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Nova Scotia Medical Malpractice Case Goes to Trial

Victor Lewin - Tuesday, January 31, 2012

The lawyers at Wagners represented a client in a medical malpractice trial in Sydney, Nova Scotia this month. The claim alleged negligence on the part of medical residents who treated the plaintiff. The residents were newly out of medical school. The medical malpractice lawyers at Wagners alleged that they did not appreciate their own inexperience and limitations before treating the plaintiff. As a result, it is alleged that the plaintiff sustained a tragic injury. She continues to live in Nova Scotia but is severely disabled.

The leading decision on the standard of care expected of medical residents is Fraser v. Vancouver General Hospital, [1952] 2 S.C.R. 36. Following a car accident, the patient in that case had neck x-rays taken and interpreted by two residents. Without consultation with more experienced doctors, they decided that there was nothing of concern. The patient was accordingly discharged. He continued to suffer from neck pain and a couple days later died with what was later diagnosed as a dislocated neck fracture. The Supreme Court of Canada found that the residents had failed to meet the requisite standard of care by not calling the radiologist who was available. The Court stated:

[A resident] must use the undertaken degree of skill, and that cannot be less than the ordinary skill of a junior doctor in appreciation of the indications and symptoms of injury before him, as well as an appreciation of his own limitations and of the necessity for caution in anything he does.

The patient in Adair Estate v. Hamilton Health Sciences Corp., complained of vomiting and abdominal pains and was sent to the McMaster University Medical Centre for assessments. On two occasions in the same day she was attended to by a third year resident, defendant Dr. McDonagh. On the first assessment, Dr. McDonagh diagnosed her with constipation and sent her home. She returned later than evening. On the second occasion, Dr. McDonagh diagnosed postoperative ileus (not life threatening). However, she was admitted to hospital for observation given the possibility that she had a small bowel obstruction.

The patient remained in hospital overnight under the care of a second resident, the defendant Dr. Hopkins. Unfortunately, the plan to deal with the contingency of a small bowel movement was not followed. The next morning she was diagnosed with the condition and had emergency surgery. She died from complications that followed her post-surgery recovery. The Court found as fact that the malnutrition caused by a delayed and sub-standard bowel obstruction diagnosis was a major factor that materially contributed to the chain of causation that ended with the patient's death. The two residents, along with two specialists, were found negligent and liable.

In assessing the standard of care applicable to residents, the Court stated at para. 137:

Like any student of any profession or trade, a resident must not fail to understand his or her own inexperience, lack of knowledge and lack of skill. For a student to ignore the certainty of these shortcomings and instead act in complex matters without the supervision of a principal is negligence of the highest order.

Regarding the liability of the third-year resident Dr. McDonagh, the Court stated:

He was a junior doctor who was upgrading his qualifications. As such, he should be held to the general standard of care of a reasonable and prudent doctor. This includes guarding against his lack of knowledge, skill and experience in the context of the residency. He was under a duty to seek the advice of his principals if he encountered a problem that was above his present stage of learning. ... It was below the standard of care expected of a prudent doctor who is learning as a resident to rely on his own incomplete and incorrect knowledge, to ignore these red flags and to disregard the opinions and observations of a much more senior and experienced physician.

The Court in Bearden v. Lee, assessed the liability of a first-year resident. The plaintiff in that case went to hospital emergency room with abdominal pains. He was assessed by a first-year resident, Dr. Abramson, who diagnosed gastro-enteritis and discharged him. The plaintiff's appendix ruptured three days later and he underwent an emergency appendectomy. Shortly after surgery, he developed the first of many hernias in incision requiring several additional surgeries. The Court found the resident to be liable, in part because:

...While confidence is a positive attribute of an experienced doctor, [and while I have every reason to believe Abramson is now a fine and experienced specialist,] I am of the view that on July 1-2, 1991 she inappropriately allowed herself to go unsupervised and confidently presented herself to Bearden as being more experienced and knowledgeable than she really was...

It is clear from these authorities that medical residents, while being held to the same standard as full physicians, must take caution of their own inexperience.

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