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HEALTH CARE PROFESSIONALS - Liability (malpractice) - Negligence - Causation - Failure to diagnose - Standard of care - Particular professions - Doctors - Practice and procedure - Evidence

Tuesday, February 07, 2017 @ 10:21 AM  


Appeal by the plaintiff, Timlick, and cross-appeal by the defendant, Dr. Heywood, from a judgment in a negligence action alleging medical malpractice. In 1983, the defendant was the physician who delivered the plaintiff and acted as his family doctor for the first two years of his life thereafter. The plaintiff appeared healthy, notwithstanding being born with a large head. However, as the plaintiff grew up, he struggled with psychological, cognitive, executive functioning and neurological problems. In 2007, the plaintiff's symptoms caused him to undergo a brain MRI. The procedure revealed severe obstructive hydrocephalus, most likely caused by a benign tumor present at birth. The plaintiff underwent a surgery that resulted in a significant improvement in his symptoms. The plaintiff subsequently sued the defendant alleging a negligent failure to diagnose the hydrocephalus while under his care. The trial judge concluded the defendant failed to meet the standard of care of a general practitioner between 1983 and 1985. The breach arose from the defendant's failure to appreciate the significance of the head circumference measurements of the
plaintiff that he was charting, and by failing to undertake further investigation. The trial judge applied the "but for" test for causation, and, with one exception, found that the plaintiff failed to establish causation. The trial judge found that the surgery that improved the plaintiff's condition was not available until 2002. Damages for the delay in diagnosis between 2002 and 2007 were quantified at $25,000. The plaintiff appealed and the defendant cross-appealed.

HELD: Appeal dismissed and cross-appeal allowed. Expert evidence was essential to establish the relevant standard of care and determine whether it was met by the defendant. The trial judge erred in finding that the plaintiffs' experts were qualified to opine on the specific question of the standard of care of a general practitioner between 1983 and 1985. One expert relied upon by the trial judge was presented as a highly specialized expert in the diagnosis and treatment of hydrocephalus, and the other as a pediatric neurosurgeon. Neither shared any professional commonality with the defendant's general practice. In the absence of expert evidence on the applicable standard of care, the Court was not in a position to assess a physician's negligence. It was therefore a palpable and overriding error to find the defendant breached the standard of care. In addition, the trial judge misapprehended the evidence related to whether the plaintiff would have undergone surgery in 2002 based on the timing of the reported deterioration of his symptoms. The trial judge did not otherwise err in the approach to causation. The damages award was accordingly set aside and the plaintiff's action was dismissed.

Timlick v. Heywood, [2017] M.J. No. 12, Manitoba Court of Appeal, A.D. MacInnes, D.M. Cameron and J. leMaistre JJ.A., January 16, 2017. Digest No. 3637-009