Expert Rule

This medical malpractice lawsuit arose from a prescribing error by a general practitioner. The doctor admitted the prescription error but denied that it caused any lasting injuries.

The defendant, Dr.C. E. Fourie, admitted the claimant was entitled to damages resulting from the perforated ulcer, surgery, and hospitalization. However, no lasting injuries resulting from the defendant’s breach of her standard of care .

The judge disagreed and found the prescribing error was responsible for the remaining injuries, except the Crohn’s disease.

Medical Malpractice Claims Generally

To succeed in a medical malpractice claim, based on negligence, a claimant must prove that:

a)         the physician owed a duty of care to the claimant;

b)         the physician breached the standard of care expected in the circumstances;

c)         the claimant suffered harm; and

d)         the physician’s breach caused the claimant’s damages resulting from that harm. (Baglot v. Fourie, 2019 BCSC 122  para 269)

Legal Causation

The test for legal causation in a case of a prescribing error is generally the “but for” test. Courts have recognized that plaintiffs can encounter practical difficulties in proving causation under the but for test in medical malpractice cases.

At para 273 the judge explains the difference between medical and legal causation quoting from Snell at para. 34:

It is not therefore essential that the medical experts provide a firm opinion supporting the plaintiff’s theory of causation. Medical experts ordinarily determine causation in terms of certainties whereas a lesser standard is demanded by the law…

The court can reach common sense to resolve causation even when the parties have both adduced expert evidence. This standard of proof does not require scientific certainty.

Remoteness of Damages

According to the judge if a medical practitioner knows of a particular risk, the standard of care is more demanding. Also, for a risk to be foreseeable it is not required that it be more likely than not to occur. For a
prescribing error there does not need to be a degree of statistical probability attaching to it.

“The thin skull doctrine is related to the issue of remoteness…even if the plaintiff is injured to a greater degree than was foreseeable at the time of the breach, the defendant still must compensate the plaintiff for the resulting injuries.”( See para 290 of Baglot )

This medical malpractice award of $888,000.00 for a prescribing error is summarized as follows:

a $146,000 Pain and suffering;

b)$63,000 in past wage loss;

c) $440,000 in loss of future earning capacity;

d) $54,000 in trust; and

e) $185,000 in costs of future care.

Leave a Reply

Your email address will not be published. Required fields are marked *

Post comment