Legal column: A rare tragedy

Even if doctors fall below the standard of care, they will not be liable for damages if the negligence did not cause harm to the patient. This is well-settled law. Typically, a judge will say something to the effect of, “Yes, Dr. X was negligent, but the harm would have happened anyway.” The principle becomes especially vivid when, as in a recent Ontario case, a shattering event supervenes something rare, tragic and beyond anyone’s control.The trouble started as the patient was giving birth by C-section. The baby was fine, but out of nowhere the patient suffered an amniotic fluid embolism (AFE), resulting in what one expert described as “bleeding uncontrollably from all places in the body.” Cardiac arrest ensued, causing permanent brain injury. She never regained consciousness, and she remains in a “vegetative state” in hospital, with no expectation of improvement.“I find that the patient’s cardiac arrest was due to an AFE,” the judge ruled. “All the experts agreed this is exceedingly rare, cannot be predicted and cannot be prevented. There is no test to diagnose AFE nor is there any medication to treat it. There are no reliable risk factors for AFE and it is not preventable.”The patient’s lawyers had argued that it was not AFE, but rather a uterine artery bleed that was not recognized in time by the doctors, and led to massive blood loss and then cardiac arrest. They said the patient should have been given a blood transfusion.The judge preferred the defence lawyers’ explanation: This was a classic case of AFE, which involves fetal tissue entering the mother’s bloodstream through a tear in the birth canal. In the vast majority of births, this does not create a problem. However, in a very small percentage of cases, this transfer is not innocuous, and leads to an “overwhelming rejection response” in the mother. Cytokine particles—the immune system’s bullets—attack the heart, the lungs and the blood loses its ability to clot. One defence expert likened it to being stung by a bee. Generally, a bee sting is a minor irritant. However, in very rare cases, a person can have a massive reaction.The judge rejected the idea that the uterine artery bleed was not recognized in time by the doctors. On the contrary, it was shown, it was sutured and the bleeding was stopped. If the bleeding hadn’t been stopped, said the judge, someone would have noticed. “Bleeding cannot be ‘hidden’ from the view of the surgeons, who were checking for it.”Moreover, there was no reason to believe that the patient had lost so much blood that a transfusion was necessary. The judge accepted evidence that the patient had lost approximately 1,000 to 1,600 ccs, which is above average for a C-section, but not beyond the pale. Speculation by the patient’s experts that perhaps the blood loss estimates were all inaccurate was dismissed. “I do not accept that the assessments of the blood loss done by the various treating doctors at the time of the surgery in the range of 1,000 to 1,600 millilitres could all be very wrong.” Indeed, after the patient’s cardiac arrest and subsequent resuscitation, her abdomen filled with blood, which was, “pouring in from everywhere.” This was not “surgical bleeding.” It was bleeding caused by AFE, which had ruined the blood’s clotting ability.Moreover, a blood transfusion was not warranted because the patient had a hemoglobin reading of 99 and blood loss of between 1,000 and 1,500 ccs. With these readings, said one defence expert, no doctor would even think of doing a blood transfusion. “A blood transfusion is not given because it might be a good idea,” said the expert. “It is not a benign procedure. It affects a person’s immune system for life.”Although there was nothing anyone could have done to save the patient, the judge followed normal procedure and looked for breaches of the standard of care. Three were found, none of which caused any harm:One defendant doctor failed to inform the surgical team of the deterioration in the patient’s blood pressure, her instability and the fact that she was in shock.He also left the OR while the patient was unstable and in shock and he did not know the reason for it. He left the patient’s care to a second-year resident who had very little experience with C-sections in Canada, and with whom he had not previously worked.Another defendant doctor neglected to fill out the anesthesiology record.The law of causation requires a link between the defendant’s negligence and the injuries suffered by the patient. Indeed, it must be proven that “but for” the negligence, the injuries would not have occurred. The patient’s lawyers failed to do so.This long-standing legal principle has many examples in the annals of malpractice law, such as the 1968 English case Barnett v. Chelsea & Kensington Hospital Management Committee, where a man showed up at an emergency room complaining of stomach pains. He was sent home without being seen by the doctor. The man died shortly afterwards of arsenic poisoning. The doctor was ruled to have been negligent for not conducting an examination, but there was no liability, because this negligence did not cause any harm—the evidence showed that even if an examination had been done, the poisoning was so advanced that it was too late to save the man’s life.Another example is the 1995 Ontario case Wilton v. Genik, where a man went to emergency complaining of chest pains. The doctor told him it was heartburn and prescribed medication for it. Two days later the man died of a heart attack. The judge ruled the doctor negligent for making the wrong diagnosis, but did not impose liability because the man’s heart condition had already reached a point where he only had a few days left to live.For similar reasons, the patient’s lawyers in this case failed to prove that “but for” the negligence the patient would have been OK. True, one defendant doctor breached the standard of care by failing to notify the surgeons of the patient’s blood pressure instability, but this had “no impact on the outcome.” The surgeons said they would have expected and preferred to have been advised of this, but it would not have affected their treatment decisions nor changed their actions. Also, the fact that the doctor left the OR while the patient was unstable and in shock played no role in the outcome. As for the failure of the other defendant doctor to properly fill out the anesthesiology chart, that was essentially a paperwork issue that had no effect whatsoever on the patient. As the judge concluded, “The experts all concurred that when a patient suffers an AFE, there is little if anything that can be done to avoid its ravages.”Another interesting aspect of this case involves Ontario’s statute of limitations, known as the Limitations Act, 2002, which cut the old six-year general deadline, in force since the era of Shakespeare, down to two years. (This was largely motivated by the insurance industry to reduce claims exposure, and to reduce document storage costs and “paper burden.”) The problem in this case was that two of the defendant doctors were not sued until more than two years had gone by.However, pretty much every statute of limitations has a safeguard built in: The clock does not start ticking until the wrongful act has been discovered or ought to have been discovered through reasonable diligence.This principle saved the patient’s lawyer from being time-barred. The lawyer originally hired an expert to do a report, and this expert said the patient’s heart attack was not caused by blood loss, but rather by AFE. Later, the lawyer hired another expert who said the opposite. (Obviously, the first expert was right, but the lawyer would not be expected to know that—it required a trial.) So the judge ruled that the clock did not start ticking until the day the lawyer got the second opinion.“What happened that day can only be described as a tragedy,” said the judge, “one that has forever changed the lives of the family, as well as the life of the child, and the spouse.” And it was nobody’s fault.Bill Rogers is a Toronto lawyer and writer covering medical and pharmaceutical issues.

Legal column: A rare tragedy

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