Focus On

HEALTH CARE PROFESSIONALS - Liability (malpractice) - Failure to follow up

Thursday, April 18, 2019 @ 8:55 AM  


Lexis Advance® Quicklaw®
Appeal by the plaintiffs from a jury verdict dismissing a medical malpractice action. The principal plaintiff died of cancer in 2011. His estate and surviving family members brought a medical malpractice action against multiple health professionals who provided care to him in 2009 and 2010. The action arose from the plaintiff's attendance at an urgent care walk-in clinic in the same building as his family physician. The plaintiff complained of pain in his lower left abdomen. The attending physician suspected non-cancerous diverticulitis and ordered a CT scan. The physician who reported the results of the scan made a typographical error in the report. Although the body of the report correctly stated that there was no finding of diverticulitis, the interpretation section omitted the word "no". The report referred to a potential filling defect that could be consistent with cancer. The attending and family physicians received the report and advised for follow-up with the plaintiff to discuss the findings with further tests. However, the follow-up appointment was canceled after the plaintiff's family physician was hospitalized, with the plaintiff not attending until the following year, at which time incurable cancer was detected. The plaintiff passed away nine months later. The jury concluded that the plaintiffs failed to establish that any of the defendants fell below the standard of care. The plaintiffs appealed the verdict in respect of the findings related to the deceased's family physician.

HELD: Appeal dismissed. Despite some lack of clarity, the charge to the jury regarding the relationship between expert evidence, common sense, and the standard of care was legally correct. In the context of the charge as a whole, the jury was not directed to only consider expert evidence. The jury would have understood from the charge that it was required to consider whether the standard practice was itself negligent based on all the expert and non-expert evidence, including their collective common sense and good judgment. Alternatively, even if confusion resulted from the charge on standard of care, there was no resulting substantial wrong or miscarriage of justice. No error of principle was established with the jury instructions regarding error of judgment.

Samms Estate v. Moolla, [2019] O.J. No. 1484, Ontario Court of Appeal, A. Hoy A.C.J.O., R.J. Sharpe and J.M. Fairburn JJ.A., March 20, 2019. Digest No. TLD-April152019009