Legal column: Reverse thinking not allowed

“The procedure ended in a bad result, so it must be the doctor’s fault!” Luckily, this kind of logic is not allowed in medical malpractice law. It reared its ugly head recently in the Manitoba Court of Appeal, but the court squashed it down, calling it “clearly impermissible, reverse thinking.” It all started with arthroscopic knee surgery that seemed to go off without a hitch. The surgeon followed typical methods: He removed a large piece of torn cartilage, used a power shaver to smooth down the surface of the knee cap and trim back some membrane, then closed the wound. Unfortunately, shortly after the operation, the patient began suffering from bad circulation and pain in her lower leg. An ultrasound revealed a pseudoaneurysm in an artery behind the knee, apparently caused by direct trauma. It was repaired but the pain persisted. Read: Team debriefs: Participate and minimize your medical-legal risks At trial, the surgeon was adamant that none of the instruments he used to perform the surgery had come into contact with the artery. The trial judge accepted this and held him blameless. The patient appealed, but the appeal court held him blameless too. It was a close call, though. One of the three appeal judges dissented. The dissenting judge suggested that at the trial, when the surgeon testified on the witness stand that none of his instruments had made contact with the artery, he was either mistaken or lying. How else could the injury have happened? “This could only have occurred if the instrument had strayed,” said this judge. “The surgeon denied that he did so. However, that remains the likely explanation for how the injury occurred." This judge found support for his conclusion from the patient’s expert, who said injuring an artery during this kind of procedure, while recognized as a “possible” complication, is exceedingly rare and “should not occur at all.” In other words, “the standard of care with respect to this procedure includes the requirement that the surgeon not allow instruments to stray from the knee capsule and strike the artery.” And this must have happened because there was a bad result. No, said the other two judges. It is not permissible to reason backwards from a bad result and decide that the doctor must have done “X,” even though there is no proof the doctor did “X,” or indeed anything else untoward. This kind of reverse thinking has long been seen as wrong in law. Decision after decision has ruled that doctors cannot be measured solely by their results. Read: Settlement approved in lawsuit against fertility doc alleged to have used wrong sperm For example, the two majority judges cited a leading malpractice case from a few years ago involving a patient who underwent surgery on her colon, which resulted in injury to her ureter. Even though there was no proof, the trial judge made the inference that the surgeon must have touched the ureter with a cauterizer. And obviously, the trial judge reasoned, a prudent surgeon would not allow a cauterization instrument within a certain distance of a vulnerable part of a patient’s body. Therefore, he was negligent. But this backward-looking decision was subsequently overruled and reversed. Reasoning backwards from a bad result is not just bad logic, it amounts to applying a standard of perfection. And perfection is, of course, not the correct standard to judge doctors by. It amounts to the expectation of a “guaranteed” outcome and, sadly, there are no guarantees in medicine or anything else for that matter. Accordingly, the court reiterated several well-settled malpractice principles: The standard of care required of a medical practitioner is not perfection but a reasonable degree of skill and knowledge, similar to what could reasonably be expected of a normal, prudent practitioner of the same experience and standing. Even the patient’s expert admitted that injuring an artery during knee arthroscopy is a recognized, albeit rare, complication, and “can occur without negligence.” His report included a medical journal article saying, “pseudoaneurysm formation after knee arthroscopy can also appear without a history of penetration of the knee capsule or vessel wall,” possibly because of “the shear stress on the knee structures and arteries during surgery and specifically during arthroscopy.” Read: Legal column: Imaginary patients This, together with the surgeon’s own testimony, successfully rebutted the inference that the cause of injury was an instrument straying. “The trial judge came to the correct conclusions,” ruled the appeal court majority. “The surgeon did not breach the appropriate standard of care, and it has not been established that he did, or failed to do, anything to cause the injury." In the end, the appeal court concluded there was no negligence, and the injury to the knee artery was nothing more than an “unfortunate misadventure.” Those happen. They are not negligence. The only basis for finding negligence here would be to employ hindsight, and “utilize a results-oriented approach and to reason backwards.” In other words: “The procedure ended in a bad result, so it must be the doctor’s fault.” Luckily, this kind of logic is not allowed. Bill Rogers is a Toronto lawyer and writer covering medical and pharmaceutical issues.

Legal column: Reverse thinking not allowed

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