Wednesday, 9 March 2016

Medical doctor sued for mistake

This article is about what jurisdiction (province in Canada) a suit against a doctor should be held in.

In November 2007, Mrs. Gulevich lived in Ontario. She suffered from headaches and vision changes. Her family physician referred her to a neurologist who prescribed medication for the headaches. The family physician also requisitioned a CT scan of Ms. Gulevich’s head. She had the CT scan on November 16, 2007, and the following day Dr. Murray Howard Miller, a diagnostic radiologist practising in Ontario, reviewed the scan results and reported that the results as normal. On December 10, 2007, Ms. Gulevich consulted with her family physician who advised her that the CT scan result was normal. She told him that her headaches had improved. The family physician’s chart states that her condition was stable and apart from a concern about mononucleosis in the workplace, Ms. Gulevich reported that she was otherwise well.

Ms. Gulevich sought no further treatment in Ontario and in February 2008, moved to Fort McMurray, Alberta. When her headaches recurred in 2008, she consulted a family physician in Fort McMurray. Over the next few years her symptoms worsened, and ultimately her family physician requisitioned expedited MRI and CT scans. The tests were conducted in July 2011, and revealed a frontal lobe mass. Ms. Gulevich was flown to Edmonton that day. She was diagnosed with a malignant brain tumour and underwent surgery to remove the tumour. This was followed with ongoing, intensive cancer treatment in Edmonton.

A radiologist and a radiation oncologist (doctor who examines cancer patients by use of X-rays) retained by the Mr. and Mrs. Gulevich reviewed the November 16, 2007, CT scan. The radiologist noted an abnormality with a diameter of about 3 cm on the front portion of the lower part of the left frontal lobe. He said that it would have been readily identifiable because of its size, its presence on multiple images and the relatively marked degree of darkness on the CT scan. He compared this to the MRI taken on July 5, 2011 which identified a mass in the same area which measured 6.5 cm, noting that the diameter of the mass had more than doubled. This corresponded to an increase in the tumour by more than a factor of eight times. He concluded that the large tumour clearly represented an enlargement of the tumour visible on the November 16, 2007 CT scan. He opined that the conduct of Dr. Miller fell below the standard of care of a reasonable radiologist.               

The radiation oncologist’s opinion included a discussion of the options available to Ms. Gulevich if the tumour had been diagnosed in 2007. He said: If this patient’s tumour had been diagnosed when it still appeared to be low grade on imaging (non-enhancing), one option would have been to observe it. Another option would have been to recommend a craniotomy at the point at which Mrs. Gulevich’s headaches became sufficiently troublesome or when there was progression, either in the low-grade tumour itself or in the form of dedifferentiation to high-grade disease. She would have had to consider the risks associated with the procedure and then decide whether and when to proceed with it. Surgery would have given the diagnosis and may well have resolved the headache problem.”

If this patient’s tumour had been diagnosed when it still appeared to be low grade on imaging (non-enhancing), one option would have been to observe it. Another option would have been to recommend a craniotomy at the point at which Mrs. Gulevich’s headaches became sufficiently troublesome or when there was progression, either in the low-grade tumour itself or in the form of dedifferentiation to high-grade disease. She would have had to consider the risks associated with the procedure and then decide whether and when to proceed with it. Surgery would have given the diagnosis and may well have resolved the headache problem.

 The radiologist in Alberta further opined that the dedifferentiation from a low-grade (non-malignant) to a high-grade (malignant) tumour would likely have occurred in late 2010 to 2011. He concluded that the “impact that the tumour was not diagnosed in 2007 became relatively modest until mid to late 2009 when the headaches began to become progressively worse. This would have been associated with a much stronger case for performing a craniotomy and, afterward, for considering treatment to follow.” Ms. Gulevich claimed in her suit against Dr. Miller that had she been properly diagnosed by Dr. Miller, she would have elected to have a craniotomy in 2008 and not continued to suffer for during the following years.

On June 6, 2013, the Gulevichs commenced a court action against Dr. Miller in Ontario and served the documents on him by a process server in Ontario. A service of a claim outside Alberta provides that a commencement document may be served outside Alberta and in Canada only if

(a) a real and substantial connection exists between Alberta and the facts on which a claim in the action is based, and

(b) the commencement document discloses the facts in support and specifically refers to the grounds for service of the document outside Alberta and in Canada.

Without limiting the circumstances in which a real and substantial connection may exist between Alberta and the facts on which a claim in an action is based, in the following circumstances a real and substantial connection is presumed to exist and the claim relates to a tort committed in Alberta.

There is the rub. The tort (wrongdoing) took place in Ontario when Dr. Miller misdiagnosed Mrs. Gulevich’s medical problem.  
When the Gulevichs initially issued their claim in the lower court (the chambers judge found that the tort (wrongdoing) was committed in the province of Ontario by the radiologist in Ontario and since the location of the tort is a presumptive connecting factor between forum and actionOntario had jurisdiction. He rejected the Gulevich’s lawyer’s’ argument that the location of the tort was Alberta because Mrs. Gulevich suffered from injuries occurred after she moved to Fort McMurray. Dr. Miller preferred to have the claim filed in Ontario, which was the place where “the alleged wrongful act, from which the damage flows, was clearly committed.”

The Gulevich’s lawyer’s argument didn’t make any sense whatsoever. Here is an example to consider. You are struck by a car in Ontario and after you are released from the hospital and have moved to another jurisdiction other than the one where the accident took place and while you are living in that new jurisdiction, you begin suffering from the effects of the accident that occurred in the one that occurred in that original jurisdiction, why would you sue someone in the jurisdiction where you are currently living? Who would you sue in the new jurisdiction?

The chambers judge also concluded that Mrs. Gulevich and her husband had not rebutted the presumptive jurisdiction of Ontario because the misdiagnosis in Ontario did not amount to a “relatively minor” element of the multi-jurisdictional tort; rather, it was the “foundation of her claim” and the “incident causative to her damages. 

I will give you my opinion as to why her claim was initially filed in Alberta. It was done so that the case would be heard in Alberta. There are lawyers who pull that scam—and that is what it is; a scam. They know that if the case is heard in another province, another lawyer will get the case in the other province and the lawyer who filed the case will get nothing after that transfer is made. When I was practicing law in Ontario, there were some scumbag lawyers who tried to pull that scam on my clients by issuing the claim in the cities the lawyers lived in rather than the city where the defendants lived in.  

Accordingly, the Chambers judge set aside service of the statement of claim. Although he had concluded that the Alberta court had no jurisdiction, he commented that if he had been required to consider which of Ontario or Alberta was the forum conveniens, he would have found that the dispute should be adjudicated in Alberta.

Based on what I have previously said in this article, it is beyond my understanding as to how he felt that the convenient forum should be Alberta considering that the wrongdoing took place in Ontario.

Two issues arise in this appeal. First, where did the initial injury occur; Ontario or Alberta? Second, if the negligent act occurred in Ontario and the initial injury occurred in Alberta, where was the tort committed? The first issue is a question of fact, reviewed for palpable and overriding error. The second question asks which province has a real and substantial connection to the claim. It is a question of law reviewed for correctness.

Some torts can be parsed into constituent elements, with the location of the “major” elements being used to situate the tort. The chambers judge found that the injury occurred in Ontario because from the moment of Dr. Miller’s negligent reading of the CT scan, Mrs. Gulevich was denied medical services appropriate to her condition at that time she was still living in Ontario. It was after she moved to Alberta that the suffering really began. There can be no presumptive jurisdiction when a plaintiff has suffered an injury, left the jurisdiction and pain and inconvenience accumulates elsewhere.

The Gulevichs sued in its preferred jurisdiction and the defendant (Dr. Miller) applied for a declaration that the plaintiff’s preferred jurisdiction lacked a “real and substantial connection.” Obviously he didn’t want to have to fight his case in Alberta. Said another way, the party arguing that the court where the claim was filed might assume jurisdiction and if so, has the burden of identifying a presumptive connecting factor that links the subject matter of the litigation to the forum (court).

The Gulevich’s lawyer pleaded that “the claim relates to a tort committed in Alberta” which requires him to discharge the burden. If successful, “the burden of rebutting the presumption that Alberta is the proper forum rests on the party challenging the assumption of jurisdiction” and in this case, the respondent doctor. The doctor can rebut the presumption by showing that the “presumptive factor does not point to any real relationship between the subject matter of the litigation and the forum or points only to a weak relationship between them. Of course in this particular case, Dr. Miller would have a very steel hill to climb.

Where the presumptive connecting factor is the commission of a tort in the province, rebutting the presumption of jurisdiction would appear to be difficult, although it may be possible to do so in a case involving a multi-jurisdictional tort where only a relatively minor element of the tort has occurred in the province. For example, If a cancer doctor in Alberta chose not to have another radiologist in Alberta do the exam after Mrs. Gulevich went to him, she could sue his and as such, the case could be heard in Alberta and then included Dr. Miller in the case so that the case could be heard in Alberta.  However in this particular case, there was no genuine reason to question Dr. Miller’s analysis of the readings of the X-rays. In any case, the Gulevich’s didn’t sue any doctors in Alberta.

The Court of Appeal stated; “Where a wrongful act occurs in one place and harm is suffered in another, it is unnecessary and unwise in determining where the tort has occurred to have to resort to any arbitrary or inflexible rules such as those suggested by the place of acting and the place of harm theories. Rather, it may be appropriate to regard the tort as having occurred in any place that was substantially affected by the defendant’s activities or its consequences.” unquote

The Alberta Court of Appeals ruled, “The Alberta court has jurisdiction over this action. We allow the appeal and reinstate the order for service (of court documents) outside Alberta.”  unquote

Now you may wonder why they made that decision considering what I had earlier said in this article. The province of Alberta spent a great deal of money treating Ms. Gulevich for her cancer treatment in Alberta so they also sued Dr. Miller for his error in judgment. When the matter goes to trial, only Dr. Miller will be attending from Ontario. Because there will be a number of doctors in Alberta testifying at trial, the court had to consider that that only one person would be coming from Ontario, therefore it would be unfair to the taxpayers of Alberta to have all those doctors having to go to Ontario for a trial there. That would be incompatible with any notion of fairness and efficiency.

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