Legal column: Attacking the standard of care

If a doctor leaves a sponge inside a patient after surgery, and the patient dies as a result, it seems pretty clear the doctor did something wrong. Remarkably, the doctor in this case argued otherwise. He used the defence of “approved practice,” also known as “common practice” or “custom,” whereby he argued that the procedures he followed were generally approved and used, therefore he should not be found negligent. Unsurprisingly, he lost.He had performed surgery to remove a child’s tonsils and adenoids but was told by the anesthetist, after the operation, that not all the sponges had been taken out. He checked, but found no sponges. The child later died by suffocating on one. The doctor told the court he never took the precaution of using sponges with strings on them and he never had a nurse count the sponges, but neither did anyone else at his hospital. It was “approved practice” to not bother with these precautions. Therefore it was acceptable.Ruling against him, the Supreme Court of Canada noted that he could have used sponges with strings, and he could have had a nurse count them—plenty of other doctors in other hospitals did. Therefore, said the court, it does not take an expert to see that he should have done these things. The result of not doing them spoke for itself.This case, called Anderson v. Chasney, was decided in 1949. Since then it has been cited many times in situations where a defendant doctor meets the standard of care, so the plaintiff shifts tactics and attacks the standard of care itself. This is now a well-established strategy. However, it only succeeds in those rare situations where the plaintiff can show that the standard of care is so bad that even the average person off the street would be able to tell. This was a perfect example: Anyone would agree that a standard of care allowing a doctor to shrug off leaving a sponge inside a patient, who later suffocated to death on it, cannot stand.B.C. caseThis approach was attempted recently in a British Columbia case. The plaintiff lost at trial, then appealed on several grounds including that the standard of care should have been attacked and struck down. It began when a 55-year-old patient, who was suffering from cancer of the tongue that had spread to his throat, started vomiting blood and blood clots into the kitchen sink in his home. Firefighters and an ambulance took him to the ER. It was determined that the bleeding had stopped, but the patient would need an embolization to block a blood vessel in his neck. The procedure was scheduled for the next morning. Overnight, however, the bleeding started again, causing a nine-minute hypoxic cardiac arrest. This led to brain injury and eventually death.The plaintiff, his widow, asserted that the embolization should have been done immediately, rather than waiting until the next morning. The trial judge ruled that waiting until the next morning was a perfectly acceptable medical judgment, and it met the standard of care. So the plaintiff switched tactics and argued that this standard of care was too low. The appeal court disagreed, affirming the trial ruling and holding the defendant doctor blameless.The problem the plaintiff faced was that it is very, very hard to attack a standard of care. As a general rule, where a procedure involves difficult or uncertain questions of medical treatment or complex, scientific or highly technical matters that are beyond the ordinary experience and understanding of the average person, the standard of care will not be found wanting. The only way to accomplish that is when the standard is so “fraught with obvious risks” that anyone would easily be able to see the deficiency.That was definitely not the case here. Not only were there no “obvious risks” in the standard of care, there was nothing obvious or straightforward about any of it. On the contrary, it was complex, to say the least. For example, the court adopted expert testimony and ruled that, “It was reasonable to schedule the embolization procedure for the following morning, because the patient had a CT angiogram around 6:30 p.m. and it showed a pseudoaneurysm in the right lingual artery and there had been no bleeding since his admission to the hospital emergency room. When the scheduling decision was made, re-bleeding did not appear to be imminent. The patient remained under close observation while awaiting the embolization procedure, and those attending to him knew to look for further bleeding.” Imagine telling this to the average person on the street. Would they chuckle and say, “Wow, that approach is so obviously risky, I can’t believe anyone would do it!” No.The court also found that, “It was the lingual artery that was bleeding, not the carotid artery. The lingual artery is smaller than the carotid artery, and bleeding from the former is generally less severe than bleeding from the latter. Bleeding from the lingual artery is not sentinel bleeding, which is very ominous and calls for immediate action, because the bleeding was from the tip of the artery rather than from a small tear in the artery wall that may be followed by a larger tear. The patient survived the earlier bleed from the lingual artery at home without medical treatment, so subsequent re-bleeding was not necessarily expected to be catastrophic.” Again, imagine saying these words to the average person on the street. Would they burst out laughing and scoff at the blatant recklessness of this standard of care? Would they say it is fraught with obvious risks? No. The average person would not be able to make head or tail of it. Sentinel bleeds, pseudoaneurysms, carotid arteries—this is esoteric stuff. Not like leaving a sponge in someone.‘Obvious risks’The “fraught with obvious risks” test comes from a Supreme Court of Canada case called ter Neuzen v. Korn, which was a lawsuit against a gynecologist brought by a patient who contracted HIV after being artificially inseminated with infected sperm back in January 1985. A jury had previously come to the verdict that, clearly, the standard of care proposed by the gynecologist was pitifully low—he never warned the patient of the risk of HIV infection, and he didn’t test the semen for HIV. Anyone could see this was obviously risky.Not so fast, said the Supreme Court. The procedure was done January 1985, but the first documented case in the world of HIV transmission through artificial insemination was published in the lay media in July 1985, and in a medical journal in September 1985. None of the obstetric literature mentioned artificial insemination as a mode of transmission of HIV, and no article summarized the disease risks of artificial insemination before 1986. Moreover, as of January 1985 there was no test available for the detection of HIV in semen or blood in Canada. Therefore, it made no sense to say the gynecologist’s method was “fraught with obvious risks” in that he failed to warn about HIV or test for it. On the contrary, the gynecologist’s practice was found to be in keeping with general practices across Canada, and reflected the current state of knowledge. The jury’s verdict was set aside.This accords with common sense. It is very difficult to successfully attack a standard of care, and that is a good thing. Otherwise we would have judges, who typically do not understand the practice of medicine and therefore always require expert witnesses to educate them in malpractice cases, monkeying around with how doctors do their jobs.But in those rare cases where the standard is fraught with obvious risks, it is no excuse for a practitioner to claim he or she was merely conforming to common practice. As the judge ruled in Anderson v. Chasney back in 1949, “Ordinary common sense dictates that when simple methods to avoid danger have been devised, are known, and are available, failing to use these methods, with fatal results, cannot be justified by saying that others also have been following the same old, less-careful practice.” A widely used tort law textbook puts it succinctly: “It is obviously not acceptable to injure a patient’s body outside the area of treatment, or cause an explosion set off by an admixture of ether vapour and oxygen, or fail to remove a sponge.”Bill Rogers is a Toronto lawyer and writer covering medical and pharmaceutical issues.

Legal column: Attacking the standard of care

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