Delayed diagnosis cases among most challenging for plaintiff lawyers

This article was produced in partnership with Bogoroch & Associates LLP

Mallory Hendry of Canadian Lawyer sat down with Ryan Marinacci, associate at Bogoroch & Associates, to discuss why delayed diagnosis cases are uniquely challenging.

What often comes to mind when thinking of medical malpractice is a botched surgery: a doctor operating on the wrong limb, as an extreme example, or a surgical instrument or sponge left inside the body cavity following surgery. But delayed diagnoses can be more nuanced because the conduct giving rise to the claim is not as obvious, says Ryan Marinacci, associate at Bogoroch & Associates LLP.

“In a typical medical malpractice case, causation is determined based on the following question: Did the substandard medical care cause the bad outcome? But in a delayed diagnosis case the medical care provider generally did not cause the underlying condition or injury that ultimately led to the bad outcome.  It is often the bad outcome itself that raises the red flag rather than the medical care provided at the time.”

Marinacci has been interested in delayed diagnosis cases for some time and follows a line of decisions in medical malpractice caselaw that outline further model questions to establish causation for a delayed diagnosis. Did a delay in treatment or diagnosis cause the outcome, and did a breach of the standard by the defendant cause or contribute to that delay? There needs to be delay as a cause of the ultimate outcome, and then there needs to be a link between substandard care by the medical provider and the delay – and the answers to both questions need to be in the affirmative if the plaintiff is going to succeed.

If the answers are both yes, and a breach of the standard contributed to or caused the delay that led to the outcome, the plaintiff must also prove how the medical care provider breached or fell below the standard.

“These questions pose additional hurdles that need to be overcome and additional opportunities for an answer in the negative which means the plaintiff has not succeeded,” Marinacci says.

Examples of delayed diagnoses include individuals who were regularly followed by their family doctors but are suddenly diagnosed with terminal cancer by a specialist; an arm or leg laceration that an ER doctor determined to be minor but was eventually found to be a tendon injury resulting in permanent loss of function; or a person whose stroke symptoms were missed upon their initial presentation at the hospital. In these cases, “it’s the firm’s investigation that determines whether there was a potential condition that was not diagnosed in a timely way that resulted in a worse outcome for the patient,” Marinacci notes.

Though always case specific, in general delayed diagnosis cases can be among the most challenging for plaintiffs. The first difficulty involves the standard of care. As with all medical malpractice cases, expert opinions are required but with delayed diagnoses the experts cannot use an outcomes-based analysis. Experts retained by plaintiffs must place themselves in the shoes of the doctor at the time the patient presented, not knowing what the ultimate outcome was. Like the ER doctor who assessed the person’s hand and didn’t know there was a tendon injury that would cause permanent damage, or the family physician who didn’t know there would be an eventual diagnosis of terminal cancer, experts are required to look only at the evidence available to the medical professionals at the time to assess their conduct. It’s important that plaintiff lawyers ensure that experts understand the specifics of their role and not frame their analysis based on the patient’s outcome, Marinacci says.

Even if the experts find a breach of the standard, that’s not the end of the road: there’s the equally if not more challenging issue of causation that needs to be established. In other types of medical malpractice cases, causation can be relatively straightforward in that if you can show there was a breach of the standard during the procedure causation sometimes follows, like the case with the wrong limb: had the surgery been performed on the appropriate limb, the person wouldn’t have lost the other limb.

But delayed diagnosis cases aren’t as clear cut because plaintiffs need to prove there would have been a better outcome had the diagnosis been made in a more timely manner based on the evidence. It’s very difficult – sometimes impossible – to prove that more likely than not there would have been a better outcome but if they can’t do that, they haven’t established their burden of making out their claim of medical negligence against the doctor. “Loss of chance” isn’t compensable under Canadian law so the plaintiff needs to prove it’s more likely than not there would have been a better outcome – not more likely than not they would have had a chance at a better outcome, but that there would have been a better outcome.

When juries are asked to consider these cases, it poses additional difficulties on the question of causation because they don’t have legal or medical training, Marinacci notes, adding causation has become a complex concept to explain. The question of causation must be set out in terms that are understandable to the jury but also fair to both sides – “another wrinkle in these types of cases and that’s where the caselaw on the appropriate questions that have to be put to the jury on delayed diagnoses cases comes in,” he says.

“It’s the reality of these types of cases – we have to have a very strong causation opinion in order to have a chance at success,” says Marinacci. “But the key to all medical malpractice  litigation is to approach each case with a rigorous view of the evidence, and that’s what Bogoroch & Associates LLP  endeavours to do in each and every case.”

Ryan Marinacci joined Bogoroch & Associates LLP following his call to the Ontario Bar in June 2021, after completing his articles with another prominent boutique personal injury firm. His practice focuses on personal injury and medical malpractice litigation.