance when toileting. However, there was no documented plan to confirm this.
Decision at Trial
The Trial Judge found that the Defendant Nurses’ failure to adequately maintain their patient’s chart by including an important hospital-mandated document was a clear breach of the standard of care. Due to the inadequacy of the charting, Her Honour gave very little weight to the Defendants’ evidence about what they would have done, writing that “The defendants have, contrary to their duty to document, deprived the plaintiffs and this Court of useful information” and that she “did not accept the nurses’ evidence of their usual practice as cogent evidence of what other fall prevention interventions were used in the Plaintiff’s care”.
The Trial Judge found, based on the evidence she chose to accept, that failing to assess and document Ms. Sutherland’s specific fall risk factors, and in particular failing to document a toileting routine that was responsive to her needs, fell below the requisite standard of care.
Unfortunately, the case was dismissed because Ms. Sutherland’s estate could not prove “causation” for her damages. The Court accepted evidence from the defence that the hematoma allegedly sustained in the fall was already present, and therefore it could not be established that her outcome would have been different.
Takeaway
This case is an important touchstone for future actions involving a failure to chart. When defendants in a medical malpractice action rely on their “usual practice” to defend against negligence allegations, plaintiff’s counsel must be prepared to explain why such evidence should not be accepted without corroborating documentation. The fact that this claim failed on causation does not diminish its value where a defendant fails to record a step necessary to meet the standard of care. In medicine, there is a saying: “If you didn’t write it down, it didn’t happen.” It is encouraging for patient safety that courts are increasingly applying the same principle.