A family member takes you to the emergency room because you are having an asthma attack. Arrived at the hospital, the doctor examines you and raises three possible diagnoses contained in the symptoms you display. After further examination, he decides to treat you for lung trauma. He is wrong and the mistreatment causes complications.
Is the doctor responsible for any damage you have suffered as a result of his misdiagnosis? Will it be possible to receive compensation for the damage suffered? What remedies are available to you in this type of situation?
In this article, Me Lambert discusses your rights regarding the liability of physicians using examples from case law.
General principles and obligations of physicians
Most professionals are subject to many obligations associated with the nature of their work and physicians are no exception to this rule. Their obligations derive mainly from the Code of Ethics and the Civil Code of Québec
Their obligations are divided into two types: the obligations of result and those of means.
In general, the former is more stringent since it requires a guarantee of performance in accordance with the commitment made by both parties. It is rare, but not impossible, to see such a burden imposed on medical liability. Moreover, doctors are bound by this standard when it comes to the use and operation of their equipment, as well as their obligation to secrecy. Thus, the court will impute a fault to the practitioner if the latter makes the use of poorly maintained device or if he violates professional secrecy by disclosing personal information.
Unlike the first type of obligation, the obligation of means does not focus on the result. Rather, what will be judged is the attitude and behavior of the physician throughout his or her service. Indeed, the law does not oblige the doctor to treat and cure these patients. However, he is obliged to deal with them diligently, and to the best of his ability. In order to ensure that this obligation is fulfilled, the court will compare the conduct of the defendant physician to that of a reasonable physician in the same circumstances.
Another obligation incumbent on physicians is to follow their patients. Again, this is an obligation of means. This obligation includes, in particular, the disclosure of the results of medical examinations, post-operative follow-ups, the administration of treatment at the necessary intervals, as well as the availability of such treatment. This obligation is combined with the obligation to treat these patients personally, especially when a contract is concluded between the latter and the doctor. For example, in one case, a physician was ordered to pay damages to a client because he let a student who was doing his residence operate on her without notifying her within a reasonable time.
The physician, in cases that allow it, must also obtain the free and informed consent of his patients with regard to tests, treatments and operations. To do this, they must adequately inform their clients of the risks, chances of success and other treatment options available to them. When it comes to cosmetic surgery, case law imposes a higher standard on the obligation to provide information. In addition to the foreseeable and probable risks, the surgeon will have to disclose the possible and rare risks as well as those that are extremely serious in nature.
Any breach of one or more of these obligations will constitute a fault that will be likely to engage the medical liability of the practitioner if it was the direct consequence of a damage suffered by the victim.
Diagnostic error
It is well recognized in doctrine and jurisprudence that physicians have the right to make mistakes; they are, after all, human beings and are not asked to be infallible. They are thus subject to an obligation of means when it comes to diagnosing a disease or assessing an injury. For example, if a patient exhibits symptoms associated with several diseases and the doctor, with an educated opinion, chooses a treatment that turns out to be wrong, the latter will not be held liable until he has proceeded with caution.
Take the example of a patient who sued her radiologists, nephrologists and pathologists because they misdiagnosed her with periarteritis nodosum. Doctors prescribed too high doses of cortisones, which caused him Cushing’s syndrome. However, the practitioners were exempted since they had passed all the necessary tests diligently following the rules of the art. The court concluded that a reasonable physician would have acted similarly and would likely have come to the same conclusion.
However, a doctor could be liable for this type of error if he has made a diagnosis too early. Indeed, if he did not take the care to pass the patient the required examinations or if he did not seek a second opinion, the court could conclude that there was negligence on his part and that the latter then committed a fault.
Similarly, if the doctor does not keep up to date and concludes that there is an erroneous diagnosis due to a lack of information, it will also be possible to blame him. This is what happened in a case where the lack of knowledge of symptoms related to a perforation of the stomach led the Superior Court to conclude that the physician’s ignorance did indeed constitute medical malpractice.
If you think you may be the victim of a misdiagnosis, do not hesitate to contact us.