Legal column: Nobody’s perfect

Doctors are allowed to make mistakes. They are allowed to make errors in judgment. Perfection is not the standard. This long-standing principle came into play in a recent Saskatchewan Court of Appeal case involving a missed diagnosis that led to the patient having part of the jaw removed. The error occurred back in 1990, when a pathologist was given a tissue specimen from a lesion in the patient’s mouth, and told to “rule out ameloblastoma.” He diagnosed a radicular cyst, which arises from the tooth root due to inflammation. Unfortunately, in the years that followed, a variety of oral and dental problems ensued, including abscesses, and in 2007 it was discovered that the patient had actually been suffering from ameloblastoma all along. If it had been caught in 1990, surgery would have been done to prevent the further growth of the tumour. As it was, a large portion of the jaw had to be removed and rebuilt using a combination of titanium, plastic and sections of the patient’s leg bone. The legal standard of care applied by a court is, of course, the standard that existed at the time and place of the incident. Back in 1990, in Regina, a pathologist faced with a rule-out request was expected to do research by reading textbooks, and also consult with at least one “internal” colleague. Going further and referring out to another specialist was optional, a judgment call. He decided not to do that. It was the wrong call. But as the court put it, “although he was wrong, he was not negligent.” The patient’s lawyers argued, somewhat circularly, that it is not up to the pathologist to decide if it is necessary to refer a case out to another specialist, if the pathologist lacks the training or experience to make the diagnosis that would be referred out. “With respect,” ruled the court, “that does not accord with the law relating to the standard of care. The duty to refer may exist when a physician lacks the competence or experience to carry out the task in question. In those circumstances, the referring physician must, in order to make the necessary clinical judgment as to whether or not to refer the patient, assess their own training and experience. The plaintiff here is effectively saying that the physician must make the correct decision. That would constitute a standard of perfection based on the result, rather than a standard of reasonable care and skill in carrying out the task of making the decision.” In malpractice litigation it is possible, and not uncommon, for a patient to add another layer of argument and basically say: “Even if the doctor met the standard of care, the standard itself is no good!” This is a long shot, and it did not work in this case. Standard of care The law says a standard of care is good enough unless it is “fraught with obvious risk” that even a layperson could see. As the Supreme Court of Canada explained in the leading case on this issue, the 1995 decision Ter Neuzen v Korn, if a standard of care does not require, say, informing the patient about the risks of a procedure, or making sure no items like sponges are left inside the patient before finishing surgery or taking precautions against “an admixture of ether vapour and oxygen” exploding in the operating theatre, then anyone would be able to see that the standard is, to put it politely, insufficient. That was not the case here. As the court said, “The standard practice at issue is the self-assessment by a general pathologist that had been asked to rule out a diagnosis of a rare tumour, ameloblastoma. An ordinary person would not see this practice to be fraught with obvious risks, to lack obvious and reasonable precautions or to suffer from a similar flaw.” On the contrary, said the court, it was necessary to bring in experts to elucidate things like the training, experience and practice of general pathologists, the relative value and availability of other resources and the challenges that arise in diagnosing or excluding a diagnosis of ameloblastoma. Indeed, the court noted that ameloblastoma is an extremely rare thing, the annual incidence of which is “well below one in a million.” Plus, radicular cysts and ameloblastoma have similar and overlapping histologic features. “When faced with differential diagnosis and overlapping clinical and pathological findings, pathologists tend to select the statistically more probable diagnosis.” The court was silent on what the standard of care would be today in this kind of situation. Today we have the internet, amazing databases and technology, and 33 years of medicine getting better and better. Presumably, the standard is different now. Bill Rogers is a Toronto lawyer and writer covering medical and pharmaceutical issues.

Legal column: Nobody’s perfect

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