An Error In Clinical Judgment Requires Actually Exercising Clinical Judgment

In Ontario, in order to be successful in a medical negligence action, a plaintiff must prove a number of elements, including that the health care provider breached the standard of care of a prudent and reasonable practitioner in the circumstances, and that the breach of the standard of care caused, on the balance of probabilities, the harm suffered by the plaintiff.

Health care providers obligation to exercise reasonable clinical judgment

It is well accepted that a health care provider is not held to a standard of perfection. The standard is that of a reasonable and prudent physician in the circumstances. If a physician has reasonably exercised their clinical judgment, but that has resulted in an adverse outcome for the plaintiff, then there is no liability. The courts have opined that a physician should not be liable for "a mere error in judgment". The courts, however, have recognized that the proper exercise of clinical judgment requires weighing, assessing and evaluating such information as may be available – what "may" be available includes the results of tests or consultations that should have been carried out¹. In Boyd v Edington² (a case where the plaintiffs were successful in alleging a misdiagnosis and delay in treatment of a stroke),the court cited the following:

[11] The plaintiffs made reference to Justice Picard and Professor Robertson's treatise, Legal Liability of Doctors and Hospitals in Canada (4th ed. 2007), respecting diagnosis:

A number of cases have commented on the care, skill and judgment to be exercised by a doctor when formulating a diagnosis. In Wade v. Nayernouri, a patient suffering from severe headache, nausea, dizziness, numbness and photophobia was diagnosed in 15 minutes by a doctor employed in an emergency ward as having "migrainous headaches plus nervous overtone." In fact, he was in the early stages of a subarachnoid haemorrhage, and some days later, a recurrence caused his death. The Court found liability for a misdiagnosis, concluding that:

In my opinion the cases have established that an erroneous diagnosis does not alone determine the physician's liability. But if the physician, as an aid to diagnosis, does not avail himself of the scientific means and facilities open to him for the collection of the best factual data upon which to arrive at his diagnosis, does not accurately obtain the patient's history, does not avail himself in this particular case of the need for referral to a neurologist, does not perform the stiff neck tests and the lumbar puncture test, the net result is not an error in judgment but constitutes negligence. [Emphasis added in original.]

Thus, a thorough history, proper examination, appropriate tests, and consultations with colleagues and specialists where necessary, are clearly basic to a proper diagnosis. A reasonable doctor should also heed a patient's complaints during treatment for they may be harbingers of change in condition.

Proving a breach of the standard of care typically requires expert opinion evidence. It can be even more challenging when determining whether an adverse outcome after surgery is a recognized complication or as a result of medical negligence.

Medical malpractice claim upheld in Dallner v. Gladwell, 2024 ONSC 6557

The courts have grappled with when an adverse surgical outcome is a breach of the standard of care vs an error in clinical judgment in the case of Dallner v Gladwell, 2024 ONSC 6557. In this case, the Plaintiff experienced a rare and permanent brachial plexus nerve injury during shoulder replacement surgery. It was accepted that the cause of the injury was a stretching of the nerve during the surgery. The Defendant provided evidence of his usual practice (which met the standard of care) and argued that it was an error in clinical judgment in how much force to apply during the surgery which caused the nerve injury. The court held that while a surgeon must exercise judgment when assessing such things as how much force to apply, the surgeon must advert to the risks and balance the competing concerns when applying that judgment. The court held that, based on the evidence, including the extreme rarity of the injury, it was more likely that the defendant failed to recognize that he was applying excessive force (and therefore did not exercise any clinical judgment), which was a breach of the standard of care.

Clinical judgment or negligence?

Although health care providers will not be held liable for adverse outcomes that are as a result of an error in clinical judgment, it is imperative that they actually exercise their clinical judgment. A trier of fact will have to weigh the evidence and determine whether the health care provider followed their standard of practice, adverted to the risks and weighed the competing concerns, or whether the health care provider simply failed to recognize the situation and therefore failed to apply their judgment.

Footnotes

1. Smith v Liwanpo, [2008] OJ No 1542 (ON SC) at para 31, upheld at Smith v Liwanpo, 2008 ONCA 551.

2. Boyd v Edington, 2014 ONSC 1130, at 11 and 85

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