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HEALTH CARE PROFESSIONALS - Liability (malpractice) - Failure to diagnose

Thursday, May 30, 2019 @ 8:52 AM  


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Appeal by the plaintiff from trial judgment dismissing his medical negligence action against the hospital and a nurse. The appellant suffered a leak because of bowel surgery. He sued for damages based on the delay in treatment because the leak was not detected for some time. The trial judge found that the appellant failed to establish that, but for the alleged delay in treatment, his injuries would not have occurred. She found that there was no evidence articulating what specific injury the appellant suffered that could have been avoided as he was already in septic shock and his injuries were inevitable before the alleged negligence occurred. The appellant argued the trial judge erred in failing to find that the nurse was negligent in her treatment of the appellant by not reporting the appellant’s deteriorating condition immediately, thus delaying treatment of the leak. The hospital also negligently failed to ensure that the antibiotic was properly administered to him which was a medication error. That medication error combined with the nurse’s negligence exacerbated the appellant’s injury and therefore caused or contributed to it.

HELD: Appeal dismissed. The trial judge’s findings regarding the nurse’s conduct were available to her on the evidence and did not constitute palpable and overriding errors. The trial judge’s findings that the appellant did not prove negligence on the part of the nurse was upheld. The trial judge’s finding that the first dose of antibiotic was administered to the appellant after his resuscitation was available to the judge on the evidence and did not constitute a palpable and overriding error. The trial judge’s interpretation of the doctor’s order as to when the antibiotic was to be administered was open to the judge on the evidence and did not constitute a palpable and overriding error. The trial judge’s findings on causation precluded a finding of negligence on the part of either the nurse or the hospital. The defence expert evidence that most of the appellant’s outcome was unavoidable was devastating to the appellant’s case. The trial judge’s findings showed that she was not confused about the proper test for causation. The findings of the trial judge were that the appellant failed to establish any harm, because his outcome would have been no different whether or not the alleged negligence occurred.

White v. St. Joseph's Hospital (Hamilton), [2019] O.J. No. 2101, Ontario Court of Appeal, P.D. Lauwers, C.W. Hourigan and G.I. Pardu JJ.A., April 25, 2019. Digest No. TLD-May272019008