As discussed in prior blog posts, medical malpractice claims are notoriously complex and expensive to pursue. The main reason for this is due to the expert evidence required to prove liability and quantum . For liability, expert evidence is needed to prove that the doctor owed the patient a duty of care, that the doctor’s conduct breached the standard of care expected of him/her and that the plaintiff suffered injuries because of the doctor’s negligence (causation). As it relates to quantum, expert evidence is needed to prove injuries, disability and future care costs. Accordingly with most medical malpractice claims, multiple experts are required from various different areas of specialty. The cost in obtaining numerous different medical legal reports can be staggering. It is not uncommon for disbursements (legal expenses) to be in the six figures.
There is no doubt that expert evidence is key to any medical malpractice claim. If there is no expert evidence on an essential issue or if the expert evidence is insufficient, then the entire claim will be dismissed regardless of the severity of the injury.
Kemp v. Vancouver Coastal Health Authority 2015 BCSC 1319 is an unfortunate example of a medical malpractice claim that was dismissed because of lack of expert evidence on liability.
In this case, the defendant hospital and doctors brought a summary trial application seeking a complete dismissal of the medical malpractice claim due to lack of evidence on the issue of causation and standard of care. The patient was 88 years-old. She was directed to go to the emergency room by an internal medicine specialist due to a decline in her health. While in the emergency room, her condition further deteriorated until she died after efforts to resuscitate her failed. The medical malpractice claim was brought against the hospitals and doctors on behalf of the patient’s daughter and her estate. The specific claims made included:
- battery relating to when the doctors tried to resuscitate the deceased patient and administering medication without proper consent
- nervous shock inflicted upon the deceased patient’s daughter
- failing to deliver the letter written by the referring internal medicine doctor which contained important information
- failing to properly triage the deceased patient resulting in a delay in treatment
- failing to provide a medical alert bracelet
- delaying treating and negligently providing treatment
- failing to properly monitor vital signs
- negligent administering of medication
The trial judge ultimately dismissed most aspects of this medical malpractice claim due to lack of proper expert evidence stating:
[323] For these reasons I find that the claims as against Drs. Chittock and Sutcliffe are dismissed, as there is no evidentiary basis upon which to conclude that they did or failed to do anything that caused or contributed to Shannon Kemp’s death on June 28, 2007 at the VGH Emergency.
[324] I also dismiss the claims as against Drs. Sweet and Abu-Laban in negligence, as the Plaintiff has failed to prove that either breached the requisite standard of care in treating Shannon Kemp, nor is there evidence that anything they did or did not do caused or contributed to her death.
[325] Given my conclusions as to the Plaintiff’s negligence claims in relation to the Defendant Physicians, her claim for nervous shock, which must be founded in a viable negligence claim, is similarly dismissed.
[326] In terms of battery, the Plaintiff did not provide sufficient evidence to prove that Dr. Abu-Laban committed a battery upon Shannon Kemp when he prescribed her antibiotic medication prior to her death. Even if the consent to administer the antibiotics was withdrawn, the Plaintiff has provided no evidence that Shannon Kemp suffered any harm as a result. It therefore, did not cause her death as required under s. 2 of the FCA. Accordingly, this claim also must fail.
[327] The sole remaining issue is the Plaintiff’s claim of battery and lack of informed consent relating to the resuscitation attempt of Shannon Kemp performed by Dr. Sweet. I find that this claim cannot be determined by way of summary trial due to direct conflicts in the evidence regarding whether Shannon Kemp was “full code” throughout the resuscitation as between the evidence of the Plaintiff and others. Given that a determination of this claim requires credibility and reliability findings, this is the sole claim that must proceed to trial in relation to the four Defendant Physicians.