June 17, 2020

Andrew Brine

A recent decision by the Ontario Court of Appeal may be a game-changer in medical malpractice claims – and not to the benefit of plaintiffs.

In medical malpractice cases, one of the most hotly contested elements the plaintiff needs to prove is often whether the doctor’s or nurse’s care fell below the applicable standard of care.[i] In such cases, the plaintiff must prove that the defendant failed to act in accordance with what would be expected of a reasonably prudent, similarly qualified medical professional in the same circumstances.

In Armstrong v. Royal Victoria Hospital, 2019 ONCA 963 (CanLII), the Ontario Court of Appeal may have made this task much more difficult. In that case, the plaintiff was injured when the defendant surgeon damaged her left ureter (a tube the carries urine from a kidney to the bladder) while performing a colectomy (removal of her colon). Initially, the surgery appeared to go uneventfully. However, approximately 10 weeks after the surgery, it was found that her left ureter was completely blocked. The blockage was about 8-10 centimeters in length (approximately one third the length of the entire ureter). The blockage ultimately damaged her left kidney, which had to be surgically removed.

The plaintiff alleged the defendant surgeon caused the blockage by improperly using a cauterizing device called a LigaSure. This instrument causes an electric current to pass through and divide tissues to enable the surgeon to separate and remove anatomical structures. The current emanating from the LigaSure can spread about two millimeters and is, therefore, an instrument that raises the risk of collateral injury to surrounding tissues and structures. The plaintiff alleged the surgeon was negligent by touching or bringing the LigaSure too close to the ureter, thereby causing heat damage and injury.

Both sides agreed about all of the steps involved in conducting a colectomy. The experts all agreed that the left ureter is one of the anatomical structures put at risk and that a reasonably prudent surgeon would take steps to avoid injuring the ureter by identifying and protecting it. Even the expert called on the defendant’s behalf testified he “would try and stay away from the ureter” during the procedure. However, while the plaintiff’s expert said if a surgeon took the proper steps to identify and protect the ureter during surgery, an injury to the ureter simply would not occur in a patient with normal anatomy. In contrast, the defendant argued that simply trying to stay away from the ureter is enough to comply with the standard of care.

The plaintiff was successful at trial. Having found that the standard of care required the surgeon to identify, protect, and avoid direct contact with or close proximity to the ureter with the LigaSure, the trial judge stated the standard of care is breached by touching the ureter or coming within one or two millimeters of it while using the LigaSure. Therefore, given the surgeon had come within one or two millimeters of the ureter, the surgeon had breached the standard of care.

The surgeon appealed the decision arguing that the trial judge imposed an improper standard of care. The Court of Appeal agreed, stating the standard of care ought to be defined based on steps or methods, not with reference to “goals” or “outcomes.” They said:

Avoiding accidental deployment within two millimetres of the ureter cannot fairly be described as a step that prudent surgeons would take. Instead, it is a goal or result that is to be pursued. Put otherwise, trying to maintain a safe distance is a step one takes; successfully achieving this is a goal.

… despite finding that [the surgeon] took the steps described for a prudent surgeon, the trial judge predicated liability on the result, namely, that [the surgeon] came within one to two millimetres of the ureter. In my view, this was an error, and had the trial judge properly applied the law to the facts he found, he would have exonerated [the surgeon] from liability.

In other words, they said that the relevant inquiry ought to focus on whether the surgeon deployed the correct steps or, in this case, how the surgeon went about trying to avoid the ureter with the instrument, not whether the surgeon was successful in doing so. The Ontario Court of Appeal said that given the trial judge had accepted that the surgeon followed the correct steps, or tried to do it properly, that was enough to comply with the standard of care.

Thankfully the plaintiff applied for, and received, leave to appeal this decision at the Supreme Court of Canada. This is potentially very important for future medical malpractice cases, especially those involving surgical mistakes. If the Ontario Court of Appeal is right, a surgeon’s defence may come down to “even though I didn’t do it right, I tried to do it right,” and that may be enough to defeat the claim. Hopefully, the Supreme Court of Canada recognizes and corrects this.

[i] In claims involving personal injuries, the injured party (the plaintiff) has the burden of proving all of the necessary elements of their case. In general, those elements are: (1) the defendant owed the plaintiff a duty of care; (2) the defendant’s conduct fell below the applicable standard of care; (3) the defendant’s breach of the standard of care caused harm or injury; and (4) the consequences of the harm or injury.


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