Known complications can still be negligent: Bogoroch’s Mahsa Dabirian and Toby Samson

“The framing of the issue was absolutely critical: is bladder injury a known complication of a hysterectomy? Certainly, it is. But that does not mean the manner in which the procedure was conducted was okay,” says Toby Samson, partner at Bogoroch & Associates LLP and one of the lawyers for the plaintiff in Boutcher v. Cha. “The Canadian Medical Protective Association’s (CMPA) entire case was that the injury was a known complication, and thus defensible. While we agreed that a bladder injury is a known complication – we argued that the mechanism of how the injury occurred was negligence.”

Any surgery, even one done by the best surgeon in the world, can have a bad outcome. For instance, with hysterectomies, every woman’s anatomy is different – previous pelvic surgeries can cause varying degrees of adhesions. Even a perfect physician doing everything right could still cause some harm. The question is whether the surgeon upheld the standard of care in taking all the required steps to keep the patient safe.

In an upcoming webinar, Known Complications Can Still be Negligent, Samson is joined by fellow Bogoroch & Associates LLP partner Mahsa Dabirian in addressing the challenges of proving a medical malpractice claim where the poor outcome is considered a known complication of a procedure. According to Dabirian, “the CMPA routinely defends surgical malpractice cases on the premise that the harm was a ‘known complication.’ Therefore, it is imperative for personal injury lawyers to understand how to reframe the issue in litigating these difficult cases.”

“A basic principle of medical malpractice is that a bad outcome does not necessarily equate to evidence of negligence. However, lawyers need to examine precisely how the complication occurred,” Dabirian says. “The outcome might be negligent, or it may be a known complication, but the process of inquiry requires how that injury arose and if the physician met the standard of care or not. These are the intricacies we will be discussing at the webinar.”

In Boutcher the injury was caused by the surgeon placing two sutures through the bladder while sewing up the vaginal cuff at the end of the procedure. While surgeons are allowed to have their own techniques, there are certain steps they must take to ensure they have enough room to not put stitches through the bladder. The burden of proof falls on the plaintiff to rule out the non-negligent ways that the same damage could have occurred. According to Samson, “there are worlds in which anything could happen, and you need your expert to rule out those non-negligent possibilities. If what you’re left with is the negligent way, that’s how you win the case. You need to be able to meet that framework.”

Along with a refresher on breach of the standard of care, the webinar will review what is a known complication and how it complicates a case. Dabirian and Samson will dive further into why a known complication does not necessarily mean there was no negligence. They will discuss how to successfully reframe a claim that may typically be a “known complication” as the result of negligence.

“In Boutcher, we did not argue that the case was about a bladder injury. Rather, we said this was about two stitches going somewhere they were not supposed to be,” Samson says. “Especially for the plaintiffs’ bar, these are tough cases and the key takeaway from the webinar will be twofold: why framing the issue is so important and how these issues should be framed.”

Hear more about navigating the complexities of these medical malpractice cases by securing your spot in the webinar today. 

Founded by Richard M. Bogoroch, Bogoroch & Associates LLP is a Toronto-based law firm that focuses on civil litigation. The firm concentrates on serious personal injury, medical malpractice, wrongful death, product liability and disability claims litigation throughout Ontario. Our firm prides itself on enabling injured victims and their families to obtain access to the justice system.