Timing is everything

If a doctor’s negligence does not cause any harm, then there is no liability for malpractice. This is well-settled law. Often it involves the question of timing. Much can depend on exactly when the doctor was negligent. A recent Alberta case vividly illustrates this principle.The tragic story began when an 11-month-old baby was brought by her mother to the emergency room with breathing distress. The baby was diagnosed with respiratory syncytial virus (RSV) and admitted to hospital. Within a few days she contracted a bacterial lung infection, which led to septic shock before the infection was identified and treated. It had catastrophic consequences, restricting blood flow to the baby’s extremities, and she ended up having all four limbs amputated.The central question was this: If her bacterial infection had been diagnosed sooner, would the amputations have been necessary? The answer, ruled the judge, was no, the amputations would not have been necessary. Therefore the crux of the case was who should shoulder the blame for the delay in diagnosis. Three doctors were scrutinized, and may have breached the standard of care. However, because of timing, only one was held liable.Doctor #1The first doctor failed to properly chart bacterial infection as part of a differential diagnosis. On this point the judge discussed the established medical law: When it comes to differential diagnosis, doctors must rule out potential ailments in order of severity, not probability. This idea is universally accepted, the judge said, noting that it has come to be known as the “worst first principle.” Doctor #1 had been trained outside Canada, and unfortunately he had been taught the opposite: Investigate the most common or most likely diagnoses first. The judge took a dim view of this. “Failing to consider the ‘worst first’ principle and then failing to carry out appropriate tests to confirm or eliminate the worst of the potential diagnoses is not a mere error of judgment but, rather, a breach in the standard of care.”However, even if the failure to make a note querying bacterial infection on the chart was a breach of the standard of care, Doctor #1 was held blameless because other doctors considered the possibility of bacterial infection independently, and they did so before the timeline of the baby’s illness showed that it was too late to prevent the amputations. “Thus,” ruled the judge, “no causation between Doctor #1’s omission and the ultimate outcome can be made out.”Doctor #2The second doctor should have sounded the alarm about a possible bacterial infection, but he failed to do so. In a chart note he mentioned “some worsening” in the baby’s condition, raised the possibility of a secondary infection in the lung and suggested oral amoxicillin. He observed that Ventolin was not helping the respiratory distress, which was a change from previous days. “He should have directly communicated his renewed concerns that the baby now likely had a bacterial infection to the other doctors and ordered IV (not oral) antibiotics before he finished his shift,” the judge ruled.However, even though he breached the standard of care by not sounding the alarm, he was not liable, because his negligence caused no injury—it was already too late. The test for causation, noted the judge, is the “but for” test. That is, can it be said that “but for” the negligence, the injury would not have occurred? No, the judge ruled. “At the time of the negligent act, no steps would have, on balance of probabilities, saved the baby from sepsis and the resulting amputations. The expert evidence is uncontroverted that the bacterial infection was well-established by this time.”Doctor #3The third doctor was in a different position, because when he committed his negligent act there was still time to save the baby’s limbs. His negligent act was failing to notice the signs of bacterial infection and therefore failing to administer IV antibiotics. The judge pieced together what happened: The first notable event that occurred was that this doctor ordered a complete blood count and differential, whereby an elevated amount of white cells would be indicative of a bacterial infection. The doctor explained at trial that he ordered this test not because he thought the baby’s condition was getting worse—rather, he believed it was not improving at the rate that he expected. The judge rejected this assertion and ruled that, based on the information available at the time, including nursing notes that said the baby was experiencing higher fevers and more fussiness, this doctor “should not have determined that the baby was not, in fact, worse.”Also, this doctor failed to notice something that a nurse had noticed and charted: mottling on the baby’s skin. (A mottled or marbled appearance of the skin is typically caused by reduced blood flow to the skin’s surface.) “It was a new symptom,” said the judge, “which should have been considered in the ‘is she not getting better?’ thought process this doctor said he was engaged in. It is a symptom of the effects of the bacterial infection and a significant sign of what was beginning to happen to the baby’s limbs.”True, the judge explained, it is quite rare for a bacterial infection to follow as a complication of RSV bronchiolitis. Indeed, one of the witnesses at trial testified that in his 40 years of practice, he recalled only seeing one or two patients with RSV bronchiolitis develop a secondary bacterial infection. Nevertheless, said the judge, it is a known complication and a foreseeable one.“While it is an uncommon complication to RSV bronchiolitis,” said the judge, “it is a well-documented and known one. Evidence was heard that RSV is extremely common, and it was a common illness during the winter of 2011, when this incident occurred. As such, when a very common illness has a well-known serious complication such as bacterial bronchopneumonia, a secondary infection, it is foreseeable. It is foreseeable to a family physician with years of experience working with children who are prone to RSV, no matter what the setting of the practice is. The possibility of the bacterial infection cannot be said to have been ‘far-fetched.’”The bottom line, the judge ruled, was that Doctor #3 had the opportunity to appreciate the baby’s worsening condition and the serious possibility of a bacterial infection, while there was still time to save her limbs. He should have ordered IV antibiotics. “His failure to do so caused the baby to progress to septic shock and, eventually, to her amputations. But for that failure, the baby’s injuries would not have occurred.” The judge added that it is not necessary to establish that this was the sole cause of the injury. “There will frequently be a myriad of other background events which were necessary preconditions to the injury occurring,” the judge explained. “The important thing is that the injury would not have occurred without the defendant’s negligence.”At one point during the trial, the defence argued that a lower standard of care ought to be imposed because the incident occurred in a small town. They cited a 1982 Alberta court decision that said that, “What is a competent degree of skill will depend on the circumstances in which the practitioner finds himself if he practices in a remote village, away from modern sources of inspiration and knowledge, very much less will be expected of him than of the practitioner in a large town attached to a hospital with every possible convenience and inducement for keeping his knowledge up to date.”Rejecting this argument, the judge ruled that, “In this case, there is nothing to suggest that the location of the defendants at the time they treated the baby affected their learning, skill, resources, or ‘inspiration’ in any way that relates to their standard of care. Furthermore, many of the cases relied on by the defendants were significantly dated. The application of this principle must be considered in terms of 21st century access to information and consultation, which is significantly more available than in previous generations. The concept of a ‘remote village’ doctor does not apply as it did back in 1982.”It might seem strange that a doctor can fail to follow the “worst first principle” of differential diagnosis, or fail to sound the alarm about a serious infection possibility, and nevertheless be held blameless. But it depends where you are on the timeline. This case is a perfect example. Timing is everything.Bill Rogers is a Toronto lawyer and writer covering medical and pharmaceutical issues.

Timing is everything

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