In Armstrong v Ward, 2021 SCC 1 the plaintiff underwent a colectomy procedure performed by the defendant surgeon. Following the surgery, the plaintiff had post-operative issues and it was determined that her left ureter had a blockage which ultimately necessitated the removal of her left kidney.
The plaintiff brought a lawsuit claiming that, during the surgery, the defendant surgeon either touched the ureter with a cauterizing device or came too close to the ureter with the cauterizing device, which caused damage to her ureter. The defence argued that the surgeon had taken the necessary steps, including trying to protect the ureter, and therefore he did not breach the standard of care.
At trial, Justice Mulligan held that the standard of care required the surgeon to identify, protect and stay at least two millimeters away from the ureter. Justice Mulligan concluded that the defendant surgeon came within one to two millimeters of the ureter and therefore breached the standard of care, causing the damage to the plaintiff’s ureter.
The defendant surgeon appealed the trial decision to the Ontario Court of Appeal. On appeal, the majority held that if the trial judge could not identify an actual step the defendant failed to take, he was holding the surgeon to a standard of perfection. The majority held that if a trial judge proceeds on the basis that only negligence could have caused the injury, then all non-negligent causes must be considered and ruled out. There was also discussion about whether the trial judge had started at causation to figure out what caused the injury and then gone to standard of care, instead of working forward from standard of care to causation.
The Court of Appeal dissenting opinion, written by Justice Katherine van Rensburg, stated it was not that the trial judge was using a standard of perfection but that a prudent surgeon must not just take the steps or try to take them, but perform them with proficiency. She went on to hold that a trial judge is not required to consider all potential non-negligent causes of an injury when there is no evidentiary foundation to do so. Further, Justice van Rensburg held that there are some cases where determining what happened is different than causation, and the trial judge did not err by using this kind of analysis.
The plaintiff appealed the Ontario Court of Appeal decision to the Supreme Court of Canada. On January 18, 2021, the Supreme Court of Canada released their decision, ultimately adopting the dissenting opinion of Justice van Rensburg. The Supreme Court agreed that the surgeon had to meet a certain standard or else, even if they complete the steps and try their best, it can still be a breach of the standard of care. The Supreme Court further held that the use of on outcome-oriented approach, while generally avoided, can be necessary and does not automatically mean the trier of fact is conflating standard of care and causation.
This Supreme Court decision is an important achievement for plaintiffs in medical malpractice actions in Canada. The decision confirms that physicians will not be insulated from a finding of negligence solely by taking all the required steps, they must meet a certain level of proficiency in performing those steps. This decision is also significant in that it reinforces the fact that plaintiffs are not required to address and disprove every possible non-negligent alternative cause of an injury if the defendant has not raised it as a part of their theory.
Bogoroch & Associates LLP is experienced in all aspects of personal injury and medical malpractice litigation. We have the confidence and skill to advance your motor vehicle accident or medical malpractice claim to settlement or trial while helping you navigate the complex medical, legal, and insurance issues.
Our experience, commitment to excellence, and reputation have long been recognized. Our founding partner, Richard M. Bogoroch, has been recognized as a leading personal injury lawyer by The Canadian Legal Lexpert Directory and by The Best Lawyers in Canada. The Canadian Legal Lexpert Directory and The Best Lawyers in Canada are two highly regarded lawyer rating publications.
If you or your loved one has been injured in an accident or believes that you are a victim of malpractice or negligence, reach out to a personal injury or medical malpractice lawyer to understand if you too have a claim. Please contact any of our personal injury lawyers at Bogoroch & Associates LLP for a free consultation.
Contact a personal injury lawyer near me by calling 1-866-599-1700 or visit our Contact page for all inquiries.
