May 10, 2019

Who Decides if a Patient is “Better” – Doctor or Patient?

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Author: Alex Wolfe, Associate

A recent case from the Ontario Court of Appeal confirmed that surgeons should not leave their patients to determine whether or not they are “better” when they are providing discharge instructions to their patients.

In Crump v. Fiture, 2018 ONCA 439 (CanLii), a young girl was referred to a general surgeon for suspected appendicitis. The defendant surgeon examined the girl and recorded appendicitis as the third potential diagnosis on his list of differential diagnoses. While discharging the girl, the surgeon informed her mother that she should return to the hospital “if she did not get better.” The mother relied on this advice, as did her family doctor, and no medical assistance was sought out during the following week as there was no improvement or deterioration in her condition. Days later, the young girl’s fever worsened and she returned to the hospital to find that her appendix had ruptured and was causing damage to her surrounding organs. She sued the surgeon for failing to diagnose and treat her appendicitis when she first arrived at the hospital.

At trial, the judge found that the surgeon should have arranged an ultrasound, scheduled a follow-up visit, or admitted the young girl to the hospital, and that the surgeon’s attempt to “put the mother in charge” was below the standard of care.

The surgeon appealed, stating that the plaintiff’s own surgical expert had agreed that it was permissible to place the mother in charge. This argument was based on the affirmative answer to the following cross-examination question:

Q: And so it would have been appropriate to give a discharge instruction which essentially puts the mother in charge; “I want you to look at her. And this is what I want you to look for and if she’s not better, I want you to bring her back”, right? That’s what you’re saying. If she’s not better the following morning to return for reassessment, an ultrasound, that’s what you say, right?

The Court of Appeal disagreed that this response broadened the standard of care. The Court pointed out that the question posed to the plaintiff’s expert was irrelevant, as the mother was never instructed by the surgeon to return the following morning if she was not better – just “if she was not better.” The verdict in favour of the plaintiff was affirmed.

Practically speaking, this case reminds us that sick patients are entitled to rely on the advice received by their doctors, and that long, compounded questions in cross-examination may not be sufficient evidence to prove that the trial judge made a palpable and over-riding error.