“Common Sense” Does Not Apply In Medical Malpractice Claims

by John McKiggan

The Ontario Court of Appeal recently released its decision in Rowlands v. Wright allowing an appeal by a surgeon who had been found liable for medical malpractice at trail.

Dr. Wright performed laparoscopic gallbladder surgery on Ms. Rowlands to remove her gallbladder. Dr. Wright cut the patient’s common bile duct mistakenly believing it was the cystic duct. Ms. Rowlands brought a medical malpractice claim seeking compensation from Dr. Wright and was successful at trial.

In determining whether Dr. Wright had met the standard of care required of a reasonably competent surgeon the trial judge stated:

“…a finder of fact may use common sense in assessing the surgeon’s conduct as he followed the standard medical practice described by the experts.”

The trial judge determined that, as a matter of common sense, a doctor should make sure they are aware of what they are cutting when surgery is performed.

Standard of Care is is not Common Sense

The Court of Appeal ruled that expert’s evidence at the trial determined that the standard of care required a surgeon to obtain a “critical view” of the area being operated on. It is not necessary for the surgeon to be certain exactly what organ they are cutting.

As a result, the Court of Appeal dismissed the finding of liability against the defendant and a new trial was ordered.

I have clients come to see me who are certain what happened to them is the result of medical malpractice. Sometimes when I hear their stories it seems to me that, based on common sense, the doctor must have done something wrong.

However, in order to win a medical malpractice claim, the plaintiff must establish, on the balance of probabilities, what the standard of care required of the doctor actually was, that the doctor breached the standard of care, and that the breach is what caused the plaintiff’s injury.

I have had many cases where independent neutral experts have told me that, despite what seems to be “common sense” the standard of care was not breached and therefore there was no medical malpractice. This case simply reinforces the importance of getting an appropriate expert opinion early on in the preparation of a medical malpractice claim.

If you or a loved one have suffered injuries that you think may be due to medical malpractice you can contact me through this blog or by calling toll free in Atlantic Canada 1-888-647-7201 for a free 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.

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