How to prove negligence in surgical cases

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Proving a surgical complication arose as a result of negligence is among the steepest of uphill climbs a plaintiff can face. Commonly accepted sources of evidence give physicians a significant advantage and the potentially risky nature of all surgical procedures makes determining whether a complication arose from negligence or simply acceptable misadventure challenging.

Nevertheless, some litigators take this work on. Toby Samson, a medical malpractice lawyer has, with her colleagues at Bogoroch & Associates LLP, achieved successful outcomes. Much of that success, she says, is built on a diligent and strategic approach to case identification, Examinations for Discovery preparation, and expert retention. Expert evidence is crucial to medical malpractice litigation, especially these highly technical surgical cases.

Physicians are not held to a standard of perfection, but a standard of what can be reasonably expected of a normal, prudent physician in similar circumstances, Samson says, “in surgery there’s always the potential for damage even if the surgery is done perfectly. There could be complications that nobody predicted. In many complications cases the defence will say ‘this wasn’t negligent, it’s a known complication’…Unfortunately, this ‘known complication’ defence has been extremely successful.”

Samson cites the example of a carpal tunnel surgery, which carries the risk of nerve damage. However, if the surgeon cut a nerve in two, that is likely a stronger case for negligence, than if they had inadvertently compressed the nerve a bit.

In the face of these hurdles, determining if such a complication arose from negligence comes down to securing an expert witness who can speak with authority to this particular procedure.

Samson says it is critical for medical malpractice lawyers to retain a highly credentialed expert, usually from an academic institution. She says that defence lawyers, because they work on behalf of the Canadian Medical Protective Association (CMPA), tend to have access to a larger roster of expert physicians than plaintiffs do. She says that a medical malpractice lawyer’s network of experts needs to be varied and strong enough to match any case. A case arising from a particularly complex knee ligament repair surgery requires an expert who practices sports medicine and performs many of these procedures a year. A case arising from an emergency room issue in a rural hospital should not hinge on the testimony of a downtown Toronto emergency doctor, used to the wide availability of tertiary care and support options. As well, she says, you should not use a ‘hired gun,’ an expert who seems to only testify for one side. The best experts, Samson says, have a track record of independent-minded testimony on behalf of defendants and plaintiffs.

One such expert made the difference in one of Bogoroch & Associates LLP’s recent cases. The patient required an emergency appendectomy and the surgery was performed by the resident physician rather than the surgeon, resulting in injury to the patient’s vena cava. The case went through to Pre-Trial but the plaintiff’s expert provided extremely articulate written reports that strengthened her case and ultimately resulted in an agreeable settlement. Medical Malpractice litigation is so often a contest between qualified experts. Selecting the right expert is often the difference between a successful or unsuccessful outcome. This expert, Samson says, was a physician with an academic appointment, which she says points to particular strength in written reports as well as increased authority on complex cases and cases arising out of physician training, like this one.

“You want really well qualified experts,” Samson says “You want them to be articulate, and you want them to rely on objective factors that are not matters of opinion to support why they suggest this was a breach of the standard of care.”