In all medical malpractice claims, the injured claimant has the burden of proving that the doctor was negligent.  This involves proving on the balance of probabilities that that the doctor owed a duty of care to his/her patient, that the doctor failed to meet the standard of care expected of him/her and that this negligence in failing to meet the standard of care caused the injury. This is what is known as causation.

The traditional test for causation is the “but for” test which asks “but for the doctor’s negligence, would the injury have occurred”?

If a doctor fails to properly diagnose or fails to properly treat a medical condition, the injured claimant must show that the “lost” treatment probably (not possibly) would have resulted in recovery.  In other words, the injured claimant must prove that the unfavourable outcome would probably have been avoided with prompt diagnosis and treatment.  As the standard of proof is on the balance of probabilities, it must be proven that the “loss of chance” of recovery due to the failure to diagnose or treat the condition was greater than 50%.

In Cottrelle v. Gerrard [2003] O.J. No.4194, the the injured claimant had suffered from diabetes for many years.  She consulted the defendant doctor who did not examine her and instead recommended that she see a skin specialist.  There was no follow up appointment and the doctor did not give her any further instructions or warnings.  The sore became infected and before the injured claimant could see a skin specialist, her leg became gangrenous and it had to be amputated below the knee.  Examination of the amputated limb revealed severe atherosclerosis that inhibited the injured claimant’s ability to fight the infection.  The trial judge found that the doctor fell below the applicable standard of care in that he failed to examine her foot and failed to ensure an appropriate follow-up procedure to monitor the condition of her foot. The experts of both the doctor and the injured claimant testified that had the she received an aggressive form of treatment when the condition of her foot deteriorated, she might not have suffered the loss of her leg. However, in light of her pre-existing medical condition of diabetes, no witness was prepared to say that it was more likely than not (or probable) that with proper treatment, the leg could have been saved. The trial judge found that the doctor’s negligence denied the her a “window of opportunity” (or resulted in a loss of a chance) to save her leg, and that his negligence was therefore a cause of her loss sufficient to ground liability. The doctor appealed.

The Court of Appeal in this case overturned the trial judge’s findings and reversed the decision in favour of the doctor finding that there was no negligence.  The basis for dismissing the injured claimant’s negligence claim was that there was no evidence, on the balance of probabilities, that but for his negligence the injured claimant would not have lost her leg.  Instead, the Court of Appeal ruled that the evidence demonstrated that the injured claimant established that the chance of salvaging her leg had the doctor not been negligent was less than 50%.  Accordingly, it was found that the medical negligence claim was not proven on the balance of probabilities (50% or more).

This is another example of how technical and difficult it is to successfully prove a medical negligence claim. In fact, as discussed in this CBC article, medical malpractice claims in Canada are rigorously and aggressively defended by the insurance company protecting doctors.

If you have been misdiagnosed or if your doctor has failed to treat a condition which led to complications, it is essential that if you seek legal advice as soon as possible.  The lawyers at Holness and Small Law Group have been representing injured claimants with medical negligence claims for over 20 years.  We are pleased to offer a free initial consultation.  Contact us if you are interested in obtaining legal advice and understanding your rights.

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