When can healthcare professionals be liable for negligence?

Acquire knowledge of the elements of the cause of action of medical malpractice

Medical malpractice is a very technical and specialized area of law.

The defendant is the healthcare professional (e.g. doctor, nurse, chiropractor). As well, hospitals can be liable for any negligence on the part of their employees on the basis of vicarious liability.

In a medical malpractice lawsuit, there are a number of elements that the plaintiff must prove, on a balance of probabilities, in order to be successful. These elements are referred to as the “four Ds” – a) the defendant must have owed the plaintiff a duty of care, b) there must have been a deviation from the standard of care and c) there must be direct causation of d) damage to the plaintiff.

1. Duty of Care

The first element is that the healthcare professional-patient relationship must be sufficiently proximate that the patient is owed a duty of care by the healthcare professional. This element is usually acknowledged if a doctor-patient relationship exists between the plaintiff and defendant.

1. Standard of Care (+ Breach)

The next element is the determination of the standard of care expected of the healthcare professional. This area of the law is a blending of law and medicine and can be quite technical. Because the issue of whether particular healthcare falls below the required standard of care is outside a layperson’s knowledge, it is a legal issue (a question to be decided by the trial judge – even in a jury trial). As such, an expert’s opinion is required to answer it.

An expert opinion on the standard of care must address:

• the standard of care that applies,
• that the healthcare fell below the standard of care,
• that the plaintiff suffered injuries and losses because of the fact that the healthcare fell below the standard of care, and
• that the plaintiff’s losses were reasonably foreseeable by someone in the healthcare provider’s position

If a plaintiff fails to provide this evidence, their case may be dismissed.

As a practical matter, it is not always easy to find a medical expert that is willing to give a favorable opinion to a plaintiff.

1. Causation

This is a complicated area and so is discussed in its own post.

1. Damages

Damages is yet another element. A plaintiff must establish each of the elements of the cause of action on a balance of probabilities in order to be successful. So if the healthcare professional’s substandard care does not injure the plaintiff, the plaintiff’s claim will fail.

Example: The plaintiff is a patient of the defendant. After a complete medical exam in Oct 2000, the defendant ordered a number of medical tests. The defendant had received most of the results by the time of the follow-up, except for a mammography report (which noted an abnormality and recommended further tests). The defendant’s office tried but failed to reach the plaintiff to schedule another appointment to discuss (a fact the plaintiff denies). The parties continued having regular appointments. In Apr 2005, the plaintiff advised the defendant of a dent on her left breast. After a chest examination, the defendant arranged a biopsy and then radiation treatments followed. The plaintiff claimed that the defendant committed medical malpractice for delay in diagnosing her cancer. The court finds that the plaintiff’s claim fails because she suffered no damages. The delay meant that she had regional instead of local radiation. But there is no evidence that local radiation would have entailed fewer side-effects or a shorter recovery time than regional radiation. (Hypothetical adapted from McClintock v. Alidina, 2011 ONSC 137 (Can LII)).

The heads of damages are similar to those in other tort cases (to be discussed in more detail in another post).

What is the required connection between the defendant’s failure to meet the standard of care and the plaintiff’s loss/harm?

An overview of the various tests for causation

An essential element of a medical malpractice action is causation. The issue is whether the healthcare professional’s failure to meet the standard of care caused the plaintiff compensable harm or economic loss. The test for causation is called the but for test. The plaintiff must show that but for the defendant’s negligent act, the injury would not have occurred. Inherent in the phrase ‘but for’ is the requirement that the defendant’s negligence was necessary to bring about the injury – or, in other words, that the injury would not have occurred without the defendant’s negligence. This is a factual issue (Clements (Litigation Guardian of) v. Clements (SCC 2012)).

Applying the ordinary test for causation: The trier of fact must consider the totality of the evidence with respect to the breach that occurred and the resulting injury and decide whether to draw an inference of causation based on that evidence. The defense may then argue that the injury was inevitable and would have occurred notwithstanding the negligent act(s).

Test for causation for multiple agents/actors: If there are multiple agents or actors who can raise a ‘point the finger’ strategy to preclude a finding of causation based on a balance of probabilities, the court can apply an alternative approach called the material contribution test. According to this test, the plaintiff does not have to prove but for causation but only that the negligent action materially contributed to the risk of harm.

Complicating factors in a medical negligence action include:

• they routinely involve independent healthcare providers performing consecutive acts which allegedly either a) cause the same injury or b) aggravate the injuries caused by the previous individual, and
• where what is at issue is not the healthcare provider’s act, but rather his/her omission.

Test for causation for omission: In the second instance, the causation test involves the trier of fact attending to the situation as it existed in reality the moment before the defendant’s breach of standard of care, and then to imagine that the defendant took the action the standard of care required him/her to take, in order to determine whether his/her doing so would have prevented or reduced the injury.

Test for causation for delayed medical diagnosis/treatment: In the case of delayed diagnosis/treatment, the plaintiff must show, on a balance of probabilities, that the delay caused or contributed to the unfavorable outcome (Sacks v. Ross (the Ontario Court of Appeal, 2017); application for leave to appeal to the Supreme Court dismissed).

Here are recommended points on the conduct of the action from academic literature:

• get early expert advice on causation
• deliver expert reports on standard of care and causation on the other party early
• use an Agreed Statement of Facts for undisputed facts related to the causation issue(s)
• counsel should agree in advance on the proper form of jury questions
• if a party wishes to object to the admission of an expert report on causation, or wishes to reduce the scope of an expert’s testimony, concerns should be raised as soon as possible before trial