Howie, Sacks & Henry LLP – Personal Injury Law – Neil E. SacksRichard Selzer, an American surgeon and author, once wrote “[i]f people understood that doctors weren’t divine, perhaps the odor of malpractice might diminish.” To err is human, and doctors are, unfortunately, not infallible. While society holds doctors in very high esteem and rightly so, doctors like all of us can be liable for their mistakes – particularly when those mistakes result in human suffering. Such mistakes come in the form of both action and omission, and include misdiagnosis of important injuries or disease, such as those affecting the spinal cord. In this article, we review the nature of medical malpractice in the context of spinal cord injury.

11812924-2804x1870Nature of Spinal Cord Injury

Occurrence & Causes

A spinal cord injury typically occurs when a traumatic event causes (1) direct damage to spinal cord cells or cuts the nerve pathways which carry messages throughout the spinal cord; and/or (2) indirect damage to the bones (vertebra), soft tissues (muscles), and vessels surrounding the spinal cord. Spinal cord injuries may result from sports accidents, falls, and motor vehicle collisions, or from infection. Common causes of spinal cord injuries include:

  • Contusions – bruising of the spinal cord;
  • Compression – pressure on the spinal cord; and
  • Lacerations – cutting or tearing of nerve fibres within the spinal cord.

These injuries may result in paralysis to varying degrees, such as paraplegia (paralysis of the lower body, including legs), and quadriplegia (paralysis of the arms and legs).

What is Medical Malpractice?

Medical negligence arises when a doctor breaches the requisite standard of care. A doctor is not held to a standard of perfection. The test for standard of care is reasonableness. A doctor typically fails to act in a reasonable manner if he or she fails to:

  • Obtain informed consent from a patient;
  • Properly diagnose a patient’s condition; and/or
  • Provide appropriate treatment to a patient.

The standard of care is determined by the circumstances, symptoms, and condition of a particular patient together with the doctor’s specialized skills and knowledge. The essential issue is whether the doctor in question exercised the same degree of care and skill which could reasonably be expected of a normal, prudent medical professional of the same experience and standing, in similar circumstances.

Informed Consent

The Health Care Consent Act[1], and the common law require doctors to disclose to patients the material risks associated with treatment, address all questions and concerns of the patient, and obtain informed consent from the patient before proceeding with a proposed course of treatment or medical procedure. Such disclosure includes informing a patient of the risks specific to their unique condition.

In these circumstances, there must be reasonably sufficient communication between the doctor and patient so that the patient’s questions and concerns can be addressed by the doctor. Informed consent presumes that a patient has the mental capacity to make a decision about their treatment (the concept of capacity is dealt with in the Health Care Consent Act and the Substitute Decisions Act[2]; it is beyond the scope of this blog, but may be addressed in later posts).

Medical Malpractice and Spinal Cord Injuries

Medical negligence which leads to spinal cord injuries includes:

  • Misdiagnosing a medical condition which then results in spinal cord damage;
  • Performing a procedure on the spine, such as an epidural or spinal block, or surgery on the spine in a manner which falls below the requisite standard of care; and
  • Omitting to treat post-surgical complications efficiently and effectively.

Causation

Once a breach of the standard of care is established, the question then becomes whether the breach caused the patient to suffer injury. This question of causation is one which is ultimately determined by a court. However, even if a patient cannot conclusively prove that a doctor caused their injury, the doctor does not necessarily avoid liability. For legal purposes, causation is not determined with surgical precision but is established where a patient proves, on a balance of probabilities, that the doctor caused their injury.

When Misdiagnosis Creates Negligence

Diagnosing a patient’s condition may be seen as involving various steps: a doctor gathering patient history, performing a clinical exam, and determining whether laboratory tests or medical imaging are necessary; looking for the key indicators of illness; taking all of the information and comparing it to a knowledge-base of conditions.

Misdiagnosis generally results from three types of failures (which may not necessarily occur in isolation):

  1. No-Fault Errors: a patient actively undermines a doctor’s ability to accurately diagnose a condition by omitting or embellishing key information;
  2. System-Related Errors: laboratory tests or medical imaging are faulty or organizational failure impedes an accurate diagnosis; and
  3. Cognitive Errors: a doctor has insufficient or inaccurate knowledge, the symptom gathering technique is flawed, or the information is not synthesized properly.

Therefore, in a situation of misdiagnosis, medical malpractice typically occurs as a result of system-related errors or cognitive errors. In legal parlance, misdiagnosis may be due where a doctor fails to detect and diagnose a condition that could reasonably be detected and diagnosed by a normal, prudent doctor of the same experience and standing when faced with a similar pattern or constellation of symptoms and/or test results.

Misdiagnosis may lead to improper treatment, or no treatment, which can have serious and significant physical and emotional effects. For example, if a spinal tumour, abscess, herniated disc, or fracture of the spine is left untreated, it can result in permanent loss neurological function, including paralysis of limbs, loss of bowel and bladder control, and loss of sexual function.

For more information about misdiagnosed spinal cord injuries and medical malpractice, please contact medical malpractice lawyer Neil E. Sacks at 416-361-5811 or nesacks@hshlawyers.com.


[1] Health Care Consent Act 1996, S.O. 1996, c. 2, as amended

[2] Health Care Consent Act, 1996, S.O. 1996, c. 2 as amended; Substitute Decisions Act, 1992, S.O. 1992, c.30, as amended.

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Among the best in Canada

Since 2011 Canadian Lawyer Magazine rated us one of the top personal injury law firms in Canada. Why? With close to 20 years helping accident victims and their families, our firm understands the laws that affect your rights to compensation because we’ve helped shape those laws in favour of accident victims.