Medical negligence takes place when healthcare providers, in the performance of their professional duties:
- fail to exercise due diligence or the reasonable care expected of them;
- fail to uphold the appropriate standards of the medical industry; or
- fail to act in time or has not acted at all when called upon to do the same
This may result in physical injuries, psychological or emotional trauma, or even death of the patient. In case of death, the patient’s heirs or estate have the right sue.
Canadian laws on medical negligence
Suing for civil liabilities under medical negligence falls under Canada’s common law. The provisions on criminal negligence (sections 219-221) and culpable homicide (section 222(5)(b)) of Canada’s Criminal Code may also apply.
What are examples of medical negligence in Canada?
Some examples of medical negligence in Canada where patients, their heirs, or their estate may sue include:
- Prescription errors
- Misdiagnosis or failure to diagnose
- Surgical errors
- Defective medical devices
- Birth injury malpractice
Canada’s courts have rendered decisions which involve these examples of medical negligence. Some of these notable cases are discussed below:
The Estate of Mary Fleury et al v. Olayiwola A. Kassim, 2022 ONSC 2464
Misdiagnosis as one of the examples of medical negligence in Canada is illustrated in the case of The Estate of Mary Fleury et al v. Olayiwola A. Kassim.
In 2011, Fleury suffered from appendicitis. She had surgery to have her appendix removed. When its samples were sent to Dr. Kassim for examination, he found no signs of any malignancy.
In 2015, Fleury underwent laparoscopy after she reported bloating and pain on the right side of her abdomen. During the laparoscopy, Fleury’s surgeon noticed evidence of cancer in Fleury’s abdomen. It was discovered that Fleury had appendiceal cancer.
Fleury died in 2016 from complications related to appendiceal cancer.
The Superior Court of Ontario held that Dr. Kassim committed a misdiagnosis over Fleury’s appendiceal cancer. The Court found that Dr. Kassim did not examine Fleury’s samples “with the care and expertise expected of a normal, prudent anatomic pathologist with the same level of experience and standing.” Fleury would have been alive today were it not for Dr. Kassim’s misdiagnosis.
The plaintiffs were awarded a total of C$215,000 for non-pecuniary damages and C$1,053,183 for pecuniary damages.
McCoy v. Choi, 2022 ONCA 403
The case of McCoy v. Choi is one of the recent examples of medical negligence for misdiagnosis. McCoy claimed C$5 million in damages for Dr. Choi’s misdiagnosis. Head over to this link to read more:
Boyd et al. v. Edington et al., 2014 ONSC1130
One of the case law examples of medical negligence for misdiagnosis is Boyd et al v. Edington et al.
In 2015, Danielle Boyd was rushed to the hospital after feeling sick and experiencing what could have been symptoms of stroke. Dr. Edington initially diagnosed Boyd with hypertensive crisis, migraine, and alcohol use. She was also prescribed medication to lower her blood pressure and was kept in the hospital for observation.
Over the next few hours, the nurse noticed Boyd’s changing condition and reported it to Dr. Edington. However, Dr. Edington only examined Boyd after three hours. It was then that Boyd was transferred to the neurology department of the hospital and was administered with an anticoagulant. At that time, Boyd had already suffered a major stroke, which paralyzed her from the neck down.
The Court held that Dr. Edington did not meet the standard of care which resulted in a misdiagnosis:
- when he failed to diagnose that Boyd was already having a major stroke
- when he wrongly prescribed Boyd with medication to lower her blood pressure when it should not have been so (during an acute stroke, a patient’s blood pressure should not be lowered)
- when he did not reassess Boyd and did not call the attention of the neurology department immediately, after the nurse reported about Boyd’s changing condition
The Superior Court of Ontario awarded C$15 million in favor of Boyd.
Armstrong v. Ward, 2021 SCC 1
The case of Armstrong v. Ward is an example of medical negligence in surgical errors.
In 2010, Karen Armstrong underwent a surgery called colectomy to remove her colon. Her surgeon was Dr. Ward, the defendant in this case.
Weeks after the surgery, Armstrong began to experience abdominal pains. It was later discovered that the surgery conducted by Dr. Ward had mistakenly blocked her left ureter with scar tissue, damaging her left kidney. She needed another operation to remove it.
The Supreme Court of Canada upheld the arguments of Armstrong and held that there was a breach of the standard of care by Dr. Ward during Armstrong’s colectomy. In siding with Armstrong, the Court said that in a medical malpractice case, the plaintiff is not expected to disprove every possible theory that the defendant might argue. This holds true for those that are not raised in trial but only on appeal.
While the plaintiff in a medical malpractice case has the burden of proving the existence of all its elements, the plaintiff does not need to specify how their doctor (or surgeon in this case) was negligent. Since an ordinary patient cannot know what happened during the surgery, ruling otherwise would create an imbalance between the plaintiff (the patient) and the defendant (the doctor or surgeon).
The trial court awarded damages worth C$1.3 million, and this was upheld by the Supreme Court.
Find out how much can you sue for medical malpractice in Canada here.
Crawford (Litigation guardian of) v. Penney, [2004] O.J. No. 3669
A case of birth injury as one of the examples of medical negligence is found in the case of Crawford v. Penney.
The case is from 1983. During Melissa Crawford’s birth, her shoulder lodged in the birth canal after induction. Her physicians, Dr. Brian Penney and Dr. Greg Healey, eventually freed her after about 15 minutes. However, due to the oxygen deprivation during these 15 minutes, Crawford sustained serious brain injuries. This resulted in Crawford being a nonverbal quadriplegic with cerebral palsy.
The Court held that the physicians were indeed negligent in their care of Melissa’s mother, Jeanette Crawford, during the pre-natal and perinatal stages.
This Court decision provided for an extensive basis in computing the award of damages for future cases of medical malpractice. In this case, the plaintiff’s life expectancy, future loss of income, and future care expenses were taken into consideration in the computation of damages.
The Court awarded Melissa Crawford’s family C$10 million in damages.
To learn more about other examples of medical negligence, or if you’re suing for medical negligence, consult with one of the Lexpert best-ranked best medical negligence lawyers.