Doctor’s “Error in Judgment” is not Negligence

by John McKiggan

Mistakes May Not Be Negligence

The Ontario Court of Appeal has ruled that a doctor’s “error in judgment” was not evidence of negligence.

Roger Lawrence was admitted to the Welland Hospital as a result of severe stomach pains. The physician treating him concluded that he was suffering from gallbladder colic. The following day the surgeon performed a laparoscopic cholecystectomy.

Over the next 12 days Mr. Lawrence’s condition alternately improved and deteriorated. He began to show signs of distress and was air lifted to Mount Sinai Hospital where he eventually died of necrotizing pancreatitis.

Standard of Care

As is usually the case in medical malpractice claims there were different opinions from the plaintiff’s experts and the defendant’s experts as to whether the defendant surgeon met the standard of care required of the reasonably competent doctor.

Treatment “Reasonable”

The opinion of the doctors called on behalf of the defendant was that the doctor’s approach to Mr. Lawrence’s treatment was “reasonable” and met the expected standard of practice.

At issue was the doctor’s decision to wait and see how Mr. Lawrence’s condition improved (or deteriorated) before taking further action.

Causation Not Proven

It was not clear from the evidence presented by the plaintiff at trial that earlier investigation or alternate treatment would have changed the outcome in Mr. Lawrence’s case. In other words, the plaintiff didn’t prove that the alleged mistake caused Mr. Lawrence’s death.

Consequently the trial judge ruled that the plaintiff had not established that the defendant was guilty of medical malpractice. The Court of Appeal upheld the trial judge’s decision and stated:

“In our view, the trial judge made no such error in finding not only that the respondent’s treatment of Mr. Lawrence did not fall below the standard of care but also that causation had not been established”

Mistakes Evidence of Negligence Not Proof of Negligence

This case is a perfect example of something that is often difficult to explain to patients who have been seriously injured or family members who have lost a loved one. Just because a doctor makes a mistake does not necessarily mean the doctor has committed medical malpractice.

An error of judgment may be evidence of negligence but an error in judgment is not, by itself, negligent. A plaintiff must show that the error in judgment fell below the standard expected of a reasonably competent doctor and that the error in judgment caused the patient’s injury.

For more information you can get 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. on Amazon.

Or you can contact me through this blog or by calling toll free in Atlantic Canada 1-888-647-7201 and we will send you a copy, free, anywhere in the Maritimes.

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