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Personal Injury

Negligence and damages required for successful med-mal cases

More than a medical mistake is needed before plaintiffs can mount a medical malpractice case, Toronto litigator Richard Shekter tells

Shekter, a partner with Shekter Dychtenberg LLP, says it’s a common misconception among non-lawyers that an obvious medical error will automatically result in a claim against the professional who was responsible.

“It won’t actually, because in order to establish a claim of negligence, you need a mistake and then you need damages that arise as a result of the mistake.

“Without both, you don’t have a case,” says Shekter.

Many claims fall short because they can’t prove both key elements, he explains. For example, a number of former patients have launched claims against hospitals after contracting necrotizing fasciitis, colloquially known as flesh-eating disease, during their stay.  

In these cases, Shekter says the damage is clear since the disease can easily result in the deaths of victims. However, plaintiffs have struggled to show that there was a breach of the standard of care given by the attending professionals.

“Doctors have been able to successfully defend themselves by showing that they did nothing wrong and that even an earlier intervention with specific antibiotics would not have made any difference to the end result,” he says.

Shekter says a recent Ottawa case illustrates some of the more grey areas inherent in the developing world of medical malpractice law.

The CBC reports that nearly 5,000 patients at a family health clinic were instructed to get tested for HIV and hepatitis B and C following the discovery of a lapse in its cleaning procedures for surgical tools.

If an abnormally large number of the tests come back positive for diseases, Shekter says those afflicted are likely to have a strong case in court.

“There have been many cases alleging tainted instruments, where there’s a clear breach of the standard of care. But unless you can show damage arising as a result, there’s no cause of action,” he adds.

The news story says many former patients have expressed varying levels of anxiety and stress after hearing of the protocol breach, as well as the testing, and Shekter says it’s at least theoretically possible that this could be a ground for an action, even if the results come back negative for any infections.

“If you sustained a psychological impairment that is clinically demonstrable, there is case law to suggest that it is actionable — as long as it’s reasonably foreseeable to the person responsible,” he says. “But there are other cases that say an unreasonable response to the same set of stimuli may not be actionable.

“That gets you into the cutting edge of tort law,” Shekter adds.

If he were handling the Ottawa-area case, Shekter says he would conduct what he calls a “watching brief.”

“You would collect the names of as many people as you could, and tell them to come back when they have the results of their testing,” he says. “If a significant number turned out to be injured, it could be worth litigating.

"Secondly, if some patients experience severe psychological trauma because of the uncertainty while awaiting test results that ultimately turn out to be normal, that could also give rise to a viable claim for damages — although there may be some resistance, depending on the judge or jury’s view of the reasonableness of that psychological response.”

Depending on the circumstances, a class action could be one option for patients to recover any losses, including the cost of testing, says Shekter.  

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