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.
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