Introduction

Health professionals have a duty in law to conduct their practices in accordance with the conduct of a prudent and diligent peer in the same circumstances. If the health care professional is considered to be a specialist, their actions must be assessed in light of the conduct of other such specialists who possess a reasonable level of knowledge, competence and skill. When assessing potential negligence by a health care professional, one must examine the knowledge and skill that ought to have been reasonably possessed at the time of the alleged acts or omissions said to be negligent. But what about situations where the standard of care itself is deemed negligent?

Assessing Conduct

When the conduct of a medical professional is under scrutiny due to a complaint, it is invariably assessed through the opinions of “experts” retained by the opposing parties. The plaintiff has the onus of establishing the standard of care at the relevant time and proving that it was not met in the circumstances. The defence will also seek to establish the standard of care at the time and prove that it was met. It is generally accepted that when a health care professional acts in accordance with a recognized and respectable practice of their profession that they will not be found negligent. This is so because judges and juries do not ordinarily possess the necessary expertise to establish the standard of care on their own. The assumption is that collectively, healthcare professionals will have adopted procedures that are in the best interests of their patients, which are not inherently negligent.

However, where the accepted practice is fraught with obvious risks, it can be found to be negligent without the need for expert testimony. This possibility requires that the circumstances do not involve diagnostic or clinical skills so that an ordinary, non-medical person may sensibly pass judgment. Examples of such scenarios would include the failure to advise of known material risks, leaving a surgical piece of equipment in the patient or treating the wrong part of the patient’s body.

What the Trier of Fact Must Decide

The judge or jury must analyze each aspect of the claim in the same way. They must first decide if the evidence established that the standard of practice existed, and if so, what it was. This means that they can prefer one party’s evidence and reject that of the adversary.

Once they have decided on the applicable standard of care, they must next assess whether the defendant health care professional conformed to that standard. If they did, the usual result would be a finding of no negligence. However, as in the examples explained above, the judge or jury may find that the standard practice was itself negligent. Using the example of the instrument being left in a patient, if the standard of practice was not to account for all instruments used during a surgery, the trier of fact could find that standard to be negligent in and of itself.

Alternatively, if the trier of fact finds that no standard of practice was established by the evidence, then there would be no negligence unless they were able to fix the standard without the necessity of expert advice.

Finally, if the health care professional is found to have not met the standard of care, whether established by the evidence or the trier of fact, then they would be negligent.

Authority

The authority for these statements of the law can be found in the Supreme Court of Canada’s (SCC) decision in Ter Neuzen v. Korn. In the decision, the SCC quoted from their reasoning in Waldick v. Malcolm as follows:

Thus, it is apparent that conformity with standard practice in a profession does not necessarily insulate a doctor from negligence where the standard practice itself is negligent.  The question that remains is under what circumstances will a professional standard practice be judged negligent?  It seems that it is only where the practice does not conform with basic care, which is easily understood by the ordinary person who has no particular expertise in the practices of the profession.  That is, as Professor Fleming suggests, where the common practice is fraught with danger, a judge or a jury may find that the practice is itself negligent.

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