On January 18, 2021, our Supreme Court of Canada in the case of Armstrong v. Royal Victoria Hospital, 2019 ONCA 963 granted the plaintiff’s appeal and restored the trial judge’s verdict in her medical malpractice case against her treating surgeon. This is a critically important decision in how a court will consider the standard of care for medical professionals in medical malpractice legal actions.

Armstrong v. Royal Victoria Hospital: A Brief Summary Of An Important Case

Briefly, the plaintiff, Ms. Armstrong, was seriously injured during a colectomy surgery (a surgical procedure to remove all or part of your colon). The defendant, in this case, was surgeon, Dr. Colin Ward. The surgery appeared to go uneventfully, with no sign that Ms. Armstrong had been injured. However, Ms. Armstrong developed increasingly more concerning post-operative problems. Investigations revealed that Ms. Armstrong’s left ureter was blocked. She sued Dr. Ward on the theory that Dr. Ward was negligent in performing the colectomy that caused the adhesions or scar tissue that blocked her left ureter by improperly using a cauterizing device knows as a LigaSure.

The trial judge found on the evidence that Dr. Ward was negligent. In other words, that he breached the standard of care expected of a surgeon performing this procedure and that his negligence caused damage to Ms. Armstrong’s ureter. The trial judge found that Dr. Ward failed to meet the standard of care because he came within one to two millimetres of Ms. Armstrong’s ureter with the LigaSure, which would be a breach of the standard of care.

The trial judge's ruling was overturned in the Ontario Court of Appeal.

The key issue in the case and, ultimately, why it went to the Court of Appeal and then to the Supreme Court of Canada, is that the trial judge commented in his written reasons that the standard care was to follow a set of steps established by the experts who testified. According to the steps outlined in expert testimony, the surgeon was to identify, protect and avoid close proximity to the ureter with the device. Although the trial judge was satisfied that Dr. Ward had intended to take those steps, he accepted the expert evidence that the only way that Ms. Armstrong’s ureter could have been damaged was if Dr. Ward came too close to the ureter during the surgery thereby causing the injury.

The majority of the Ontario Court of Appeal agreed with Dr. Ward and overturned the trial judge's ruling. They agreed that the trial judge had conflated the causation and standard of care analysis. The majority of the Court of Appeal ruled that the standard of care in medical malpractice cases concerns the behaviour that a relevant prudent person would undertake, not the outcomes that they would seek to attain or avoid. Essentially, the Court of Appeal was saying that the trial judge put the cart before the horse.

In a great win for injured plaintiffs, The Supreme Court of Canada restored the verdict in favour of Ms. Armstrong.

Justice van Rensburg, in dissent, found that the trial judge did not make a reversible error in finding Dr. Ward negligent and granting judgment to Ms. Armstrong. She noted that none of the expert medical witnesses had opined that a competent surgeon using reasonable skill and care would have come close to the ureter. She stated that in cases where the nature of the injury is relevant to what occurred, it is not in error to consider the injury in determining whether the standard of care was breached.

The Supreme Court of Canada adopted Justice van Rensburg's dissent in restoring the verdict in favour of Ms. Armstrong. This decision will greatly help those who are injured from medical malpractice. If the injury is one that would not have happened but for the negligence of the medical professional, the court can use the fact of the injury in assessing the standard of care. A great win for injured plaintiffs.

 

Kristian Bonn

Medical Malpractice Lawyer

Bonn Law