Over the course of my 20 years in practice, I have
received many calls from patients who have been dissatisfied with their care
from doctors. One main complaint is that
the patient feels as if the doctor dismissed their nagging concern that
something was wrong - i.e. didn't send them for a proper scan or seemed
dismissive of those concerns.
On the flip side, I've spoken informally with a
great number of doctors who tell their side of the story - i.e. patients who
are not quite satisfied no matter what level of service you provide to them and
those difficult-to-please patients who are heavy users of the OHIP system, with
an endless array of complaints that never seemed to have an objective basis in
science.
One of piece of glass was apparently 3.5 cm x 4 cm. This large paper clip measures approx 3 cm x 4
cm
Why
Is This Doctor Denying Liability?
In a recently reported decision, Perri
v Toronto Western Hospital, 2015 ONSC 3367 (CanLII),
the plaintiff hurt herself by falling on some glass, getting some glass stuck
in her buttocks.
She went to the emergency department at Toronto
Western Hospital and appears to have advised the doctor who saw her that she
felt glass, still stuck inside her buttock, thereby asking the doctor to check
same. The doctor appears, from this
decision, to admit that the patient told him that she continued to feel glass
inside her buttock.
Nonetheless, the doctor apparently did not order a
scan to test her concerns and instead sewed her up.
Later, after a merry-go-round of referrals from one
doctor to the next, the plaintiff finally received elective surgery and from
her buttocks were removed:
·
A
piece of glass that measured 3.5 by 4 cm;
·
A
piece of glass measuring 7 cm by 2 cm; and
·
A
piece of glass measuring 3 cm by 1 cm.
The decision
reads at paragraph 7, "...These pieces of glass had penetrated the
gluteal muscle and the muscle had been cut to the bone. The surgery was
successfully completed and there were no post-operative issues."
One piece of glass was apparently 7 cm x 2 cm. These staples measure approx 7cm x 2.2 cm
Wait, The Doctor Was Trying to End the
Lawsuit Early?
Yes, this decision arises from the doctor's attempt
to end the lawsuit early and "beat" the plaintiff - i.e. not paying
the plaintiff any monies and ending her lawsuit against him.
Why is this and how could this happen, you ask? Well, in civil lawsuits, there is a motion procedure
called a 'summary judgment' which allows one party to try and obtain an end
result to part or all of the lawsuit, at a very early stage.
So, the doctor here was trying to use the procedure,
to his advantage, primarily on the basis that the plaintiff, by not having a proper
medical expert opinion in her favour, had failed to provide sufficient evidence
of liability upon the doctor.
Huh?
The Doctor's Defence: Patient's
"Feeling" That Something Was Wrong Is Not A Clinical Symptom That Must
Be Taken Into Account
This was, on this motion, the crux of the doctor's
argument - that the patient's feeling that something was 'wrong' or that
something was still inside her was not "clinical evidence" in the
context of what he had to take into account when deciding how to treat the
patient.
This was, without a doubt, an aggressive pre-trial
motion by the doctor, in an attempt to piece together (er, sorry) an argument
that the plaintiff had failed to produce sufficient evidence to justify this
lawsuit continuing.
One piece of glass was apparently 3 cm x 1 cm. This battery measures approx 4.5 cm x 1 cm
Wait, The Plaintiff Had Evidence in Support,
From the Plastic Surgeon!
Yes, the plaintiff did have support from her plastic
surgeon, stating that the emergency room doctor fell below the standard of care
in not ordering an x-ray or scan, based on the patient's complaint of continued
pain / feeling that something remained inside her buttocks.
But the emergency doctor cleverly argued, at this
motion, that the plastic surgeon was too qualified, over-qualified really, to
give an opinion in this matter – since the defendant doctor was an emergency
room doctor (and not a plastic surgeon).
That is, the plaintiff failed to obtain an opinion
from a regular-run-of-the-mill emergency doctor, who was of similar skill and
experience as the defendant emergency room doctor, to give an opinion as to
what the standard of care for an emergency room doctor should be.
The motions judge agreed at paragraph 20 - the
plastic surgeon was not the proper medical doctor to comment on the standard of
care expected of an emergency room doctor.
What Happens Now?
Fortunately for the plaintiff, the doctor's motion
here was unsuccessful. The plaintiff can
continue with her lawsuit.
One gap in the doctor's motion was that his own
expert report seemed to be unaware that the patient had complained, to the
emergency doctor, that she felt something still stuck inside her.
This lack of information rendered the doctor's expert
opinion ineffective for the purposes of this specific fact situation.
As a result, the doctor's insurer will have to pay
some legal costs to the plaintiff, for having to go through the summary
judgment process. The lawsuit will
continue and perhaps there will be an informal resolution of the litigation, at
some point.
Toronto Insurance and Personal Injury Lawyer
Insurance Law Geek
