Halifax Medical Malpractice Lawyer Blog

Reasons for judgement were released recently in the case of McLintock v. Alidina.

The plaintiff, Ann McLintock alleged negligence on the part of her family physician, Dr. Alidina, because Alidina hd 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 someway 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.

Causation

As I have explained in previous posts, in addition to proving that the doctor was negligent (failed to meet the standard of care) a plaintiff in a medical malpractice claim is also required to prove causation: that the doctor’s negligence caused the injury that is the source of the litigation.

Battle of Experts

There was conflicting expert opinion before the court as to whether or not an earlier diagnosis of Ms. McLintock’s 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 conned 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 radio therapy 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.

Conclusion

I’ve been contacted by hundreds of persons who believe they have been a victim of medical malpractice. In reviewing the cases we often find evidence that the defendant doctors, hospitals or nurses failed to meet the standard of care. In other words, that there was negligence.

However, 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.

Continue reading " Busy Doctors Do Not Have a Lower Standard of Care: Ontario Supreme Court " »

There are three things that an injured patient must prove in order to be entitled to receive compensation:

1. What is the standard of care?

2. Did the defendant fail to meet the standard of care?

3. Did the failure (if there is one) cause the patient’s injuries?

Specialists Held to Higher Standard

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. See for example ter Neuzen v. Korn.

As far back as 1954, the Supreme Court of Canada stated this principle clearly in Wilson v. Swanson:

What the surgeon by his ordinary engagement undertakes with the patient is that he possesses the skill, common knowledge and judgement of the generality or average of the special group or class of technicians to which he belongs and will faithfully exercise them.

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.

Different Standards?

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 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?

The average patient in the hospital has no idea whether the people that are providing them with medical care are doctors, specialists, or medical students.

It can be unsettling to learn that the doctors who are treating you are actually medical students and you are a part of their training and education.

Good News

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.

Want to Learn More?

If you want to learn more about medical malpractice claims, you need to read a copy of my book, The Consumer’s Guide to Medical Malpractice Claims in Canada: Why 98% of Canadian Medical Malpractice Victims Never Receive a Penny in Compensation.

You can contact me through this blog or call toll free in Atlantic Canada 1-877-423-2050 and we will send you a copy, free, anywhere in the Maritimes.