Case selection difficult ‘particularly with respect to role of causation in establishing liability’

This article was produced in partnership with Bogoroch & Associates.

Deciding whether to take on a medical malpractice case can be a conundrum - and a great deal of work - even for experienced lawyers.

“There’s a difference between a lawyer wanting to take a case and determining whether a client has a case,” says Toby Samson, a medical malpractice partner at Bogoroch & Associates LLP, a Toronto-based civil litigation boutique whose focus includes medical malpractice and personal injury cases.

At the outset, an injury has to be serious enough to merit the cost of prosecuting what are routinely highly complex actions against the well-funded health care establishment and its top-tier counsel roster. But determining the seriousness of the injury can be easier said than done.

“A nerve injury, for example, may show improvement in the first six months, but that’s not always a reliable indicator of the injury’s severity because it can take up to two years to determine whether it’s permanent or not,” Samson says.

There is, of course, no requirement that an injury be permanent to be actionable or warrant significant damages in medical malpractice cases, but the economics of litigating are always a looming consideration.

“Unless you have something really, really awful, short-term damages frequently aren’t worth pursuing,” Samson says.

Even if the injury’s severity is not in doubt, that’s hardly the end of the matter in determining whether to take the case.

“There’s a lot more to think about, particularly with respect to the role of causation in establishing liability,” Samson says.

It’s important, for example, to bear in mind that many complaints leading to malpractice allegations emerge from poor or rude communications, or a client’s belief that things should have happened faster.

“Unless those things actually led to some harm that would not have otherwise occurred, they’re not the basis for a lawsuit,” Samson says. “And what complicates it is that the more acute the situation, the more people’s expectations of doctors can ratchet up unreasonably – because the standard of care is not perfection.”

When the injury occurred or was discovered is, of course, critical in determining whether limitation periods have been met. But timing is important for other reasons as well.

“For example, was it a situation where things should have been diagnosed earlier or is the injury a result of longer-term mismanagement?” Samson asks. “The answer to that question will have considerable impact on the scope of the investigation the lawyer must conduct.”

The difficulty with medical malpractice investigations is that many potential plaintiffs, especially surgical cases, don’t really know what happened.

“So you may have to get the records, but not necessarily all of the records at this early stage,” Samson says. “If it’s a case where something went wrong in the operating room, the operative summary, the post-op material and a discharge summary are crucial.”

Fortunately, obtaining information has become easier over time with the advent of electronic record and a growing ability to access them expeditiously.

“You can also do online research to get a sense of the injury’s gravity, consequences or permanence, some indication of the treatment options that were available, and whether or not the complications were a predictable result of the surgery,” Samson says.

Even if the records and preliminary research indicate that something went wrong, however, that’s not enough to establish liability.

“The plaintiff must show that if things had been done earlier or differently, the result would have been otherwise,” Samson says. “That’s easier in cases involving acute physical situations, like severe bowel obstructions, but it may be more difficult in cases involving follow-up situations on something like a fracture.”

And in situations involving strokes, for example, plaintiffs are often looking at some deficits even had things gone right.

Lawyers considering whether to take a case, then, should see if they can clearly identify the connection between the allegedly negligent individual and the professional who could fix the problem.

“If the person who made the mistake is the radiologist or the family doctor, the question that must be asked is how fast the patient would have ended up in the hands of a general surgeon had that mistake not been made,” Samson says.

Ultimately, then, uncovering a breach of a standard of care isn’t enough.

“You also have to ask what would have happened had the standard of care been met,” Samson says. “When it comes to causation, everything has to align.”

As the investigation progresses, a key consideration influencing the economic viability of a case is the number of potential defendants.

“The fewer defendants there are, the more cost effective it will be for the plaintiff,” Samson says. “And if there is more than one defendant, it’s important to consider how many specialities are involved, because the standards of care can differ for each one.”

Chronic mismanagement cases, like those alleging opioid overprescription, can be very difficult.

“You might even have to go to each of the pharmacies involved over a long period of time,” Samson says.

One of the difficult decisions counsel has to make is the conflict between wanting to help aggrieved persons and the practical realities of the value of their case and the cost of litigation.