In last week’s blog, we discussed medical negligence where more than one physician or healthcare provider’s actions cause or contributed to an injury – this is termed “causation”. In this week’s blog, we analyze this concept a bit further using the same decision as a basis for further discussion. The rather complex facts of the decision can be reviewed by reading our previous blog.
In coming to a decision in this matter, the Court of Appeal outlined what factors are required to establish malpractice in situations involving multiple healthcare providers.
The Difficulties with Outlining a Single Test for Causation
Every instance of alleged malpractice will be highly fact-specific and unique to that particular injured patient.
As such, it is challenging for courts to come up with a universal legal proposition or test that would apply in the same way every circumstance- the risk is coming up with a test that may be too broad or too narrow to apply in every case, thus having an overall negative impact on how such cases are decided.
Indeed, many hundreds of legal decisions have been issued over the years analyzing the proper test for causation in medical negligence cases.
Here, the Court of Appeal noted that there was a benefit to reviewing all these past cases and distinguishing between “simple” cases involving an injured patient and a single doctor (or other medical professional) and complex cases involving an injured patient and multiple doctors (or other medical professionals).
“Simple” Negligence Actions
The Court of Appeal noted that the standard negligence case is one in which a single doctor is alleged to have negligently done something that resulted in a patient’s injury. To succeed in such a case, that injured patient must:
- Prove that the doctor breached his or her standard of care; and
- Establish causation- that the breach of the standard of care caused the injury.
The “But-For” Test
The Supreme Court of Canada set out what is known as the “but for” test in Clements v Clements (2012), which is the most frequently used test:
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. This is a factual inquiry. If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against the defendant fails. [Emphasis by McLachlin C.J.]
Some Challenges with Even Seemingly “Simple” Cases
As a side note, while the Court calls such cases “simple” negligence actions, the reality is, even these seemingly “simple” cases are very complex, involving thousands of pages of documents, dozens of expert and other witnesses, and many months or even years of trial.
Indeed, the Court of Appeal noted, about causation,
Very few fact situations demonstrate the causal clarity of a game of billiards in which the combinations of balls striking balls can be easily replicated. The closest equivalent would be a simple case involving a single defendant who did something in breach of the standard of care that physically hurt the defendant, where the “but for” test is relatively easy to apply. Consider the cases in which the defendant accidently shoots the plaintiff in a hunting mishap, or where the defendant runs a red light and collides with the plaintiff who suffers physical trauma. Causation is not usually a live issue in such cases because the causal inferences are so easy to draw.
The Court goes on to say that things get infinitely more complicated if the issue is not something a defendant doctor did, but something he or she failed to do in breach of their standard of care. In such cases,
When what is in issue is not the defendant’s act, but an omission, the trier of fact is required to attend to the fact situation as it existed in reality the moment before the defendant’s breach of the standard of care, and then to imagine that the defendant took the action the standard of care obliged her to take, in order to determine whether her doing so would have prevented or reduced the injury. Even though this exercise is bounded significantly by the actual facts, it counts as “factual” because the task is to consider how the events would actually have unfolded had the defendant taken the action she was obliged to take [emphasis added].
Regardless of whether a defendant doctor’s breach of their standard of care is an act or an omission, the trier of fact (i.e. judge or jury) will determine causation.
If the trier of fact determines that the patient would have been injured regardless of what the defendant physician did or failed to do in breach of the standard of care, then the defendant physician did not cause the injury.
However, if the trier of fact infers that the patient would not likely have been injured without the defendant doctor’s act or failure to act, then the “but for” test is satisfied: but for the defendant doctor’s act or omission, the patient would not have been injured. The defendant doctor’s fault, which justifies their liability, is therefore established.
Negligence Involving Multiple Defendants
Unfortunately, in many medical malpractice cases, the facts of what occurred are often complex and involve multiple individuals, multiple injuries, and multiple possible causes of injury, among other factors. Delayed diagnosis cases, such as this one, can involve all these complex factors.
In creating the “but for test”, the Supreme Court of Canada took the view that, even in such complex cases, the test applied, noting:
In some cases, an injury — the loss for which the plaintiff claims compensation — may flow from a number of different negligent acts committed by different actors, each of which is a necessary or “but for” cause of the injury. In such cases, the defendants are said to be jointly and severally liable. The judge or jury then apportions liability according to the degree of fault of each defendant pursuant to contributory negligence legislation.
It is important to reaffirm that in the usual case of multiple agents or actors, the traditional “but for” test still applies. The question, as discussed earlier, is whether the plaintiff has shown that one or more of the defendants’ negligence was a necessary cause of the injury. Degrees of fault are reflected in calculations made under contributory negligence legislation.
The Court of Appeal noted, that despite the above, the Supreme Court had never considered cases beyond those involving “simple” negligence (i.e. one doctor/caregiver injuring one patient).
The Court went on to say that in this case, the lower court’s cognitive process in reasoning through causation did not unfold as simply as the but for doctrine would suggest it should.
Causation in Delayed Diagnosis Cases Involving Multiple Caregivers
In this case, as in many other medical malpractice cases, the starting point of the causation analysis was the injured patient’s claim that his injuries had been caused by delay in diagnosis and subsequent treatment. Specifically, the patient’s position was that had his anastomotic leak been detected and treated on a timely basis, he would not have suffered his injuries.
At trial, the jury had found that the surgeon, senior residents, nurses and hospital had variously, among other things:
- Failed to adequately hand off responsibility to follow up on bloodwork;
- Failed to document a complete assessment in the chart;
- Failed to follow its own “turnaround time policy”;
- Did not communicate appropriately;
- Failed to begin antibiotics within the first hour of recognizing severe sepsis.
Critically, the jury did not find that any of these breaches of the standard of care by any of the staff or hospital caused the injuries for which the patient had claimed compensation. The patient, his wife, and his family (the appellants) appealed this decision.
On appeal, the appellants argued that the jury questions and jury instructions at the original trial had proceeded based on the wrong understanding of causation in the context of delayed diagnosis involving multiple caregivers. They further argued that a “global but-for” test should have been applied (i.e. causation should have been determined globally in relation to all of the caregivers and the question should have been whether the entire team at Sunnybrook was at fault).
In response, the surgeon, senior residents, nurses and hospital (the respondents) had argued that such a test was novel and had never been addressed at trial, but the appellants’ lawyer had at no time argued that the jury should be asked a causation question globally in relation to all defendants.
The Appeal Decision
The Court of Appeal dismissed the appeal. The Court of Appeal did not recognize a global “but-for” test.
Implications of this Decision
The Court of Appeal noted that this case was important for two reasons:
- The implications of the appellants’ “global but for” test had not been thought through during the first trial and deserved to be re-addressed in more detail; and
- The Court felt that it had a responsibility to provide assistance to trial judges and lawyers dealing with cases involving multiple tortfeasors going forward.
The appellant’s requested leave to appeal to the Supreme Court of Canada, but that leave was denied.
For the sake of completeness, we will mention that the Supreme Court of Canada already articulated another test called the “material contribution” test.
How Can a Medical Malpractice Lawyer Help?
If you have been injured and you believe it is the result of negligence or error on the part of a doctor, surgeon, nurse, or any other healthcare professional (or believe it was the cumulative result or error or negligence on the part of several medical professionals), contact Sommers Roth & Elmaleh.
Victims of medical malpractice are often not informed that an injury they have suffered in a hospital, during a medical procedure, or during treatment was preventable, or that it should be investigated because they may be entitled to compensation. Many of our clients eventually come to the painful realization that they have a seriously disabled child or family member who will need extensive care, assistance and support throughout the rest of their lives. This is especially true for cases like birth injuries (including brain injury/cerebral palsy), surgical errors, misdiagnosis, or missed diagnoses like cancer.
Every case is different but at Sommers Roth & Elmaleh, we pride ourselves in being successful in cases that other law firms refuse to take or believed will be unsuccessful. Having 40+ years of trial experience, when we are retained by clients we are ready to go with them all the way. We leave no stone unturned in our investigation and resolutely represent our clients in the most difficult circumstances. Our team of exceptional lawyers takes care of families in some of the darkest times of their life, so that families can take care of themselves and begin to move forward.
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