If a doctor fails to provide necessary medical treatment this is known as a failure to act or a negligent omission.  An example is failure to diagnose a medical condition.  Another example is failure to provide medical treatment.

As discussed in previous blog articles, medical malpractice causation is an important issue in all claims.  Causation in relation to a failure to act involves certain considerations.  First, the court will consider what the doctor in question would have done had he/she acted properly.  Second, the court will consider what a reasonably competent doctor with the same qualifications would have done in the same circumstances.  Third, there must a connection between the failure to act and the injury.  It must be proven that the injury would not have resulted if proper medical treatment had been provided.  This involves a “but for” test.  But for the failure to act, the injury would not have occurred.

An example of the issue of causation in a failure to act situation by a doctor was considered in Mitchell v. Rahman 2002 MBCA 19.  The injured claimant suffered an injury to his shoulder in a motor vehicle accident.  He went to the hospital where he saw an emergency room doctor for his shoulder injury.  The doctor ordered an x-ray of his shoulder which he reviewed along with several other doctors.  The injured claimant at the hospital was then diagnosed with a shoulder sprain.  Several months later, a physiotherapist identified the injury as a dislocated shoulder which eventually resulted in a permanent disability.  The injured claimant brought an action against the doctors for medical malpractice for failure to act and failure to diagnose.  The case was initially dismissed on the basis that the original shoulder injury was suffered in a motor vehicle accident, not from medical malpractice.  The injured claimant appealed.

The appeal concerned the issue of causation.  Specifically, the court of appeal considered whether the there was a break in causation because of the failure to act by the hospital doctors.

The injured claimant argued that the medical malpractice broke the chain of causation between the motor vehicle accident and the injuries.  He argued that his injury was not the shoulder dislocation suffered in the motor vehicle accident.  Instead, he argued that the injury was the permanent shoulder injury and disability caused by the doctors’ failure to act in failing to diagnose the dislocated shoulder.

The Court of Appeal allowed the appeal finding in favour of the injured claimant.  In particular, the court concluded that the shoulder impairment was not caused by the motor vehicle accident and instead resulted from medical malpractice.  It was only the circumstance of the motor vehicle accident which brought the injured claimant to the hospital for treatment.  It was that treatment that was found to be negligent which caused the permanent shoulder impairment.

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