A medical malpractice trial decision released last month by the New Brunswick Courts is favourable to personal injury claimants in Nova Scotia, New Brunswick and PEI. It provides helpful guidance on how Courts will assess the complicated issue of causation in cancer cases where the negligence of a doctor did not specifically cause the cancer, but where it caused an increased risk of cancer.
The patient in the case had a mole removed from her buttocks in 1995. It reappeared a year later. It was repeatedly misdiagnosed by her doctor. In 2001 she mentioned the mole to another doctor who investigated and correctly diagnosed it as cancerous. Her oncologist advised her that it was a life-threatening disease, that it had already metastasized and that he was not optimistic about her outlook given that she had not been treated over the previous six years. He also advised her that her outlook was not good and that most patients in her circumstances face a life expectancy of one to two years.
Fortunately, the patient responded well to the treatment and though she spent years constantly attending medical appointments, all of her medical news has been positive. She is no longer physically ill. She filed a lawsuit against the doctor who misdiagnosed her 1995 and 1996 moles.
The trial judge found that the defendant doctor did not use a reasonable degree of skill and care to ensure that his diagnosis in 1995 was correct and that he did not meet the standard of care which he owed to his patient. It was further found that his manner of communicating the conclusion in his report was ambiguous, that it did not meet the standard of care he owed to his patient and that it contributed to her loss.
On the issue of causation the judge found that while the doctor’s negligence did not cause the patient to get cancer, « …it was the direct cause of an increased risk to her health and the requirement that she submit to more onerous treatment. As a result of that she undoubtedly endured stress and anxiety and other forms of pain and suffering that would have attended this sequence of events, all of which she would not have endured, but for the negligence… » the doctor. He further found that his negligence was the factual cause of her losses.
Because his patient had been successfully treated, the doctor argued that she had no losses. He argued that while he may have been negligent, his patient suffered no damages. Lawyers for the doctor relied on a Supreme Court of Canada case involving a plaintiff who suffered severe stress after discovering a dead fly in a bottle of water. They relied on the following written statement from the Supreme Court of Canada:
…psychological disturbance that rises to the level of personal injury must be distinguished from psychological upset. Personal injury at law connotes serious trauma or illness…The law does not recognize upset, disgust, anxiety, agitation or other mental states that fall short of injury. I would not purport to define compensable injury exhaustively, except to say that it must be serious and prolonged and rise above the ordinary annoyances, anxieties and fears that people living in society routinely, if sometimes reluctantly, accept. The need to accept such upsets rather than seek redress in tort is what I take the Court of Appeal to be expressing in its quote from Vanek v. Great Atlantic & Pacific Co. of Canada (1999), 48 O.R. (3d) 228 (C.A.): « Life goes on » (para. 60). Quite simply, minor and transient upsets do not constitute personal injury, and hence do not amount to damage.
The patient argued that the psychological stress associated with a cancer misdiagnosis was greater than a « minor and transient upset » and that it therefore constituted personal injury and warranted damages. The judge agreed. The psychological effects associated with a cancer misdiagnosis were significant and warranted compensation, even though the patient had been physically cured.
Taking into account the fact that the patient suffered a major emotional and psychological trauma, the effects of these injuries on her over the last ten years, the life-altering effect that the doctor’s negligence has had on her outlook on life and her career, the judge found that an appropriate award for pain and suffering was $100,000. Because the misdiagnosis also temporarily derailed the patient’s career, the judge awarded an additional $263,600 for income loss.