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Medical Negligence – Going under the knife?  Better stay awake during the operation!


Tort law is relatively simple in theory. But as the cliche goes, ‘In theory, theory and practice are the same thing, but in practice, they are not’.  There are four parts in a tort law case. 

1. Duty of Care. 
a. The common law of tort takes it as given that we have certain duties to others in everyday interaction. There is, for example, a duty not to harm another without legal reason or excuse by your actions. Indeed, it is a tort even to touch someone without their permission. Most common touching in everyday life, like brushing someone’s shoulder in a crowded elevator, is excused by the legal maxim ‘Lex Minimus’ (minor touching is minimal and unavoidable in human interaction so it is not actionable). 
b. Most duties come from common law as is example above, however, some duties can be imposed by law. There is no duty of rescue, for example, except if the person in need of rescue is your child. 
c. A person can impose a duty on themselves by words or action, in effect, making the choice to accept the duty imposed. Many contracts have an implied duty of care because of the very nature of the contract. A doctor performing an operation chooses to do so and thereby undertakes a duty to perform to the level of skill of a competence medical professional doing the same operation. 
2. Breach of Duty of Care
a. A duty of care can be breached in numerous ways. Said breach could be intentional, potentially raising ‘aggravated’ damages awarded by virtue of that intentionality. Alternately, such a breach could be a result, not of intention but of negligence. Hitting a pedestrian with a motor vehicle because you weren’t paying attention is a negligent breach of the duty of care that could/should result in an award for damages while doing so with intention will certainly result in an increase in the damages award, and rightly so.
b. The onus of proving that a defendant breached a proven duty of care rests with the plaintiff. In civil law, like tort, the burden of such proof is said to be ‘on the balance of probabilities’ as opposed to criminal law where such a burden is said to be ‘beyond reasonable doubt’. 
c. Sometimes, a plaintiff can’t prove what the exact action the defendant did or didn’t do to cause the resulting damages to the plaintiff. The plaintiff is then forced to rely on the legal maxim ‘res ipsa locquitur’* (latin: the thing speaks for itself). This is explained more below.
3. Causation
a. The plaintiff also has to show that the actions of the defendant actually caused the damages. Again, the burden of proof is ‘on the balance of probabilities’ as per civil law doctrine. 
b. The defendant can deflect this line of argument by showing not all the factors were in the defendant’s control. If some other intervening factor caused, or reasonably could have caused (on the balance of probabilities) the breach, then the plaintiff will have failed to prove that the damages were clearly caused by the defendant. 
c. The defendant could also attempt to demonstrate that the plaintiff himself caused or contributed to the damages by their own actions. This proof could negate the liability of the defendant entirely or just reduce the damages award as a result of the breach of the duty of care. An untreated cut that gets infected could be seen as an intervening act (or lack of act) that ‘caused’ the damages and could diminish or even negate the amount awarded. 
4. Damages
a. The plaintiff has to prove that damages actually occurred as a result of the actions of the defendant that breached the duty of care. 
b. The plaintiff will also have to prove or at least reasonably demonstrate the amount of the damages that should be awarded. A judge can be asked to estimate but will not award damages on a guess. 
c. So again, the burden of proving both the fact of the damages and the amount of damages is for the plaintiff to prove on the balance of probabilities. 
5. Remoteness
a. The actions of the plaintiff have to be the ‘proximate cause’ of the damages resulting to the plaintiff. Indirect damages can be said to be to ‘remote at law’, meaning that their connection of the damages to the actions of the defendant is not close enough. 
b. As example, if you lose a sale on a contract because you are late for work as a result of a train operator negligently causing a train derailment, a claim for loss as a resulting will be deemed as ‘too remote in law’. 

In Armstrong v. Royal Victoria Hospital, 2019,   Karen Armstrong was seriously injured during colectomy surgery performed by Dr. Colin Ward. A trial judge found Dr. Ward to have negligently caused Ms. Armstrong’s injuries, and therefore liable for damages in the amount of $1,300,000. 
The award was reversed on Appeal which held ... 
[3] ... the trial judge erred in defining the standard of care that Dr. Ward had to meet, improperly establishing a standard of perfection. In simple terms, the trial judge effectively concluded that if Dr. Ward injured Ms. Armstrong’s ureter with the cauterization tool he was employing, he would be liable. Instead, the trial judge should have determined whether Dr. Ward performed the operation in the manner that a reasonably prudent surgeon would have.

[4] On that correct measure, the trial judge’s own finding was that during thesurgery, Dr. Ward took the steps he described to identify and protect the ureter.These were essentially the same steps that Ms. Armstrong’s own expert surgeonconceded a reasonably prudent surgeon would use. Given this finding, the trialjudge should have dismissed Ms. Armstrong’s action.

Essentially, the plaintiff was unable to prove that the doctor acted in a negligent way, in no small part because he was unable to testify as to what happened during the operation because he was unconscious during the operation. 

The defendant testified, and the trial judge himself found no reason to dissent, that the defendant followed the proper protocols that a reasonable competent and prudent medical practitioner would and should follow in the performance of the operation. 

The plaintiff, in effect, was claiming that the result obtained was not what would be expected if the doctor had performed the procedure properly. 

Some commentators have expressed surprise by this Judgment but, in this author’s opinion, it does follow consistently with the line of reasoning in Fontaine v. British Columbia (Official Administrator) wherein the doctrine of res ipsa loquitur was disavowed in Canadian law.   https://www.canlii.org/en/ca/scc/doc/1998/1998canlii814/1998canlii814.html?autocompleteStr=Fontaine%20v.%20British%20Columbia%20(Official%20Administrator)&autocompletePos=1 

The court did make up for any legal deficiency by substituting a kind of ‘reversible presumption’ but that is for another article. 

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