Category: Causation
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Snell v Farrell: Causation by Inference — The Robust and Pragmatic Approach to Proving Causation in Canadian Medical Malpractice Law
Margaret Snell was seventy years old and legally blind in her right eye. She had a cataract. Surgery could restore some useful vision. It was an elective procedure (there was no urgency), and her ophthalmologist, Dr. D.H. Farrell, explained the operation and its risks before she consented. What happened during that surgery, and specifically what caused the permanent and total loss of sight in her right eye, became the central question in a case that reached the Supreme Court of Canada and produced the country's definitive ruling on how causation must be proved in a medical malpractice claim.
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Uribe v Tsandelis: The SOGC “Prepare for Delivery” Obligation, Causation by Omission, and Jury Verdicts in Multi-Defendant Birth Injury Cases
Elijah Uribe was born on April 29, 2010, at Grand River Hospital in the Kitchener area of Ontario. By the time he was delivered at 10:49 in the morning, he had been without adequate oxygen for too long. He suffers from severe cerebral palsy and other serious medical conditions.
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Wilton v Genik: The Inevitable Death Defence in Cardiac Malpractice and Causation Under Lawson v Laferriere
The trial lasted six days. The trial judge found that the defendant doctor, Dr. Jeffrey Genik, was negligent, and Dr. Genik did not appeal that finding. He had failed to take an appropriate patient history. He had failed to perform another ECG. He had failed to reach an appropriate diagnosis. He had failed to give appropriate discharge advice. These are foundational errors in the emergency assessment of a patient with cardiac symptoms. In any other circumstances they might be the beginning of a successful medical malpractice action by the family of a man who died of a cardiac event on October 12th.
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Benhaim v St-Germain: Adverse Inference, Causation, and the Limits of What Negligence Can Prove — The Supreme Court of Canada’s Leading Delayed Cancer Diagnosis Decision
The hardest causation problem in all of medical malpractice is not proving that a physician was negligent. It is proving that the negligence made a difference. And nowhere is this harder than in delayed cancer diagnosis, where the physician's failure to investigate a finding destroys the very evidence that would show what stage the cancer was at when it should have been found.
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Clements v Clements: Material Contribution to Risk — When the But-For Test Can Be Set Aside and When It Cannot
On August 7, 2004, Joan and Joseph Clements were riding their motorcycle through wet weather in British Columbia, heading from Prince George toward Kananaskis, Alberta. The bike was overloaded by approximately 100 pounds. A nail had punctured the rear tire without Mr. Clements's knowledge. When he accelerated to at least 120 km/h in a 100 km/h zone to pass a car, the nail fell out, the tire deflated, and the bike began to wobble. He could not regain control. Mrs. Clements was thrown off. She suffered a severe traumatic brain injury.
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KS v Willox: Causation by Omission, Regional Standards of Care, and the Causal Chain in a Failed Birth Injury Claim
K.S. was born on October 24, 2000, at 23 weeks' gestation, weighing just under one and a half pounds. He was born at the Royal Alexandra Hospital in Edmonton after his mother was airlifted from Peace River. By the time of trial he was 15 years old. He had severe cognitive deficits from the loss of white brain matter. He was blind in one eye. He was hypersensitive to external stimuli and could not hold a conversation. He had recently been diagnosed at the Glenrose Hospital with severe Autistic Spectrum Disorder. He would require full-time support for the rest of his life.
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Murray Estate v Advocate Contracting Ltd: The Nova Scotia Supreme Court Decision That Benchmarked What a Family’s Loss of Guidance, Care and Companionship Is Worth
Every number in a fatal accident claim is, in some sense, a translation, an attempt to render in dollars a loss that cannot be measured in dollars. When a mother dies and leaves behind a husband of thirteen years and two young children, the question of what that family has lost is answerable in human terms: the care that will no longer be given, the guidance that will no longer be received across all the years ahead, the daily presence of someone around whom the family's life was built. The question of what that loss is worth in money is a different and harder question, and it is the question that courts must nonetheless answer.
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