Loss of Chance or Negligence? Bennett v. Landecker

by John McKiggan

In any medical malpractice case the plaintiff bears the burden of proving that the defendant caused the patient’s injury, disability or death.

In many cases the initial cause of the plaintiff’s injury was not brought about by the defendant doctor. Rather, the plaintiff presented with an illness or medical condition which is misdiagnosed and, as a result, the patient doesn’t get treatment that might have cured the illness or condition (or prevented further deterioration).

Loss of Chance

Doctors will defend these cases by claiming arguing that the loss of a chance of recovery is not a recoverable head of damages in Canada (see for example the Supreme Court of Canada’s ruling in Laferriere v. Lawson).

In order to recover damages, the plaintiff must show that the lost treatment probably would have resulted in full recovery. The lost opportunity to obtain proper medical care or the chance of recovery is not a recoverable loss.

To see how this defence plays out one need only look to the recent decision from the Ontario Supreme Court in Bennett v. Landecker.

Mr. Bennett was a long time patient of the defendant physician, Dr. Landecker. Bennett saw Dr. Landecker with a complaint of acute vision loss. Landecker examined Bennett and suspected that he was suffering from a detached retina, but could not find the detachment or any other evidence of a tear or hole in Mr. Bennett’s retina.

Dr. Landecker concluded that the probable cause of the vision loss was a retinal arterial occlusion. Dr. Landecker referred Bennett to his family doctor for follow up and suggested Bennett return in 6 weeks. Two days later Bennett suffered a total loss of vision in his eye due to his retina becoming fully detached.

Bennett was subsequently referred to Sunny Brook Hospital where he had two failed operations to reattach his retina. As a result, he suffered permanent loss of vision in his left eye.

Landecker defended the case on the basis that, at the time he examined Bennett, the detached retina was only a possibility, not a probability. His lawyers argued at the time Bennet was examined, there was only a small chance Bennet required surgery to for his retina. Therefore the defendant claimed that compensation for a mere loss of chance and should not be considered by the court or awarded compensation.

Mr. Bennett’s medical experts testified that, with timely treatment, there was a 90% to 95% chance of success of reattaching Bennett’s retina.

The court rejected the loss of chance defence. Justice Gilmore’s comments about this issue are found in paragraphs 92 and 93:

[92] The central question to be posed here is whether Mr. Bennett’s blindness in his left eye would have occurred but for the negligence of Dr. Landecker. Did his failure to provide follow- up on the possible retinal detachment diagnosis and failure to ensure that Mr. Bennett was given fulsome and proper instructions regarding any change or loss in his vision lead to retinal detachment or lead to a macula-off situation where retinal re-attachment was virtually impossible due to the length of time that had passed?

[93] In my view, the evidence supports that the answer to this question is “yes.” Although it is true that the retinal detachment likely started as early as June 24, 2005, it is also clear that the chances of complete re-attachment would have been substantially increased had Dr. Landecker arranged for a follow-up appointment a retinal specialist or some other form of follow-up the following week. Clearly such urgent follow-up was available as Dr. Landecker was able to arrange for Mr. Bennett to see Dr. Kertes at Sunnybrook on the same day that he was consulted on August 15, 2005. Again, in not following up on that possible diagnosis, Dr Landecker’s negligence was responsible to some degree for Mr. Bennett’s blindness. [Emphasis added]

Gilmore J. concluded in paragraph 100:

“Dr. Landecker’s negligence caused Mr. Bennett’s blindness in his left eye. But for Dr. Landecker’s negligence, the odds were excellent that Mr. Bennett’s retina could have been reattached and a reasonable level of vision restored… “[Emphasis added]

What’s Substantial?

How “substantial” an increase does a patient’s chance of recovery have to be before the claim is one of negligence rather than “loss of chance”?

Different types of injuries or conditions have different “success” rates with treatment. If timely treatment would increase a patient’s chance of recovery or survival by 10% is that substantial? Does the increase have to be more than 50% before it is considered to be “substantial”?

What Are “Excellent” Odds?

Different types of injuries or conditions have different morbidity (disability) and mortality (death) rates. I would argue that when considering the odds of recovery the court should not look at simply whether the patient’s chances of recovery with treatment were more than 50%. Rather the court must look at the norm, or baseline, and consider how the doctor’s misconduct changed, or reduced, the patient’s odds.

Cancer Survival Rates Different

For example take a look at the statistics from this article Cancer Survival Rates by Types of Cancer.

According to the article: “Breast cancer, the most common tumour in women, presents a high survival percentage: 83% of patients have survived this type of cancer after five years.”

I think anyone would agree that an 83% chance of survival is “excellent” odds.

On the other hand, the article says: “Lung cancer is one of the most aggressive tumours and survival after five years is very low: only 10% of patients diagnosed with a malignant neoplasm survive for more than five years.”

“Excellent” Depends on Point of View

If a doctor misdiagnoses a patient’s lung cancer and the patient dies, the patient has lost the 10% chance they had of surviving cancer. Defence counsel will argue the loss of a “mere” 10% chance of survival is not worthy of compensation.

But look at it from the patient’s point of view: Without proper diagnosis and treatment there is a 100% chance they will die. From the patients point of view, a 10% chance of survival is a “substantial increase” when compared to a 0% chance of survival.

Put another way, a 10% chance of survival is excellent odds when compared to a 100% chance of dying.

50% or Better

Unfortunately the answer to the question I posed above is that only odds of 50% or better are considered “substantial” or “excellent” the prevailing opinion of courts across Canada does not agree with the subjective approach to consideration of odds of survival.

See for example, in the Ontario Court of Appeal decision of Armstrong v. Centenary Health Centre, [2005] O.J. No. 2386 (Ont. C.A.). In this case, a woman’s doctor missed an early diagnosis of ovarian cancer. By the time it was detected, the cancer had progressed incurably.

“[93] I agree that the issue the trial judge was required to determine was whether it was more likely than not that Mrs. Armstrong would have survived for more than five years if the appellants had detected her cancer. There was no issue at trial that the medical standard for a cancer cure is survival for five years.”

The Court relied upon the previous decision of the Ontario Court of Appeal’s 2003 decision in Cottrelle et. al. v. Gerrard which stated that a chance of avoiding an unfavourable outcome is not sufficient to prove causation unless that chance meets the threshold of ‘more likely than not.’ (more than 50%).

What do you think? If a patient’s chances of survival are less than 50% and the doctor’s negligence reduces those chances even further is it fair to say that the doctor’s negligence didn’t cause or contribute the patient’s death or injury? As mathematicians would say; at what point do the patient’s chances of death or disability become “statistically significant”?

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