The Supreme Court of Canada has agreed to hear the case of a Barrie woman who suffered severe injuries after a colonoscopy and was awarded $1.3 million at her original trial.
Karen Armstrong had a total proxo colectomy at Royal Victoria Regional Health Centre in February 2010 in which general surgeon Dr. Colin Ward removed her colon through laparoscopic surgery.
But her recovery stalled and she began experiencing severe pain in the following weeks and months. It was ultimately determined that there was an eight- to 10-centimetre blockage in her ureter, which carries urine from the kidneys to the bladder, which eventually led to the removal of her left kidney.
Armstrong, a registered nurse who once worked in the hospital’s dialysis unit, sued Ward for negligence for causing the scar tissue, arguing he either touched her left ureter with the surgical instrument used to fuse tissue or brought it too close to the ureter causing a thermal injury or heat damage, leading to the scarring that caused the blockage.
Ward denied that he breached the standard of care expected of him as a surgeon.
During the original Barrie trial, Justice Gregory M. Mulligan found the doctor to have negligently caused her injuries and awarded Armstrong $1.3 million in damages.
But last December, Justice David M. Paciocco, writing for the majority of the Ontario Court of Appeal three-person panel, determined that the trial judge erred in defining the standard of care the doctor had to meet, “improperly establishing a standard of perfection” and allowed Ward’s appeal, dismissing the action against him.
“In simple terms, the trial judge effectively concluded that if Dr. Ward injured Ms. Armstrong’s ureter with the cauterization tool he was employing, he would be liable. Instead, the trial judge should have determined whether Dr. Ward performed the operation in the manner that a reasonably prudent surgeon would have,” wrote Paciocco.
Ward, he added, took the steps that Armstrong’s expert surgeon said a reasonably prudent surgeon would take and the trial judge should have therefore dismissed Armstrong’s claim.
Paciocco wrote that negligence standards of care are to be measured by the behaviour that a relevant prudent person would undertake, rather than the results that prudent person would seek to attain or avoid.
In its application for leave to appeal to the Supreme Court of Canada, Armstrong’s legal team argued that the Ontario Court of Appeal decision is problematic because the majority of the court of appeal seemed to say that an attempt to meet the steps required by the standard of care is sufficient - that proficiency doesn’t matter.
Medical Malpractice lawyer Jan Marin, who is representing Armstrong, said the highest court in the land has agreed to hear the case, which is a reflection that the issues it raises are of national interest.
“Across the country these issues can be extrapolated to any jurisdiction. Legal pronouncements on physician or health care provider negligence can have broad application” said Marin.
She points to the dissenting opinion in the appeal court decision addressing the difference between using the proper technique and executing it properly.
“Based on the evidence, the trial judge did not hold Dr. Ward to a standard that was higher than could reasonably be expected of an 'average reasonable prudent practitioner' performing a colectomy where no complicating features were present,” concluded Justice Katherine van Rensburg in her commentary, which was twice as long as Justice Paciocco’s decision.
Marin said there was concern about the precedent the Armstrong case would set. Within three months of the appeal court decision, a Manitoba court did use it for guidance in another case.
“We had concerns about the precedent that was set in the Ontario Court of Appeal that it might result in there being an exception created for medical defendants that doesn’t exist for defendants in other types of negligence actions, that they can essentially say that they attempted to do everything they should do and that that’s enough," said Marin.
"And it doesn’t matter that there’s a very poor outcome or experts suggesting that the most likely reason for the poor outcome is negligence. And that’s very problematic from our perspective,” said Marin.
Another issue Armstrong’s team raises is concerns that all of the information about the surgery comes from the surgeon because the patient is anesthetized and not conscious during the surgery.
“So we suggest that it’s not a sustainable system to have in place that all of the evidential burden is on the plaintiff to establish that there are no other potential causes of injury,” says Marin.
She said once the premise for negligence is established, even with circumstantial evidence, “it makes practical and legal sense for the trier of fact to assume that any possible or actual non-negligent causes of injury would be adduced by the defendant. W
"e need to assume, we believe, that the system and the triers of fact - whether it’s judge or jury - can assume that the best evidence is before them, that there aren’t some other potential causes that no one has talked about. If there were, it would have been a defence.”
Dr. Ward could not be reached for comment. His lawyer, Mark Veneziano, said via email: “I don't think we should comment at this time.”
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