Court awarded damages even if the doctor's negligence did not ultimately cause the patient’s death
The Manitoba Court of King’s Bench has awarded damages to the plaintiff in a medical malpractice case, finding that the doctor’s delayed diagnosis caused the patient additional pain and suffering.
In Tripp v. Ross, 2023 MBKB 173, the plaintiff, Becky Tripp, as representative for the estate of Lindsey Tripp, sued Dr. James Ross for medical malpractice. The plaintiff alleged that Dr. Ross’s negligence delayed the diagnosis of colorectal cancer in Lindsey Tripp, leading to his death.
Dr. Ross admitted he was negligent, resulting in a delayed diagnosis of Tripp’s cancer. However, Dr. Ross argued that an earlier disease diagnosis would not have changed the ultimate outcome. Accordingly, he said that his negligence did not cause most of the damages the plaintiff claimed.
The Manitoba Court of King’s Bench ultimately ruled that the late diagnosis did cause Tripp additional pain and suffering for which he should be compensated but that it did not cause his untimely death.
The dispute started on December 18, 2017, when Tripp went to his doctor at Killarney Clinic complaining about rectal bleeding and abdominal cramps. Dr. Ross saw him several days later and he performed a colonoscopy on Tripp in January 2018. Dr. Ross found that some of the polyps he removed during the surgery were aggressive. He advised Tripp to return in one year.
Dr. Ross admitted that he was negligent in how he performed the colonoscopy. It appeared to the court that once Dr. Ross found the polyps, he assumed that he had found the source of Tripp’s bleeding and did not continue the colonoscopy. The court noted that had he continued the colonoscopy, he would have seen the tumour.
Between March and August 2018, Tripp had episodic abdominal pain and rectal bleeding. Tripp eventually underwent surgery in October, resulting in the removal of the tumour, along with 40 percent of his pancreas, spleen, and a large portion of his lower bowel. He passed away in February 2022. Tripp’s son testified that his father had a long, painful recovery from the surgery in October 2018, and the cancer treatments were harsh.
Tripp’s son further said that his father was upset that, in spite of doing everything he could to address the symptoms, Dr. Ross missed his diagnosis. Tripp allegedly experienced symptoms of depression and was anxious about his poor prognosis.
The court noted that the colon cancer was present during the colonoscopy, and had it been performed properly, the cancer would have been detected at that time. The court further said that since the cancer was not detected until eight months later, in October 2018, the tumour had a chance to grow, resulting in more complicated surgery. Dr. Ross argued that the eight-month delay in diagnosis did not affect Tripp’s chance of survival.
The court could not determine for sure what stage the cancer was at during the colonoscopy in January 2018 or whether it had metastasized. Experts agree that one cannot predict the progression of the disease or prognosis with certainty. Their disease progress assessment is mainly based on statistics gathered through studies.
The court was ultimately satisfied that Dr. Ross’s negligence did not cause Tripp’s premature death. However, his delayed diagnosis did cause him pain and suffering that he would not have experienced if Dr. Ross had detected the tumour in January 2018.
Experts found that the delay in diagnosis allowed the tumour to grow, making the surgery more complicated. The court also noted that delay in the surgery likely made recovery more difficult and complications, such as the perforated bowel, and repeated hospital admissions more likely. The court also pointed out that Tripp had to live with the knowledge that his doctor had missed the diagnosis; he had to live with the “what ifs?”
The court noted that Tripp had a long and painful recovery from the surgery, followed by harsh rounds of chemotherapy. He was unable to carry on his usual activities, and he suffered from depression. The court acknowledged that he may have had similar difficulties even if Dr. Ross had detected the cancer in a timely way, but the court was satisfied that the delay in diagnosis exacerbated his suffering. Accordingly, the court awarded the plaintiff non-pecuniary damages of $75,000.
