The common adage is simple – early diagnosis and treatment is the best medicine. No amount of delay is acceptable or desirable. A delay in treatment can have drastic consequences for a patient's prognosis. Yet delay is also a fact of life and not all tardiness can be faulted. How then does the law deal with such conflicting realities?
A patient undergoes a routine operation. A pin-hole leak in the bowel occurs. It is a known, but rare complication. The perforation is unrecognized following surgery. The patient's condition deteriorates. Sepsis develops and the patient enters into septic shock. A stay in intensive care follows the remedial surgery and a course of antibiotics. The patient suffers losses from the injuries. A lawsuit is commenced naming both the night nurse and the hospital as defendants.
In an action for delayed medical diagnosis and/or treatment, a plaintiff must establish that the delay caused or contributed to the unfavourable outcome. This principle was established by the Ontario Court of Appeal (ONCA) in Sacks v. Ross, and the application for leave to appeal to the Supreme Court of Canada (SCC) was dismissed. The phrase “caused or contributed” is the normative test applied by the ONCA and embodied in the “but for” test prescribed by the SCC in Clements v. Clements. In other words, “but for” the alleged delay, would the plaintiff have suffered the unfavourable outcome?
The ONCA was careful to point out that its decision in Sacks did not in any way revive “the material contribution to injury” test.
The task for the patient then was to prove that, but for the delay in treatment, the injuries would not have occurred. Said another way, earlier intervention was not only warranted to meet the standard of care but would also have prevented the consequences that ensued (causation).
The patient carries the burden of proof. They must lead evidence that demonstrates a) a breach of the standard of care, and b) that but for the breach, the injuries would not have occurred or would have been less severe. The trial outcome is entirely dependant on the factual matrix presented by the opposing parties through their evidence. Each side must present their evidence, likely involving expert opinion, with respect to what should have been done by the caregivers and the likely outcome in those scenarios. The court then must decide what actually happened (the facts) as well as determine the outcome (causation) based on the evidence they accept. The court is free, assuming there is an evidentiary basis, to determine the facts and their impact based on preferring one expert's evidence over another.
At Wise Health Law, our health law lawyers rely on their significant trial and civil litigation experience to provide our clients with exceptional guidance and representation in medical malpractice claims. To find out more about how we can help, contact us online, or at 416-915-4234to schedule a consultation.
The Chief Medical Officer of Health for Ontario has issued an updated Directive #2 (dated May 26, 2020) for Regulated Health Professionals in the province.
Pursuant to the updated Directive #2, all deferred non-essential and elective services by health care providers may be gradually restarted – subject to the rest of the requirements set out in the Directive.
The updated Directive #2 does not provide particularly detailed guidance to health professionals on how to proceed, likely because it applies to such a broad spectrum of health care and health professionals. It does, however, provide some principles to assist health care providers in making decisions as we enter this transitional period.
In addition to the mask and hand sanitizer shortages, Ontario’s response to COVID-19 highlights the need for more frontline health care workers. Each regulated health profession’s college responded differently, and we have discussed some of those changes in other posts to keep you apprised.
Today, we focus on the College of Physicians and Surgeons of Ontario (CPSO), who set out to increase the number of available and licenced physicians out on the frontlines through certificates of registration that authorize supervised practice of short duration. The temporary licences authorize practice for 30 days.
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).