Physicians are obligated to be diligent throughout the treatment of their patients. Again, this is an obligation of means, that is, the physician only has to show that he behaved like a prudent and reasonable physician in order to have his liability released. He is therefore entitled to error, unless it was caused by his own negligence.
It is important to specify that this rigour must be present from the moment the patient consults the doctor for the first time, until the moment when the latter or another doctor signs the discharge from the hospital to the patient.
Negligence during the consultation
The history is one of the very first steps that all reasonable doctors must take. In fact, according to the court, this would be the most important stage of the medical consultation. It consists of learning about the patient’s medical history in order to facilitate the patient’s diagnosis as well as to prevent complications that may occur during treatment.
During this step, the doctor must be attentive in order to carefully sort the information provided to him by the client. It should not focus only on the symptoms exhibited by the patient and failure to inquire about the patient’s medical history could be considered a fault by a court if this act ever causes harm.
For example, such an omission on the part of a doctor in the emergency room was the cause of the death of a 20-year-old man. The latter was taken to the hospital by his family who informed the doctor about his history of migraine, tremor and vomiting. However, the emergency physician ignores this information and focuses only on the fact that the young adult has his head leaning forward. He diagnoses him with muscle spasms and sends him home with an analgesic. The boy died shortly afterwards from an obstruction of the cerebral canals. The Superior Court concluded that this unfortunate incident could have been avoided if the physician had taken into account the patient’s medical history; he would have proceeded to a drainage of the cerebral fluid which would have saved the life of the young man.
It would be all the more serious to neglect the medical history of your patient when it comes to prescribing an operation or a drug. Indeed, some treatments may be subject to contraindications. For example, a patient was prescribed an oral contraceptive by a doctor who neglected to inquire about her phlebitis history. However, it is well recognized that the mixture of these factors may be the cause of cerebral hemorrhage and this is exactly what happened in this case leaving the plaintiff partially paralyzed. The Court of Appeal found negligence on the part of the physician and ordered the physician to compensate the victim.
Neglect during physical examinations
It is by taking into account the information provided by the patient that the doctor will choose, if necessary, the appropriate tests to complete his diagnosis. Since some tests may be invasive in nature or may pose risks, it is important not to subject the patient to them unnecessarily. Nor should we neglect to pass the tests dictated by the rules of the art. Indeed, it has often happened that the courts have condemned a doctor for not having carried out certain specific tests that a doctor with up-to-date knowledge would have passed on to the patient.
This was the case of a doctor who neglected to do an ultrasound after a patient reported that she felt a decrease in the movement of her fetus. Since an ultrasound had just been done, 15 days before the pregnant woman’s concern, the doctor did not think it wise to check the condition of the fetus. A few days later, the woman lost the child. The evidence showed that an ultrasound would have made it possible for the doctor to realize that an emergency caesarean section was needed in order to save the child’s life, and the court ordered the doctor to pay damages to the woman and her family.
Case law has also recognized that a failure to perform an X-ray constitutes a fault when it comes to diagnosing a fracture, surgical residues or cancer.
A physician may, however, be exempted in cases where the physician has performed all the recommended examinations without detecting anything, provided that he has behaved reasonably.
Consultation with a confrere
It is strongly recommended that a doctor consult a colleague before making his diagnosis, especially if he knows a colleague more specialized in the field. A second opinion is often useful in order to detect errors in the doctor’s procedure and to bring more credibility to the conclusions of the attending physician.
Moreover, the courts and the College of Physicians do not hesitate to condemn doctors who have not resorted to a second opinion, which could have avoided serious complications for their patients.
This was the case of a neurologist on call who interpreted a patient’s X-rays and diagnosed him with three metastases. The patient was then given a radiotherapy treatment to alleviate his pain. It is once the treatments are completed that another doctor realizes that the metastases were actually aneurysms requiring two specific operations. The unnecessary treatment of radiotherapy was not without risk, the patient remained with serious sequelae. The Superior Court concluded that the hasty and erroneous diagnosis could have been avoided if the neurologist had consulted or referred the patient to another physician.
If you believe you have been the victim of medical negligence, do not hesitate to contact our practice.