Birth Trauma Claims
I had the pleasure of being invited to speak at the Birth Trauma litigation conference in Toronto this year. The conference was fascinating and I learned a lot from the other lawyers, physicians and nurses who presented at the conference.
I was asked to speak on the topic of Standard of Care in Obstetric Malpractice Cases.
I have had a number of calls from other lawyers asking for a copy of my paper so I thought it might be helpful to post excerpts here.
I propose to briefly touch upon the broad statements the Supreme Court has made regarding the issue of standard of care in medical malpractice claims generally, highlight how the courts have addressed this issue in obstetric cases and finally discuss the recent decision in Ediger (Guardian Ad Litem) v. Johnston, and ask the question whether the decision in Ediger has affirmed a new standard of care applicable to emergency cesarean births.
Anyone involved in medical malpractice litigation is familiar with statements from the Supreme Court of Canada in Wilson v. Swanson, and Sylvester v. Crits.
“[Physicians are] 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.”
Battle of Experts
Obstetric malpractice cases are frequently a battle of the experts in the inevitable conflict between professional witnesses called by opposing parties with respect to the appropriate standard of care.
“Given the number of available methods of treatment from which medical professionals must at times choose, and the distinction between error and fault, a doctor will not be found liable if the diagnosis and treatment given to a patient correspond to those recognized by medical science at the time even in the face of competing theories.”
Ter Neuzen v. Korn
However, Ter Neuzen also goes on to say health care professionals may still be found negligent even when acting within the generally accepted standard of care if the standard of practice itself is found to be negligent. The Court noted an accepted practice may be found to be negligent where the standard contains risks that are obvious to anyone without the aid of diagnostic or clinical expertise.
I believe this well accepted statement of law is relevant when considering the importance of the Supreme Court’s ruling in Ediger.
No Rearview Mirror
As the saying goes, hindsight is 20/20. The Supreme Court has cautioned that a trier of fact must be careful not to rely on the perfect vision provided by hindsight when assessing standard of care.
For example, in Lapointe et al. v. Chevrette, the Court stated this:
“In order to evaluate a particular exercise of [a doctor’s] judgment fairly, the doctor's limited ability to foresee future events when determining a course of conduct must be borne in mind.”
In Wilson, the Supreme Court of Canada stated:
“A medical man must possess and use that reasonable degree of learning and skill ordinarily possessed by practitioners in similar communities in similar cases.”
Is there a different standard of care for rural practitioners when compared to those practicing in an urban setting or teaching hospital? Admittedly, this is not an issue limited to obstetric claims.
The existence of a locality rule with respect to the standard of care has been found in obstetric cases in British Columbia like Simpson v. Holervich, a decision of their Court of Appeal, as well as non-obstetric cases like Mitchell v. Block, a decision of the Alberta Court of Queen’s Bench.
In yhe Newfoundland and Labrador decision Briffet v. Gander & District Hospital Board, the court held that “similar communities” means a province-wide standard:
“…viewing the standard of care on a local or small geographic basis entails the risk of setting up varying standards not truly representative of a proper standard of medical care.”
While the locality argument has not been expressly over ruled by any appellant court, the issue, at least in Ontario, appears to have been put to bed by the decision of Power J. in Crawford (Litigation Guardian of) v. Penny.
The defendant physician argued, among other things, that as a rural general practitioner, he could not be expected to provide the same level of care provided by an obstetric unit in a major urban center.
Power J. was critical of any rule that countenanced an inferior quality of medical care for rural Canadians. Power J. stated:
“It would be a sad comment indeed for the law to imply a lesser standard of care in some communities as opposed to others. This is not to say, however, that all physicians possess the same ability and have access to the same resources. These physicians and localities must recognize their limitations and refer patients, where possible, to experts and to larger medical facilities.”
Simply put, the courts recognize a physician in Meat Cove Cape Breton may not be able to get an MRI or CT scan done as quickly as a doctor in Halifax, Nova Scotia. However, both doctors are expected to know the basic standards of obstetric medicine and also recognize when they are faced with a problem beyond their expertise.
Busy Doctor Standard
Despite Crawford v. Penny, the locality rule, under a different name, still tends to come up frequently in medical malpractice litigation.
In the recent Ontario decision of McLintock v. Alidina, a non-obstetric case, the defendants raised what I call the “busy doctor” defense. The plaintiff, Anne McLintock, alleged negligence on the part of her family physician, Dr. Alidina, because Alidina failed to advise the plaintiff of the results of her mammogram testing. McLintock had to undergo a course of 25 radiation treatments and surgical intervention as a result of the alleged delay.
Alidina defended the claim, in part, on the basis that the standard of care 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.
Bloom was former Chief of Family Medicine at Mount Sinai Hospital in Toronto and, at the time of trial, was Chief of Family Medicine at the University Health Network (Toronto Western Hospital).
Bloom testified that a significant portion of his time was devoted to management responsibilities and his clinical practice consisted of four half days and one evening per week. His evidence was that he saw on average 14 patients per day and that as a result of his association with Toronto Western Hospital, he had access to “all of the resources in the world.”
Dr. Alidina testified, on the other hand, that she saw on average 35 to 50 patients per day.
Alidina claimed 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.
Shaughnessy J. specifically rejected the busy-doctor standard. At paragraph 67 of his decision, Shaughnessy stated:
“I do not accept the defense position that the volume and nature of Dr. Bloom’s practice in contrast to that of Dr. Alidina 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 the Toronto Western Hospital or a community clinic in Pickering, Ontario. Dr. Bloom and Dr. Chapman [the defendant’s expert] both agreed 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 needs.”
Unfortunately for Ms. McLintock, her claim was dismissed on the basis of her failure to establish damages arising from Alidina’s breach of the standard of care.
Significant disagreements between experts are common in obstetric malpractice cases.
Inter-observer variability, where different experts have different opinions regarding the interpretation of electronic fetal monitoring or imaging results, is the norm.
However, counsel must also be aware of the concept on intra-observer variability where the same physician may have a different opinion regarding the interpretation of the same diagnostic test when considered at a later date.
A relatively recent decision of the British Columbia Supreme Court is a good example. In Lotocky et al. v. Markle et al, Macaulay J. had to consider the opinions of various experts who offered different interpretations of a fetal heart monitor strip taken during a non-stress test.
The plaintiffs’ position was that the non-stress test was equivocal and should have resulted in further follow-up by the attending physician.
J. Macaulay reflected on the difficulty faced by judges in similar circumstances:
“The authorities referred to in my standard of care discussion are of particular significance when I consider the question of intra-observer variability as it relates to the interpretation of August 18 NST strip. Numerous experts have viewed the strip. They offered a significantly different range of interpretations of the same data, without regard to other data, including the auditory signals associated with the NST itself that an experienced nurse would pay attention to. … Even if I preferred the overall interpretation of any of the plaintiffs’ experts to that of Nurse Callander or any defence expert, I am not permitted to choose between mutually acceptable approaches just because I prefer one result over the other.”
Experts Make or Break Obstetric Cases
When leading evidence with respect to standard of care, it is not sufficient for plaintiff counsel to produce a witness who is merely critical of the defendant’s conduct. Context is important: the evidence must establish, on the balance of probabilities, that the defendant was clearly wrong when considering all of the clinically relevant evidence.
I will publish further excerpts from my paper in future posts....