In prior blog posts on medical malpractice causation, we discussed the significant challenges in succeeding in a medical malpractice claim against a doctor. What is commonly at issue in many medical malpractice claims is causation.
Causation is an essential element in not only medical malpractice claims, but also in all personal injury claims. The standard of proof is the “balance of probabilities”. The injured claimant must show that “but for” the doctor’s negligence, the injury would have have occurred. Medical malpractice claims are inherently challenging because of the complexity and difficulty in proving causation against a doctor which requires scientific evidence and expert opinions.
In short, it is not enough to prove that the doctor was negligent. It must also be proven that there is a connection between the negligence and the injury (causation). Physicians must be judged in light of the knowledge they ought to have reasonably possessed at the time of the alleged act of negligence, not with the benefit of hindsight given prevailing standards of professional knowledge. It is not reasonable to expect perfect outcomes, regardless of the skill and competence of the medical practitioner. Negative consequences do not equate to negligence.
Hanson-Tasker v. Ewart 2022 BCSC 432 is an unfortunate example of where the medical malpractice claim was dismissed even though the doctors were found negligent because causation was not proven.
In this case, the infant plaintiff was born approximately 1 month early at the Mills Memorial Hospital in Terrace, BC. Approximately 42 hours after the birth, she and her mother were discharged from the hospital despite the infant being born pre-term and showing signs of jaundice. Approximately a week after this discharge, she was transported by emergency medivac to BC Children’s Hospital in Vancouver where she was diagnosed with neonatal hyperbilirubinemia, kernicterus (brain damage resulting from a high level of bilirubin in the blood), and associated severe injuries.
This action was commenced by the infant’s mother almost 20 years after she was born. It was alleged that, during the period between her birth and her transport to Vancouver less than eight days later, the medical care and treatment she received from the defendants was provided negligently. In particular, it was alleged that they failed (delayed) to act on clear signs of jaundice resulting from an increase in bilrubin levels which caused the infant’s injuries. In other words, if the treatment was provided without delay, the infant’s injuries would have been prevented.
Several doctors and nurses involved in the infant’s care at the hospital and 8 days later were named as defendants. The trial judge reviewed all of the expert evidence and testimony. The infant’s family doctor and his locum were both found negligent for breaching the standard of care expected of them. They were found to have failed to recognize and act promptly on the risk the infant faced of kernicertus (brain damage) despite clear warning signs regarding the jaundice which would have required further investigation.
After finding the family doctors negligent, the trial judge then went onto discuss whether causation had been established between their delay in treatment and the injury.
It was common ground that the infant’s injuries were caused by a hemolytic event (accelerated rate of red blood cell destruction leading to jaundice). The issue of causation focused on when that hemolytic event occurred – was it progressive where she exhibited symptoms indicative of this condition warranting treatment without delay OR was it sudden and unpredictable which could not have been avoided even with prompt treatment.
The most compelling evidence came from the infant’s mother who testified that although her daughter was jaundiced, she was alert, active and seemingly healthy up to midnight the day prior to her emergency transport to Children’s Hospital. This was significant because all of the medical experts agreed that symptoms of acute bilrubin encephalopathy are arching of the back, a high pitched cry, lethargy and loss of interest in feeding. None of these symptoms were present in the several days in between discharge after birth to admission to Children’s Hospital. On this basis, the claim was dismissed. There was no basis, therefore, for a finding that an earlier follow-up bilirubin test would have prevented the injuries. As stated by the trial judge:
 Accordingly, the plaintiff has failed to establish Dr. Brian Ewart and Dr. Sheila Ewart’s breach of the standard of care caused her injuries. The expert evidence I accept is that the plaintiff did not exhibit prodrome or symptoms indicative of elevated levels of bilirubin warranting treatment until, at the earliest, midnight on August 5, 1996. Thus, the plaintiff has not proven, on a balance of probabilities, had Drs. Ewart ordered a follow-up bilirubin test prior to August 5, 1996, the plaintiff’s injuries would not have been avoided.
 The plaintiff’s theory of the case fails in this regard. In my view, the most that can be said is that there is a possibility that Kyrcee’s hemolysis was not sudden and acute and that Dr. Kaplan’s theory of her bilirubin trajectory in fact occurred. However, given Nadine’s evidence that none of the symptoms of hemolysis existed prior to midnight on August 5, there is no basis for a finding that an earlier follow-up bilirubin test would have would have prevented her injuries. Neither the “but for” or “material contribution” tests for causation has been established.