Plaintiffs in medical malpractice cases involving delayed diagnosis and treatment are having trouble establishing causation, according to interviews conducted by Canadian Lawyer magazine. The most recent example, White v. St. Joseph’s Hospital (Hamilton), was decided in the Ontario Court of Appeal and could spell trouble for medical malpractice lawyers and their clients.

White v. St. Joseph’s involved a complication from a routine surgery suffered by Paul White, the plaintiff. The complication, a small bowel leak, went unnoticed following the procedure until a nurse noticed White’s mottled limbs. The previous night, White had experienced new pain, reduced urine output, and low blood pressure. He alleged in his suit that the hospital’s failure to immediately diagnose and treat the complication resulted in an extended hospital stay, remedial surgery, and a later, unrelated bowel perforation.

Judges in the Court of Appeal sided with the lower court’s opinion that White could not prove negligence caused or contributed to his injuries. An expert witness testified that “most of Mr. White’s outcome was unavoidable,” according to Canadian Lawyer, and the appeal judges awarded $20,000 in costs to the respondents.

“One of the things that this case demonstrates is the real challenge in establishing causation in a medical negligence case when there are both negligent and non-negligent causes,” the plaintiff’s lawyer told the magazine. “In this case, it was alleged that there was a delay in treatment, but of course there was an underlying illness to begin with. And sorting out what materially contributes to a plaintiff’s loss can sometimes by very challenging as this case demonstrates.”

White vs. St. Joseph’s reaffirms the Supreme Court’s decision in Clements v. Clements, 2012 that “the test for showing causation is the ‘but for’ test. The plaintiff must show on a balance of probabilities that ‘but for’ the defendant’s negligent act, the injury would not have occurred.”

“In an action for delayed medical diagnosis and treatment, a plaintiff must establish that the delay caused or contributed to the unfavourable outcome,” wrote Court of Appeal Justice Peter Lauwers in his decision. “Appellants’ counsel is correct that there was evidence that delay in treatment can have adverse consequences on a patient’s outcome. What is missing here is an actual link between the delay in diagnosis and treatment, and Mr. White’s injuries.”

For medical malpractice lawyers, the ‘but for’ test is a significant hurdle to securing compensation for victims of delayed diagnosis and treatment. However, these mistakes can cause serious injuries – if you or a member of your family has been hurt because of delayed diagnosis and treatment, contact Neinstein Personal Injury Lawyers today to learn how we can help. Our experienced team of medical malpractice lawyers will be happy to discuss your case and provide guidance as you consider a claim.

Greg Neinstein

Greg Neinstein, B.A. LLB., is the Managing Partner at Neinstein Personal Injury Lawyers LLP. His practice focuses on serious injury and complex insurance claims, including motor vehicle accidents, slip and fall injuries, long-term disability claims and insurance claims. Greg has extensive mediation and trial experience and has a reputation among his colleagues as a skillful negotiator.
Greg Neinstein