Doctors not negligent despite delay in performing medical procedure on patient: BC Supreme Court

The BC Supreme Court has absolved physicians from liability, despite their decision to delay performing a medical procedure on a patient.

In Focken v. Fraser Health Authority, 2022 BCSC 2124, Bradley Focken was rushed to the Royal Columbian Hospital (RCH) in New Westminster when he vomited blood at his home on December 19, 2018. He was first seen by Emergency Room attending physician Dr. Brendan Wood who did not note any ongoing bleeding during the examination.

RCH otolaryngologist Dr. Mark Miller also examined Focken and determined that he required an embolization to block a blood vessel in his neck that caused the earlier bleeding. Dr. Miller also consulted with Dr. Andrew Best, who would perform the embolization procedure. Both doctors concluded that the patient needed to have this procedure done urgently, within 24 hours, but that his condition was not emergent such that he required this procedure immediately. They scheduled the procedure for 8 a.m. on the following day, December 20.

At about 3 a.m. on December 20, Focken suffered another significant bleed in his neck with catastrophic impact. He was placed on life support, but he sustained significant brain damage resulting in his death a couple of weeks later.

Focken’s widow, Teisha Focken, complained that the attending physicians and nurses at RCH breached the standard of care they owed to the patient, and their negligence caused his death. She claimed that her husband actively and continuously bled during his stay at the hospital, so the embolization procedure should have been performed immediately, on an emergent basis, instead of being scheduled later. Teisha Focken sued Dr. Miller, Dr. Best, and Dr. Diana Stancu, the hospitalist on duty at RCH at the time of the incident. The complainant also impleaded the Fraser Health Authority as the entity that employs the nurses who attended to Focken.

Standard of Care

In medical negligence cases, the plaintiff must establish that the defendant owed a duty of care, that the duty of care was breached, and the breach resulted in harm. Teisha Focken’s complaint against the RCH doctors and nurses reached the Supreme Court of British Columbia, which ruled that the medical personnel who had seen Focken did not breach the standard of care owed to the patient.

The court said that the standard of care required is that of an ordinary competent physician under the same circumstances. The court further cautioned that in medical negligence cases, the fact that something had gone wrong is not evidence of negligence. The court explained that a physician must be judged based on the standard of an ordinary, average specialist in the same field and must not be held to a standard of perfection.

The court also noted that nurses must exercise the care and skill that is reasonably expected of a prudent and careful nurse in similar circumstances. The court said that the standard required is not perfection or even excellence.

No breach of duty

The court found that the physicians and nurses who examined Focken did not breach the standard of care. Based on the evidence, the court was satisfied that Dr. Best and Dr. Miller exercised reasonable clinical judgment in concluding that the embolization procedure was urgent and had to be completed within 24 hours, but it did not need to be done immediately. At the time they made the decision, Focken was stable and showed no signs of bleeding. The court found that his vital signs were stable from admission to RCH until the catastrophic bleed that led to his death.

“Their clinical judgment in deciding on this course of action should not and cannot be held to a standard of perfection judged with the benefit of hindsight,” the court said in its reasons for judgment.

The court also accepted the defendants’ explanation that the embolization procedure is more likely to be successful and less susceptible to complications when conducted during the day as opposed to after hours when the risk of operator fatigue is higher.

The court similarly found that the nurses who cared for Focken met the standard of care expected of them in their care of the patient. The court was satisfied that they exercised the degree of care and skill reasonably expected of nurses in similar circumstances by regularly checking his vital signs, charting information as required and liaising appropriately with the attending physicians.