A recent decision from the Court of Appeal for Ontario highlights uncertainty in the law surrounding causation in medical malpractice cases of delayed diagnosis allegations, according to a lawyer that worked on the case.
The April 25 decision, White v. St. Joseph's Hospital (Hamilton), 2019 ONCA 312, upheld the lower court’s decision, but it also included obiter remarks, said Paul Harte, principal at Harte Law in Richmond Hill, Ont., who represented the appellants. Harte says it’s the latest in a string of cases where a plaintiff failed in a delayed infection case.
“One of the things that this case demonstrates is the real challenge in establishing causation in a medical negligence case when there are both negligent and non-negligent causes,” says Harte. “In this case, it was alleged that there was a delay in treatment, but of course there was an underlying illness to begin with. And sorting out what materially contributes to a plaintiff’s loss can sometimes be very challenging as this case demonstrates.”