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HEALTH CARE PROFESSIONALS - Liability (malpractice) - Causation

Wednesday, February 05, 2020 @ 6:24 AM  


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Appeal by the defendant, Dr. Colin Ward, from a judgment finding him liable to the plaintiff Karen Armstrong for an injury during surgery. Dr. Ward performed a colectomy surgery on Armstrong to remove her colon. Armstrong alleged that Dr. Ward performed the surgery negligently, causing injury to her left ureter, a tube that carried urine from her left kidney to her bladder. The left ureter was blocked or "strictured". The blockage was so significant that damage was ultimately caused to Armstrong’s left kidney, which had to be surgically removed. At trial, the judge found that Dr. Ward breached the standard of care, and that the breach caused Armstrong's ureter injury in law and fact. The judge also found that Dr. Ward caused Armstrong's injury by coming within one or two millimetres of her ureter, causing damage leading to scar tissue and the eventual ureter blockage. That, in turn, caused the loss of Armstrong's kidney. Dr. Ward argued that the trial judge erred by imposing an improper standard of care.

HELD: Appeal allowed. The trial judge imposed an improper standard of care when measuring Dr. Ward's liability. The judge measured Dr. Ward's liability according to the goal a prudent surgeon would have when conducting the operation, rather than the means a prudent surgeon would use to attain that goal. The judge measured Dr. Ward's negligence by inquiring whether he succeeded in not coming within two millimetres of Armstrong's ureter with the LigaSure, instead of asking whether Dr. Ward took the steps that a reasonably prudent surgeon would take. Moreover, the judge made no finding that it was only by negligent acts or omissions that a LigaSure could be brought within two millimetres. Deployment within two millimetres of the ureter was a goal or result that was to be pursued. The trial judge accepted that Dr. Ward took steps to identify and protect the ureter. Despite that finding, the judge predicated liability on the result. That was an error of law. Having found that Dr. Ward took the steps that a prudent surgeon would take during the surgical procedure, the judge should have found that it was not proved that Dr. Ward breached the requisite standard of care. Had the judge properly conceived of the standard of care, it would not have been necessary for him to have conflated causation and standard of care decisions. In that sense, his doing so was in error, but that error was inextricably linked to the first and added nothing to the outcome of the appeal. The finding of liability was set aside, and the action dismissed.

Armstrong v. Royal Victoria Hospital, [2019] O.J. No. 6187, Ontario Court of Appeal, R.G. Juriansz, K.M. van Rensburg and D. Paciocco JJ.A., December 6, 2019. Digest No. TLD-February32020005