 Hi, so this is one of the health law primers or part of the health series That's run through Dalhousie University's Health Law Institute. This particular primer is about medical negligence. My name is Matthew Hoerter I'm part of Dalhousie's Health Law Institute. Contact details are there if you'd like to approach me to ask any questions about this content. The objectives for this primer are to describe the elements of negligence in Canadian law and Secondly, to think in the course of discussing those elements about how the standard of care, the second key element of negligence law, applies particularly to medical residents. Okay, so as I just said or indicated negligence is made up of elements. Canadian law or law generally tries to break concepts down like negligence into sort of sub parts and negligence is no exception. There are four elements. The first is that the physician or the defendant has to owe a duty of care. Secondly, here she has to be shown to have not met that duty of care. In other words, not to have met the standard of care that applies in the given situation. Thirdly, there has to be damage that's worthy of compensation and lastly, there has to be a causal link between the defendant's breach of the duty of care or standard of care and the injury that was actually suffered or the damage that was suffered. Those four elements can be thought of in terms of questions, right? When is the duty of care owed? How do courts determine what the standard of care is or should be? Thirdly, what kinds of damage count and last, what's the threshold for establishing cause in law? So in this primer, I'm actually going to focus only on the first, second and fourth. Usually if something gets all the way to court, there's no question that the patient has been hermed in a meaningful way. So that's usually not an issue. So I'm going to focus on the other three elements of negligence, but you have to have all four in order to be liable for negligence. I'm going to try and walk you through these elements by telling you stories from real Canadian cases and that'll sort of flesh out what these concepts or elements mean in more detail, right? As I just said, I'm not going to talk about damage, just the other three elements of negligence. So let's start with a duty of care, and this is based on a really old case from England, sort of beginning of the 20th century, and it was a case involving a woman named Mrs. Donahue, who bought a bottle of ginger beer from a corner store in Scotland, and as she finished her drink, she noticed that there was a decomposed snail at the bottom of it. And so she promptly sued the manufacturer of that drink, a company called Stevenson, Foreign Agligence. So do you think she won? Did Ms. Donahue win her case? It might not be surprising to you now, but at the time when the court, the House of Lords in Britain, said yes, she's entitled to compensation. It was revolutionary. The idea that she would owe, the manufacturer owed her a duty of care, even though she didn't have a direct relationship with them, right? She bought the bottle of beer from a corner store. That was considered pretty revolutionary. And the House of Lords set out this general principle of if these two conditions are met, then a duty of care is owed. The two conditions are that there's a reasonable foreseeability of harm between someone's acts and omissions and and the injury or the harm in question, and also that there's a degree of proximity between those two things, right? We don't want there to be just because there isn't a direct relationship. We don't want the plaintiff or the person who suffers harm not to be able to be compensated for that. But there can't be, you know, a huge amount of time that's gone by necessarily, or, you know, think of 20 actors in a sort of production chain. There might be too much space or different actors in between them for liability to follow. So those two criteria were established in this old case, and that really set up this idea of a duty of care to one's neighbor, even if you may not directly cause the act that leads to harm. If you're involved enough, you have a duty of care. This is seldom an issue in the context of lawsuits against physicians, right? They have a clear duty of care to patients that are under their care. But there are sometimes cases that ask, you know, how far does that go? What about non-patients? Well, the cases go both ways. Think about a patient who has some kind of infection. They're part of a family. The family members are actually under that physician's duty of care, even though they're not his or her patient, right? Because you have to think about the risk of infection. In other cases, physicians don't owe a duty of care. For example, to parents when they're treating a child, when there's an allegation of child abuse, right? Recognizing a duty of care to the parents in that kind of situation would create a clear conflict with other duties, such as the duty of confidentiality that the patient, the physician owes to the minor. So there they're not within the duty of care. But apart from those kinds of situations, it's, as I said, a duty of care that it exists is really not an issue very often in negligence cases, because there's a clear duty to one's patients. The real fight where one of the bigger fights tends to focus on what the standard of care was and whether the physician actually met that standard of care. Okay, so the general principle about what the standard of care is has basically been unchanged since the 1950s in Canadian law. Have a moment to read the general principle from this case. So it's about what a normal prudent practitioner would do, someone with the same experience, similar standing. And if someone has more expertise, if they're a specialist, there might be a higher standard of care that's expected of them. This general principle sort of translates into a few key points, right? So the first key point is that consistency with common practice suggests the standard of care has been met. If you have followed what standard practice, that's a pretty good indication that you've met the standard of care. The standard of care is it evolves over time, right? Practice has changed. So if someone says that you were negligent, they can't interpret what you did in light of the sort of present practice. They have to interpret that in in light of practice at the time where the negligence allegedly occurred. And obviously figuring that out means you have to have evidence and courts pay great attention to what experts physicians, the profession says about what standard of care really is at a given point in time for a given situation, right? So courts don't divide it themselves. They rely on others, the profession primarily, to articulate what the standard of care is at a given time. So think about that point that the profession has a fair bit of control in Mott's Illegals case in which this is playing out over what the standard is. Think about that idea as you read this set of facts for a moment. So standard practice to do as this physician did and if I said that usually means the standard of care has been met in a legal sense, do you think that the physician was liable in this case? And the answer is actually yes, right? Which yields a caveat to that general rule, right? And that that's that it's not quite as simple as just meeting what standard practice to meet the standard of care. In a legal sense, obviously, risky things can constitute violations of the standard of care, although complicated, highly technical procedures are outside of that realm of obvious risk, right? But there's there's a little bit of nuance there. Let's pause as we're talking about the standard of care and think about residents in particular. As I mentioned, that's the second objective for this primer. Unfortunately, this is an area of Canadian law that is pretty unsettled, in my opinion. There are several different standards in play. The first is it's sort of a low standard that equates the resident to a reasonable physician. There's a middle standard that holds the resident accountable to something in between a reasonable physician and a specialist. And then finally, a higher standard that more or less equates residents with specialists. So in this sort of mess of standards, I think there's at least one thing that's clear, that's important for you to take away, even if a court were to take the lower standard. And that is the most common approach based on my assessment of the cases right now. It will not lower the standard of care expected to be given to patient. In fact, I would say that courts have placed emphasis on residents taking active steps to acknowledge the limits of their experience to date. For example, by communicating their relative and experience to patients and for hospitals and supervising physicians and specialists to ensure adequate supervision is in place. So a bit messy to know exactly what the legal standard is, but in that context of uncertainty, it creates sort of added obligations to be clear about one's experience, one's expertise, what kind of supervisions in place in the provision of care in order to ensure that the standard of care is met if a resident is involved. OK, so keep that in the back of your mind when you're thinking about your particular situation if you're a resident. Let's jump back into the main objective of looking at the key elements of negligence. As I said, the issue of damage is usually not an issue. By the time something gets all the way to court. So the bigger issue is the last element of causation. Here's the general principle about what it means for causation to be established. It's the basic idea of but for the physician's conduct. The patient would not have suffered the injury, right? So it's a but for test in legal terms. There's a test that's used in some situations called a material to contribution test. That's sort of an involving area of the law that's beyond the scope of this particular module. The general test is this but for test. So keeping that general principle of but for physician's conduct, harm followed. Think about whether that test has been met in this particular case. Take a moment to read these facts. If you haven't finished, just pause there for a minute to keep reading. I'll continue for the time being. So there's no question in this case that the ophthalmologist met the standard of care. He didn't. The legal issue in this case was did his failure to meet the standard of care cause the injury? So what do you think? According to the Supreme Court of Canada, the answer was yes. And that's probably fairly surprising to you. So there's a couple of points you can take away from that. The first and these points are sort of more or less two ways of stating the same thing. Legal causation and scientific causation are not the same thing, right? In this case, it wasn't because there was more than one cause, right? The natural causes and then the physician's decision to continue the operation. That didn't mean that there was no causation. What the court said was, look, we're concerned about patients who've been harmed and protecting them. And so where the physician does something, in this case, continuing the surgery that actually makes it impossible to sort out scientifically speaking what the cause really was, then we're going to infer causation, right? And that's because we really want to make sure that the law offers a remedy to patients who've been hurt quite seriously. Okay, so that's the sort of wrinkle with causation. It's not quite the same as scientifically. Do we know this with absolute certainty is the cause? Legal causation is less grounded in absolute scientific causation. Okay, with those points, you've basically got a good summary of medical negligence under Canadian law. A lot of those cases went against the physician. So I'm going to try and wind up on a more constructive note. So let's start with a dark note first, which is that if assuming the data from this study done almost 15 years ago now remains relatively accurate, there are an awful lot of adverse events resulting in acute care patient death in Canada, right? In theory, every single one of those adverse events could trigger a lawsuit for negligence, right? But despite the sort of flavor of the cases that I've talked you through and those statistics, the actual number of lawsuits in this country is relatively low. So based on data from the Canadian Medical Protective Association, you see that the number has actually been going down in recent years, and it's still about 13 lawsuits per 1,000 physicians in this country. Indeed, most lawsuits and pulling out some more data from the CMPA that go to court, if you take a second to look through these numbers, fewer and few of them actually continue very far in the litigation process. And many of them, if they actually make it to a point where a judge makes a decision, most of them are in the favor of the physician, not the patient, right? And there are sort of complicated reasons for that. But the reason why I'm putting this data before you is to suggest, look, though it's critical to know a lot about the law and the standards that are in place, but hopefully law and knowledge of it can serve a more constructive role. The odds of you actually being sued, let alone sued successfully for negligence are fairly low. And I think it's important to try and keep this sort of empirical landscape in mind because a lack of understanding about negligence and other areas of law has been associated with defensive medicine practices in the United States. My guess would be we'd find a similar thing if someone does study in Canada, right? Ordering unnecessary tests, referring to other physicians and so on. All of these things carry risks of their own, not to mention lots of costs to the system, to patients. And so a lack of knowledge about law can really unfortunately lead to some of these practices. So I'm hoping that knowledge of negligence, even knowledge of cases where principles came out that didn't go in the physician's favor, can still be really useful and lead you to avoid defensive medicine practices. So that's the more constructive note that I wanted to leave this on. Knowledge of negligence law can hopefully inform your practice and usefully so. I'll just stop by saying that please keep in mind this is not legal advice. I'm happy to take questions. If you write to me, matthew.herter.dall.ca, but it's not legal advice in any kind of formal way. And finally, I should credit the Health Law Institute at Dalhousie University support for enabling me to make this primer. And I hope it's useful to you and your practice. Thank you very much.