When something goes wrong at the hospital, who carries the blame?

Joyce Blond Frank B.A., B.C.L., LL.M.

November, 2010

No matter how hard we try, how much we control our diet, or how much we exercise, there are some things we cannot prevent.

Let’s consider the following: How would you react if you had your tubes tied and found yourself pregnant with your sixth child? Or if you had bypass surgery and then suffered severely for more than a year before anyone removed a left over staple? Or if you had to undergo exploratory surgery because the radiologist misread your X-ray?

Presumably, you would ask for compensation and if that was not forthcoming, you would apply to the courts for a judgment ordering payment for the damages and suffering you had undergone. And you would expect the court to be sympathetic toward you and render judgment in your favour. This is not as simple as it might seem. You would probably get the sympathy of the court, but you might not get the anticipated financial compensation.

The physician must be prudent and diligent and act as a colleague with the same expertise and of reasonable competence might have under the same circumstances The law pertaining to professional liability puts the burden of proof on you, the plaintiff, to prove that the professional you are suing has committed an act of fault or negligence that has caused you damage that can be evaluated in dollars.

This is an especially heavy burden in cases of medical responsibility because the act of fault or negligence must be such that it would not have been made by another practitioner acting within the normal acceptable standards established by the profession. The physician is expected to explain the risks of the procedure to his patient, but he is not usually expected to guarantee results.

He is expected to act in accordance with the highest medical standards and within the rules set down by his profession. If he does all of this and makes a mistake, he will not necessarily be ordered by the court to pay for the damages or suffering you have incurred.

When the woman above discovered she was pregnant, she sued the surgeon. The different methods of tubal ligation had been explained to her and she had given her consent to a technique, knowing it was 97 per cent effective. Three months after the surgery, an X-ray confirmed her tubes were blocked, although the right side had moved slightly. The patient was advised that the operation had been successful but was not told about the displacement.

About a month later, she experienced morning sickness and an echogram confirmed her worst fears. She decided not to have an abortion. The court held that there was no expertise proof that the operation had not been performed properly in conformity with accepted medical practice and consequently the court was unable to conclude that there was any fault on the part of the surgeon.

There was also no proof of any connection between the displacement of the tubal implant and the inefficacy of the procedure. The woman lost her case.

Now consider the man who had triple bypass surgery twice in one day, the second intervention rendered necessary because of hemorrhaging following the first one. This required removal of the staples used to close the thoracic cavity following the first surgery and replacing them. Following these operations, the patient experienced severe pain at the chest and lungs as well as some bleeding. It felt as if his thoracic cage was squeezing his lungs.

The surgeon who had performed the first operation removed some of the staples, but the pain and bleeding continued and several months later more metal was removed. About 14 months later, still in pain and bleeding, the patient returned to the first surgeon and was told everything was healing normally.

Shortly afterward, having consulted his family doctor and taken an X-ray, he learned that a staple still remained in his body. Upon being informed, the original surgeon refused to take responsibility and refused to remove the final piece of metal. This was done by another surgeon at the day clinic. Eighteen months after the original surgery, the patient was able to wear a shirt and sleep in his own bed. The problems with his lungs continued, but the surgeon said he could no longer help him. The patient remained unable to work. Legal action was taken against all the physicians and surgeons who had treated him. They presented the testimony of an expert to the effect that proper procedures had been used. The patient did not have an expert witness. The court held that it did not have the medical knowledge permitting it to substitute its own opinion for that of an expert. In cases of medical liability, the obligation of the physician is one of means and not of result. All surgical interventions have risks and a surgeon cannot guarantee results. In the absence of medical expertise proof, the court was not able to conclude that the physicians had not followed acceptable methods and procedures. By not presenting an expert witness, the patient had failed to fulfill his burden of proof and his claim was rejected.

In another situation where a patient underwent unnecessary exploratory surgery following the interpretation of her X-rays by a radiologist, the court held that to determine whether a professional has committed an act of fault, one must ask whether another reasonably prudent and diligent professional would have acted the same way under the same set of circumstances.

In order to assess this, the court must refer to experts and cannot substitute its own opinion for theirs. In this case, the radiologist may have misinterpreted the X-ray but his work was carefully done; he acted prudently and diligently, and his conclusions were reasonable under the circumstances. He had behaved as would have any other reasonably prudent and diligent professional and reached a conclusion consistent with good professional practice.

The patient's claim was dismissed.

The physician must be prudent and diligent and act as a colleague with the same expertise and of reasonable competence another might have under the same circumstances.

The burden is on the plaintiff who institutes the legal action. Sometimes the facts are such that it is difficult to envisage any conclusion other than responsibility. Once a judge accepts that the facts give rise to a situation where liability seems self-evident, it is up to the physician to convince him that the damage is not his fault.

Where in the normal course of affairs something happens that should not have, causing damage to a patient, it is up to the physician to convince the judge he was not negligent. He must show that he acted in accordance with the generally accepted standards of the profession.

To prove that he did not do so you must have the testimony of an expert. Where the patient does not present expert testimony, the court will offer sympathy but the rules of law and procedure will prevail and the patient’s claim will be dismissed.