Clinical judgment is a form of defence that is frequently relied upon by physician defendants in medical malpractice cases. In its simplest form, the defence is a tacit acknowledgement that an error or wrong decision was made, but that it is excused because it was made as an acceptable error as part of the physician’s exercise of clinical judgment.
It has been expressed in Canadian law as far back as the Supreme Court decision of Wilson v. Swanson, [1956] S.C.R. 804 at pp. 812-13:
“An error in judgment has long been distinguished from an act of unskilfulness or carelessness or due to lack of knowledge … the honest and intelligent exercise of judgment has long been recognized as satisfying the professional obligation.”
The Supreme Court has also discussed the fact that doctors at law are not expected to provide perfect results and cannot guarantee successful outcomes in every circumstance. The Courts must be careful not to view circumstances with perfect hindsight, saying in Lapointe v. Hôpital le Gardeur, [1992] 1 S.C.R. 351 at pp. 362-63:
“… courts should be careful not to rely upon the perfect vision afforded by hindsight. In order to evaluate a particular exercise of judgment fairly, the doctor’s limited ability to foresee future events when determining a course of conduct must be borne in mind. Otherwise, the doctor will not be assessed according to the norms of the average doctor of reasonable ability in the same circumstances, but rather will be held accountable for mistakes that are apparent only after the fact.”
However, it is not as simple as merely characterizing something as an error in judgment to cloak a decision or diagnosis as being acceptable and not negligent at law. One must dig deeper to understand the principles and the process upon which the decision or diagnosis is based. A countervailing legal statement that is often cited is from Whitehouse v. Jordan, [1981] 1 All E.R. 267 (H.L.):
“Merely to describe something as an error of judgment tells us nothing about whether it is negligent or not … it depends on the nature of the error. If it is one that would not have been made by a reasonably competent professional man professing to have the standard and type of skill that the defendant held himself as having, and acting with ordinary care, then it is negligent.”
An important way to deal with a possible clinical judgment defence on a medical malpractice claim is consider the details of how the clinical judgment was exercised and the foundation upon which the decision is based.
For instance, the typical situation in which a clinical judgment defence is raised is when there has been a misdiagnosis of a condition. Often there will be a number of symptoms present that may make the incorrect diagnosis seem reasonable in the circumstances to the doctor.
However, a well established process that is frequently used in medicine to arrive at a diagnosis is known as assessing or generating a differential diagnosis. This involves the physician identifying a number of possible diagnoses consistent with the patient’s symptoms, and then arriving at the final diagnosis by a systemic process of elimination. Through this process, the physician cannot just make a diagnosis of what she believes is most likely and then take no further steps to confirm it. The physician must follow a systemic process of elimination in coming to the final diagnosis.
A basic rule involved in the process of dealing with differential diagnoses is to rule out the worst case scenarios first. When this rule is breached, it can have serious consequences for the patient if in fact the correct diagnosis was a serious one or one that needed to be addressed in a timely way. This process was nicely described in an Ontario case, Adair v. Hamilton Health Sciences Corp., [2005] O.J. No. 2180 (SCJ) at para. 117, as follows:
“Those who diagnosed did not follow the systemic process of differential diagnosis. Critically, several doctors preferred to deal with the most likely cause, rather than the most serious. The worst possible ailment was not eliminated from the list of differential alternative first. The form of diagnosis used by the defendants remained focused on probability, whereas a proper differential diagnosis must also be informed by considerations of severity.”
An initial diagnosis may also have to be reconsidered or revisited depending on circumstances. There may be instances where the initial diagnosis arrived at by a physician was done through a legitimate exercise of clinical judgment. However, another event or simply the passage of time may require the physician to revisit that initial diagnosis.
For instance if the patient is not responding to treatment designed to address the initial diagnosis and symptoms, a failure to revisit the initial diagnosis may constitute negligence. As well, if the patient’s condition is worsening with time, the initial diagnosis may again need to be reconsidered. In some instances, a failure to consult with another specialist may be negligent where the patient’s symptoms may be outside the specialty or expertise of the treating physician.
As well, it is always important to consider whether the physician has collected and considered all of the necessary information before performing the process of coming to a diagnosis. For instances, were all of the appropriate tests carried out, was a full and proper history taken from the patient, was a proper physical exam conducted, and were other specialists appropriately consulted? A failure to collect and consider all the proper information may also take the situation outside of a proper exercise of clinical judgment and into a act of negligence.
Ultimately the defence of clinical judgment is one that arises frequently in medical malpractices cases and must be carefully considered by any lawyer handling a plaintiff’s case. If you have any questions related to such issues, please feel free to contact us.
