The vast majority of legal actions commenced against health professionals are grounded in whole, or in part, on the law of negligence. The tort of negligence requires a plaintiff to allege and prove four elements. They are:
This blog post focusses on the second element – a breach of the standard of care. Was what occurred to the patient the result of such a breach, or alternatively, was it merely an error in judgment? The importance lies in the result, a breach leads to damages while an error in judgment does not!
The standard of care is the level of treatment a reasonably competent health care practitioner would be expected to provide in the circumstances before them. The plaintiffs set out allegations of negligence in their statement of claim, which sets out the case advanced by the plaintiff(s) and which the defendant health care professional(s) have to meet. The allegations may relate to actions taken and alleged to have been committed wrongly, or actions not taken, which should have been performed.
The most often quoted passage on the standard of care is the Ontario Court of Appeal’s (ONCA) decision in Sylvester v. Crits et al. wherein it was stated:
Every medical practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. He is bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same experience and standing and, if he holds himself out as a specialist, a higher degree of skill is required of him than one who does not profess to be so qualified by special training and ability.
The appropriate standard of care is advanced by the parties through their evidence, largely consisting of expert evidence. It is a standard of reasonableness, not perfection. This is because it is easy to be right in hindsight and the health care professional must be viewed not in retrospect, but in the circumstances that presented themselves at the time.
It must also be remembered that the appropriate standard of care is based on the state of medical knowledge and technique at the time of the alleged negligence. It is not based on advancements that may have since been made.
The common law has long recognized that a health care professional is not negligent, that they have not breached their duty when what occurred was an honest error of judgment after a reasonable and careful assessment of the patient. Perhaps the most well-known expression of what was meant comes from Lord Denning in Roe v. Minister of Health as follows:
It is so easy to be wise after the event and to condemn as negligence that which was only a misadventure. We ought always to be on our guard against it, especially in cases against hospitals and doctors. Medical science has conferred great benefits on mankind, but these benefits are attended by considerable risks. We cannot take the benefits without taking the risks.
This makes sense as most health care professionals are presented with unique and fast appearing circumstances they must consider. Although all work from their education, training and experience, they are not perfect. Errors are expected and the court must then decide if what occurred was a negligent act or omission, or mere misadventure.
If the health care professional establishes that they acted honestly, intelligently and reasonably when providing an exercise of judgment, an error in judgment is not equal to negligence. This is unlikely to happen where the error was the result of unskillfulness, carelessness or from ignorance.
At Wise Health Law, our lawyers have significant experience before the civil courts, enabling them to provide our clients with exceptional guidance and representation through the often-overwhelming negligence litigation process. To find out more about how we can help, contact us online, or at 416-915-4234for a consultation.
Undoubtedly, COVID-19 has affected how health professionals practice. Pharmacists across the country are not only experiencing changes in how they practice (for example, accepting emailed prescriptions, where appropriate) but the scope of their practice as well. The latter change is not permanent, although the disruptions in practice may be felt long after the COVID-19 emergency subsides.
On March 19, 2020, Health Canada issued a short-term section 56(1) exemption under the Controlled Drugs and Substances Act (CDSA) that would authorize pharmacists to prescribe, sell, or provide controlled substances in limited circumstances, or transfer prescriptions for controlled substances (the CDSA Exemption).
The past several weeks have been a challenging time for everyone. Health professionals have been bombarded with Emergency Orders and other pronouncements that can be confusing and at times seem contradictory.
With the rules and restrictions changing so rapidly, it is advisable to keep an eye on the website, social media feeds, and other communications from your respective regulatory College for your College’s interpretation and position on what you should and should not be doing during the pandemic. While the Emergency Orders and pronouncements apply to a broad spectrum of health professionals, individual Colleges can provide guidance and interpretation about how those orders and pronouncements relate to your specific profession.
But what if you’re still unsure about whether you can provide a particular service to a specific patient/client; or some other aspect of your professional obligations at this uncertain time?
Earlier this year, Wise Health Law succeeded on a motion for summary judgment in a dental malpractice case on the basis that the limitation period had expired before the Statement of Claim was issued. The (unreported) decision was delivered orally on the day of the motion.
In part, the plaintiff argued that she did not discover her claim until the Royal College of Dental Surgeons of Ontario (the “RCDSO” or “College”) rendered its decision, as she did not know if the defendant was negligent when she complained to the RCDSO, but merely had a “suspicion”.