Medical malpractice cases are very complex.
This series of articles by BC personal injury and medical malpractice lawyer Paul Mitchell, Q.C., will explain the Top 7 things you need to know about medical malpractice cases, including when a medical malpractice case should be commenced, the legal and medical issues involved, and why they are so hard to win.
Paul Mitchell Q.C has successfully concluded BC medical malpractice cases for amounts up to 3.5 million in individual cases.
Find out what is involved in these difficult cases.
#5 Causation in Medical Malpractice Cases
If the court finds that the doctor was negligent, on the balance of probabilities, it is then necessary to overcome the next hurdle, which is dealing with the complex issue of proving “causation”.
This means you must prove that the negligence of the doctor (if proven) actually caused or contributed to the injury or harm.
The plaintiff has to prove, on the balance of probabilities, with expert evidence, that had the treatment or care been done differently , the result would have been better.
This is often very complex, and is often very difficult to do.
The doctor may have been negligent in providing care to a patient, but sometimes tha negligence did not cause the injury or result suffered by the patient.
For example, if the allegation is that a disease, say cancer, was not diagnosed earlier, you have to prove that the failure to properly diagnose the cancer likely caused the symptoms to be greater, or the result to be substantially different.
This type of opinion is sometimes hard to obtain from an expert.
Without good evidence on this issue, you have little chance of success.
Some medical malpractice caases are easy when it comes to causation. Operating on the wrong limb for example.
Others are not so easy. In the cancer scenario described above, for example, assume the diagnosis was delayed, and the patient ends up with extended pain and treatment, but he/she survives.
The defence’s usual position is that, even if the cancer was diagnosed earlier, the treatment would have been the same, and the outcome would have been the same, so what are the damages?
They would argue the damages would be minimal, or nil. They would argue that the causation was not proven by the plaintiff, that it was too “remote” from the negligent care to cause the outcome.
In the cancer scenario described above, assume the patient dies from the cancer. The onus is on the plaintiff ( family in this case, in a wrongful death lawsuit) to prove, with expert evidence, that the earlier diagnosis would have resulted in the patient living. The problem with many of these cases is the lack of a definitive “crystal ball”.
The defence will argue that the earlier diagnosis would have made no difference. The patient would likely have died anyway.
It is completely different than proving the act of negligence. You must prove the act of negligence likley caused or materially contributed to the outcome.
The evidence from the plaintiff’s experts must be that it is “probable”, not just “possible” that the negligent act or care caused the result.
Where there are multiple potential causes for a given outcome, the proving of causation becomes even more difficult.
In many cases, the cause of the injury or outcome is very complex, and not clear. It may be spread among many health care providers , including doctors, nurses, hospitals, medications, medical technicians etc.
This often results in many parties being named in the lawsuit, which can drive up the plaintiff’s costs dramatically. You require expert evidence on each parties negligence, and causation, from a variety of different experts.
The judge can also allocate blame between several parties. For example, if causation is found by the judge, he/she may find a doctor was 75% at fault, and the nurses were 25% at fault.
The lawsuit may result in the various medical providers pointing the fingers at each other, trying to deflect the blame.
In BC, all doctors are insured by a malpractic insurance company out of Toronto. The BC Hospitals, and nurses, are under the Ministry of Health, and are represented in medical malpractice actions by the Risk Management Branch of the BC Government.
These two insureres are often at odds with each other, and sometimes blame the other for the problem.
The plaintiff has to prove on the balance of “probabilities”, that the negligent act of one or more of the defendant health care providers caused the result.
The cases involve legal arguments involving the “but for test”, and “ material contribution” of negligent behaviour towards the final outcome.
The defence has an advantage over the plaintiff in the issue of causation because, as described in a previous article, as they will have numerous experts lined up to support their position.
The plaintiff often has a difficult time finding doctors/nurses who will testify as an expert witness against other doctors/nurses.
So in evaluating the potential success of a medical malpractice case, the lawyer will look at the ability to actually prove the negligence involved, plus the difficult issue of being able to prove that the negligent care “caused or contributed to “ the outcome, all on a balance of probabilities.
No easy task in most cases.
Paul Mitchell, Q.C.is a BC personal injury lawyer who has extensive experience with severe injury claims, including brain injury claims, spinal injury claims, death claims, ICBC claims, medical malpractice claims, and other catastrophic injury claims.
He acts for injured clients all over BC and Alberta, and will not act for ICBC or any other insurance company.
For more information on this article, or for a confidential discussion of your injury claim, contact Paul Mitchell, Q.C. at 250-869-1115 (direct line), or send him a confidential email at [email protected]
