No remedy in medical negligence: fault without causation (1)
Briante v. Vancouver Island Health Authority, 2014 BCSC 1511, which I first discussed, here, a few days ago, is a stark reminder that, even in medical negligence, fault alone is not enough. The causation requirement, whatever it is held to mean, must still be satisfied. The action failed, ultimately, because, on the evidence, the fault of neither of the negligent nurse nor negligent physician, could validly be held to satisfy the balance of probability requirement that the negligence have been necessary for the occurrence of the injury. There was no doubt that there was a least a possibility of a connection, but that was not enough. Put another way, although the trial judge did not express the situation this way, the most the plaintiffs established was a less than 50% chance that, had the nurse or physician not been negligent, the injury would not have occurred. But that, as a matter of law, was not enough, if the governing test for causation was the but-for test (as it was).
Briante was a case where the required medical treatment was not provided: the extreme version of the case of delayed treatment. The law governing causation in those cases is clear: loss of less than a probable chance that timely treatment would have made a difference is not enough. Sharpe, J.A. wrote for the Ontario Court of Appeal in Cottrelle v. Gerrard (2003), 67 OR (3d) 737, 2003 CanLII 50091 (ONCA), leave to appeal to SCC denied April 22, 2004:
 I agree with the appellant’s submission that in an action for delayed medical diagnosis and treatment, a plaintiff must prove on a balance of probabilities that the delay caused or contributed to the unfavourable outcome. In other words, if, on a balance of probabilities, the plaintiff fails to prove that the unfavourable outcome would have been avoided with prompt diagnosis and treatment, then the plaintiff’s claim must fail. It is not sufficient to prove that adequate diagnosis and treatment would have afforded a chance of avoiding the unfavourable outcome unless that chance surpasses the threshold of “more likely than not”.
 In my view, the respondent established no more than the loss of a less than 50 per cent chance of salvaging her leg had the appellant not been negligent. Unfortunately for the respondent, under the current state of the law, loss of a chance is non-compensable in medical malpractice cases: see Laferrière v. Lawson,  1 S.C.R. 541, 6 C.C.L.T. (2d) 119; St-Jean v. Mercier, 2002 SCC 15,  1 S.C.R. 491; Hotson v. East Berkshire Area Health Authority,  A.C. 750,  2 All E.R. 909 (H.L.). The trial judge did not explain the basis for her conclusion that “the loss of chance doctrine is not applicable to this case.” In view of the evidence I have reviewed, and in view of the respondent’s concession that there was no evidence to suggest that it was more than likely [page751] a better outcome would have followed had the appellant acted with care, the trial judge’s finding reveals either a misapprehension as to the law or a palpable and overriding error on the facts.
 The exclusion of recovery for the loss of a chance in medical malpractice cases has been criticized as being unduly rigid and harsh: see, Klar, supra, at pp. 403-05; John G. Fleming, “Probabilistic Causation in Tort Law” (1989) 68 Can. Bar Rev. 661; S.M. Waddams, “The Valuation of Chances” (1988) 30 Can. Bus. L.J. 30; S.M. Waddams, The Law of Damages, looseleaf (Toronto: Canada Law Book, 2002) at 13.260-13.370; Salvatore Mirandola, “Lost Chances, Cause-in-Fact and Rationality in Medical Negligence” (1992) 50 U. T. Fac. L. Rev. 258. Recovery based upon the loss of a chance would require substantial reduction of the damages to reflect the value of the less than 50 per cent chance that was lost. In any event, the authorities cited in para. 36 preclude us from considering such an award.
The ONCA repeated that point in 2011 in Salter v. Hirst, 2011 ONCA 609.
 We agree with the trial judge that the reports tendered afford no evidence that Dr. Hirst’s negligence caused or contributed to Mr. Salter’s paraplegia. There is no issue that “loss of a chance” is not compensable in medical malpractice cases. The plaintiff must prove on the balance of probabilities that, but for the doctor’s negligence, the unfavourable outcome would have been avoided with prompt diagnosis and treatment: Cottrelle v. Gerrard (2003), 67 O.R. (3d) 737,  O.J. No. 4194 (C.A.), at paras. 25, 36.
Since I’m now based in British Columbia., and writing about a B.C. decision, I’ll add the leading local authority, even though the SCC is a “home” authority, too: Ediger v. Johnston, 2011 BCCA 253 at para. 92, rev’d on other grounds  2 SCR 98, 2013 SCC.
This link will take readers from other provinces to the CanLII search that lists the case law authorities for other Canadian jurisdictions, as of Aug 17, 2014.
Regardless of one’s position on the legal validity of the result, the result is a reminder (for those old enough to remember, or otherwise be aware of) these statements and calls for reform (outside of the tort system) in cases such as Ferguson v Hamilton Civic Hospitals (1983), 40 OR (2d) 577, 1983 CanLII 1724 (ON SC) aff’d (1985) 50 OR (2d) 754,1985 CanLII 2045 (ONCA). The first quotation, below, is from the Ferguson trial reasons (on the last page). The second is the complete text of the appellate reasons affirming the dismissal of the action.
I must add a personal note. In the conclusion to the reasons for judgment of Linden J. in Davidson v. Connaught Laboratories et al. (1980), 14 C.C.L.T. 251, there is to be found, in more or less precatory language, an eloquent expression of concern about the requirement of our law that fault exist as a condition precedent to the receipt of compensation in matters of this kind. I cannot leave this case without following Mr. Justice Linden’s example. I confess to a feeling of discomfort over a state of affairs, in an enlightened and compassionate society, in which a patient, who undergoes a necessary procedure and who cannot afford to bear the entire loss, through no fault of his and reposing full confidence in our system of medical care, suffers catastrophic disability but is not entitled to be compensated because of the absence of fault on the part of those involved in his care. While it may be that there is no remedy for this unfortunate and brave plaintiff and that this shortcoming should not be corrected judicially, there is, in my view, an urgent need for correction.
We can deal with this matter very shortly although that does not mean we have not given very serious consideration to the submissions made. As indicated by the trial judge this is a sad case and the result of the medical treatment has been a very unfortunate and unhappy one for the plaintiff.
At the opening of the appeal we were advised by counsel that the appellant, William Ferguson, has died since the trial and that an order of revivor has been made.
We are not in a position to review in a critical way the findings made by the experienced trial judge based on the evidence in this case. There was ample evidence to support his conclusion, in applying the objective test, that the appellant, as a reasonable patient in his position, would have chosen the medical procedure which had such unfortunate consequences. Nor are we persuaded that the failure to disclose the alternatives to that procedure fall within the meaning of “misrepresentation” as discussed by Chief Justice Laskin in Reibl v. Hughes, 1980 CanLII 23 (SCC),  2 S.C.R. 880, 114 D.L.R. (3d) 1, 14 C.C.L.T. 1. It should be noted that the suggested alternatives were, in reality, alternatives to the possible recommended surgical procedure if the investigative procedure, which had such tragic consequences, had confirmed the provisional clinical diagnosis.
Counsel for the appellant agreed that he could not rely on res ipsa loquitur on the facts of this case and he limited himself to the two submissions to which we have referred.
Accordingly, for the very full and thoughtful reasons given by the learned trial judge the appeal is dismissed. We would not want to leave this case without adding that we are in complete sympathy and agreement with the penultimate paragraph of the learned trial judge’s reasons. OHIP is the product of a socially conscious society, but we agree that in situations such as the instant one “an enlightened and compassionate society”, to use the words of the learned trial judge, should do more.
In the result, accordingly, the appeal is dismissed without costs.
It wasn’t the absence of fault that was the reason why the Briante action failed, but the statements in Ferguson are still applicable.
“Does it suggest the tort system is the wrong mechanism, or that the tort system should evolve?” The literature is vast on both alternatives, and others.
“tragedy” in the sense of the loss suffered by the Plaintiff, and family, but also in the social cost- which is a tragedy for everybody, and if our tort system is designed to assign the costs of that to the “at fault” party, it seems not to work well in medical malpractice situations,which is admittedly a value laden judgment- but, take the hypothetical of 48% certainty on causation. That equals zero recovery. Then multiply that by ten or a hundred cases. I skipped stats in school, but it seems to me that a strong argument can be made that out of one hundred cases, a significant number failed just because of difficulties of proof, and even if they did not, an argument can be made that the increase in risk justifies some allocation of cost. Does it suggest the tort system is the wrong mechanism, or that the tort system should evolve?
One response to your use of “tragedy” is the instance of very slight negligence and extensive loss. Another is, if one goes down the route you’re suggesting, what’s the principled reason for restricting the change to medical negligence? And, why require fault at all?
Requiring a person to pay “full” – whatever full means – reparation for something he or she probably did not cause is inconsistent with the traditional rationale for tort law. It’s also, I think, inconsistent with proportional recovery. I include, in “traditional rationale”, the mainstream jurisprudential understanding of corrective justice as championed by Prof. Ernie Weinrib and as accepted by the SCC in Clements, without acknowledging that that rationale is inconsistent with the version of material contribution to risk doctrine created by the Court.
That doesn’t mean one couldn’t constructive a different system for accident reparation where recovery is permitted, even proportional recovery, but that’s not the current system or rationale. The “no-fault” accident benefit regimes in motor vehicle accident are one example. New Zealand is a wider example. The literature is vast.
Given the difficulties inherent in proving causation in medical cases, it is especially tragic when that “more likely than not” threshold prevents recovery in a case where negligence is established (a hard enough challenge on it’s own).