Known complications can still be negligent – don’t miss the free session
Join this free industry webinar as Mahsa Dabirian and Toby Samson, partners at Bogoroch & Associates LLP, address the challenges of proving a medical malpractice claim where the poor outcome is considered a known complication of a procedure.
The session will also provide a refresher on breach of the standard of care, and explore the circumstances in which a known complication can still be considered negligent.
Watch now and find out the answers to:
Mallory: [00:00:04] Hello, everyone, and thanks for joining us today. I'm Mallory Hendry, senior content specialist with Canadian Lawyer magazine. And I'm pleased to introduce today's webinar. Proving a medical malpractice Claim Known complications can still be negligent. The presenters we have with us today are Mahsa Dabirian and Toby Samson, both partners at Bogoroch Associates. Over the next hour, these experienced medical malpractice lawyers will provide a refresher on breach of the standard of care. Explore the circumstances in which a known complication can still be considered negligent and address the challenges of proving such a claim. At the end of the presentation, the panel will participate in a question and answer period, so be sure to type any questions you have into the Q&A box within the webinar software. I'm going to turn things over now to our panelists to begin the presentation. Take it away, Mahsa.
Mahsa: [00:01:07] Thank you. Good afternoon, everyone. Thank you for being here today. Today, we're going to be discussing the topic of known complications. Two words that all medical malpractice lawyers are really keenly aware of. The notion of known complications has been used as an extremely useful defense, and it has been persuasive for judges and juries alike to find that the defendant physicians were not negligent. Rather, the bad outcome was almost inevitable. And commonly accepted sources of evidence give physicians a significant advantage to this. For example, the fact that all surgical procedures are potentially risky makes determining whether a complication was a result of negligence or simply acceptable misadventure difficult. And in surgery, there's always the potential for damage, even if the surgery was done perfectly. There could be complications that nobody predicted. And in many complication cases, the defense will say, well, that's not negligent. It's a known complication. So today we will be delving into the issue of known complications and we will discuss what is a known complication. Why does the presence of a known complication make litigating a case more difficult? Does a no complication mean there was no negligence? How does a plaintiff show that a bad outcome that is a known complication was the result of negligence? As always, we need to start with the standard of care analysis and in the context of thinking about known complications. Standard of care is actually an important point because we know from the case law a medical practitioner is required to exercise a degree of skill and knowledge that could reasonably be expected of a normal, prudent practitioner of the same experience and standing. The standard of reasonableness is not a standard of excellence. It doesn't amount to perfection. And the courts have been very adamant about this. And if that was the approach, then it would amount to a guarantee and it's not. The court must determine what is reasonably required to be done or avoided by the defendant in order to meet the standard of care. Obviously a physician's treatment is not to be judged by its result. And then the fortunate outcome does not constitute proof of negligence. This is a tough one for clients, I find, because they say, Look at what happened to me. Look at the damage. There must have been negligence. And we sometimes have to say that's not the case. So. You don't just look at the outcome. The conduct of the physician can't be judged in hindsight, and a physician is not liable for mere error of judgment, which is distinguishable from professional fault. So what is a known complication when reviewing the basic principles of standard of care, what we can and cannot do? It informs us on how we approach the analysis of known complications. Differentiating between medical malpractice and a complication is actually incredible. And in medical malpractice, let's just take the idea of surgery. Surgery is an easy one because. They can lead to prolonged hospitalization, invasive procedures to fix the complication or cause all these changes in functional status. And in the. Some common types of known complications that we've all heard of infections, perforations, cuts to surrounding organs and structures, peripheral nerve injuries, blood clots and hemorrhage. So misuse of known complications is what I want to talk about, because defendants use known complications as a sword and a shield. They argue that because an adverse event is a known complication, it's unavoidable, even with the best possible care. I was reading the Medical Legal Handbook of the CPA. It's publicly available online, and it was last revised February 2022. And on the portion regarding their instructions to physicians as an expert witness on what they should consider and what on how they form their opinions, the CMP I expressly state, and I want to quote this the expert should ask whether the complication or result may have happened to any other physician, even when being reasonably careful. If so, the defendant physician should not be considered to have been in breach of the appropriate duty of care toward the patient. This is an implication, I think, in reading between the lines that no complications are almost automatically unpreventable and the physician should not be on the hook, which is false because the outcome is not just what's being looked at, but the means the doctor took to get there. So if we look at carpal tunnel surgery, it carries the risk of nerve damage. We know that. But if a surgeon cuts a nerve in two, there's a stronger case for negligence versus if the surgeon maybe compress the nerve a bit, it may be considered a known complication. The outcome is still damage to the nerve, but the steps taken to cause the damage is the important analysis on how you prove the negligence. And sometimes I think it's helpful to think of other high location stakes locations, cases, because we have a lot of deference to doctors and health care professionals and they're seen as gods and they're not questioned enough in society and judges and juries alike. So when you look at other vocations, you see that there are standards and that they have to be followed. And if they're not, even if it's a no complication, there might be a finding of negligence. So airlines, there's no risk of equipment failure and it can have catastrophic consequences. However, there's obviously standards of care that are developed to minimize those risks and complications, and that's why they have policies and procedures for pilots or technicians to inspect airplane parts and equipment before takeoff. If they fail to do so, it would be a breach. And even though equipment failure is a known complication, so one of the principal advantages I think of no complication cases is that the standard of care actually requires the surgeon to take reasonable precautions to guard against them so you can reverse engineer it a bit. When a surgeon fails to take the proper preventative precautions and techniques to avoid or minimize the risk, It's medical malpractice if you know it's a possibility. What are you doing to avoid it? And if you haven't taken the steps to avoid it, there's negligence. So some of the strategies to overcome this defense of known complications and you'll hear this over and over again, steps, not outcome. It's the steps that are important. So a good quote that is on the PowerPoint. The court should not use an unfortunate outcome as the parameter of negligence. It's an error to focus on the result rather than the means. That's from O'Neill. And we see that philosophy, that concept really played out in Armstrong versus Ward and in the trial decision, which obviously we always see as Supreme Court and affirmed the dissent of Justice Van Rensburg from the Court of Appeal. Basic facts. We're all pretty familiar with it now. Following a colectomy, the plaintiff required removal of her left kidney. The plaintiff alleges that the physician cause injury by either touching her ureter with the cauterizing device or bringing it too close to the. Based on the expert evidence, the trial judge held that the standard of care for a general surgeon was to identify, protect and avoid close proximity of the cauterizing device to the ureter. The trial judge found that while the physician did take steps to identify and protect it, the judge accepted that the physician came within close proximity to the juror. So the judges trial, the trial judge's standard of care analysis was not based solely on the fact that the aorta was damaged. It was determined what were the steps that a reasonably prudent surgeon was required to take and then identified which steps doctors would fail to take. So the case is helpful in setting out what needs to be explained to the court, specifically the reasonable non negligent surgeon, the steps that they had to take and what failed defendant failed to do. So it's important that you clearly explain to the court that your position is not that the negligence should be found because the injury, rather the steps that were not taken. It's the behavior that's being examined, not just the outcome. And so one of the ways you can do that, obviously, is circumstantial evidence. Remember, plaintiffs can lead circumstantial evidence to draw an inference of negligence. The case law confirms that a plaintiff can discharge the burden through circumstantial evidence that leads to an inference of negligence. This then requires the defendant to offer an explanation to negate the inference of negligence. The courts consistently note that an inference of negligence cannot be drawn merely from the bad outcome. There has to be an explanation provided as to how the injury came to occur, what the steps were that the defendant failed to take to try to avoid the injury. And when courts determine that there's enough circumstantial evidence, they find that usually has the following elements that I've put it on the PowerPoint. The mishap is one that would ordinarily not have occurred without negligence. The injury producing event was in the defendant's control. There is an absence of direct evidence such as the cause of the occurrence is unknown. In O'Neil runoff and runoff. The court held that it is completely incorrect at law, quote, to suggest that direct evidence is superior to circumstantial evidence. So use it in Armstrong. The circumstantial evidence was the nature of the actual injury that was caused. There was no evidence to suggest that a surgeon who actually met the standard of care would be unable to stay two millimeters away from the Earth. Armstrong confirms that a trial judge is entitled to determine what actually happened in order to determine what the requisite standard of care was met. So once the plaintiff has made up the facts of the case of negligence, the defendant must negate the need to succeed. If the defendant produces a reasonable explanation that is at least as consistent with no negligence, this may neutralize the inference of negligence. The strength of the explanation the defendant provided must match the strength of the inference of negligence that was argued by the plaintiff. The explanation has to be grounded in evidence. And it's not just merely speculation. Things that they can just pull out of the air. You need to examine how precisely the injury occurred. If the physician cannot provide an explanation rather than the evidence, this will be very strong support for an inference of negligence based on circumstantial evidence. The court seems to rely on factors such as rarely of the complication the defendants and experts experience with that complication and the medical literature on that complication. So remember this, that examination for discovery. Be sure to thoroughly ask the defendant physician every step dictated in the operative note. Ask about how the complication could occur. Ask them to provide an explanation. Ask them about their experience. About the complication rate. And frame your questions. Think about all the other non negligent causes that could have led to the result. Obviously, based on your research and rule out those non negligent causes. So, for example, patient's anatomy was normal. Was it anything peculiar? That's really where you make your case, obviously, at discovery. Now we want to apply some of these principles that I've spoken about to the case of Butcher versus Cha and how our firm was successful in this action in which Boutcher v. Cha Plaintiff underwent a hysterectomy performed by the defendant gynecologist. The parties agree that the only issue at trial was standard of care, whether injury to Ms. Boutcher's bladder was a result of negligence or misadventure. After seven day trial, just scans held that the defendant breached the standard of care. I'm going to now pass it on to Toby Samson. She's successfully argued the case and her insight on how she reframed the issues from misadventure to negligence, I think is critically important.
Toby: [00:15:07] Thank you, Mahsa. So before I delve into some of the specific techniques and strategies that we used at trial, I want to give you all a little bit of a background about the case and and in particular, how narrow cast the case was, because I think this was a situation where our work was made much easier for us by taking a really critical look at our case and narrowing some of the issues. So as Massa explained, the crux of this case came down to a hysterectomy that our client had undergone, resulting in a vesicovaginal fistula. So the hysterectomy itself, initially there was pleadings that there was failure to obtain informed consent in addition to the procedure being done negligently, such that the fistula, which is basically kind of a hole of communication between, in this case the bladder and the vagina, that's not meant to be there, was there? So before trial, taking a good hard look at all of the evidence, we actually withdrew any of the allegations that informed consent and narrowed it to be just about whether the procedure was done properly. Now, it is often complex to prove informed consent cases, and frankly, you do need some really good contemporaneous notes from a from the patient's perspective to back that up. And we we weren't so sure we were going to be successful on that issue. So we dropped it in favor of the issue that we thought we were going to be successful on and were in fact successful on. Now, other ways we narrowed it, were we actually agreed on the damages in advance and in this case, which very few medical cases unfortunately lend themselves to, we'd actually settled causation. So by the time we were at trial, there was no dispute that the fistula, i.e. the damage, was caused by two sutures having been placed through the bladder. So we didn't have to fight that point at all. But the CMP did get formal instructions to agree that the placement of the sutures was the but for cause of the vesicovaginal fistula. So by the time we arrived at trial, it was very, very easy for us to focus on only the real issue, which is where these sutures being placed a result of a breach of the standard of care, or was this acceptable and just an unfortunate outcome. That is a known complication because as anyone who's done a hysterectomy case will know your injury to the bladder or your enteric injury, all of that are very commonly known and articulated risks of hysterectomy procedures. So it was it was helpful because even though it seems like a or at least to me, it seemed pretty straightforward, we still spent seven full days of trial fighting really just this one single issue. This isn't a case where there were multiple experts on either side. It was very straightforward. We had our client, our expert, the defendant and their expert, and yet we still spend over a full week litigating just this issue. And one of the things that was crucial is certainly how we framed this case, because, as I was saying, certainly bladder injury is a known complication of hysterectomies. And we conceded that. You know, practically speaking, you're not going to win any points with the judge. Clearly, it's a well known complication. So we weren't shying away from that. And because we weren't shying away from that, we were really able to hammer home the analysis. Okay bladder injury is a known bladder injury is a known complication, but you have to ask yourself, how did this known complication arise? And in this case, the answer was two sutures were placed through the bladder. Again, that wasn't a controversial point. What was controversial was the next step in that, which is why is it that these two sutures were placed and this is really where the rubber hits the road when it comes to proving cases that have known complications. Don't look just at what the outcome was, but really focus on the mechanism of injury, the mechanism here being the sutures. But then that that invites you to go to that next step with the standard of care analysis, which really requires to say, you know, what is it that caused this to happen? And was that thing a breach of the standard of care or not? So for us. There were a few kind of important factors that weren't really controversial at the beginning of trial, but by the end of the evidence, clearly, clearly had been very well elucidated. So first of all, Lisa Butcher had normal bladder anatomy, whether or not there's sorry, not just bladder, but pelvic anatomy overall, whether or not there's an issue or atypical anatomy is definitely going to have a bearing on whether the known complication is going to be considered negligent or not. So just for an example, in a situation where a woman's had potentially multiple previous pelvic surgery, so let's say she's had two caesarean sections, something that very, very commonly occurs is adhesions, and they can really distort somebody's anatomy. So in those cases, when you have abnormal anatomy or very, very difficult anatomy to deal with, that is something that can be considered as a non negligent explanation. So here, as a matter of fact and law, it was important that all, all parties conceded that was a normal anatomy. Next, it was proven and again, not heavily disputed that overall her hysterectomy was a very routine procedure. So similarly, part of this is about the search for explanations and reasonable explanations. So if there's something kind of spectacular or unusual that happens during the surgery, it's also, as a matter of logic, kind of understandable that that might lead to a complication occurring. But this was routine. Furthermore, closing the vaginal vault at the end of a hysterectomy is routine for every hysterectomy. So for those of you who don't know, basically a hysterectomy, this was a laparoscopic assisted vaginal hysterectomy and it was total. So they take out your uterus, they take out your cervix, they take out your ovaries and fallopian tubes. And when they take them out, you are left with a hole at the top of the vagina. Now you have to suture that hole. You have to close the hole. And it was during the time that that hole was being closed that the sutures got put through the bladder. And part of the standard of care, as was found in this case, is for the bladder to be moved far enough away so that at the end it doesn't get stitched through. So in this case, we were able to emphasize as a factor that this is a common part of a normal routine procedure. So this isn't something spectacular and extra the surgeon had to go do. This is something that they would expect to do. It's something they've done 1000 times before. And it's a routine part of a routine procedure in a patient with healthy, normal anatomy. So finally, by the end, it was also in evidence. All of the evidence was consistent that the two sutures had been placed at that time by Dr. Cha, and furthermore, that the placement of sutures from the vaginal vault to the bladder is not meant to occur. There was nothing offered to suggest that this was appropriate or a desired outcome or anything that might generally be acceptable, which, again, when you're analyzing, is this a known complication that occurred due to negligence or not, can be an important factor. So with all of those things kind of being either agreed to, conceded or not, very controversial, what we had to show is what was the step that we needed to say was taken differently or needed to be taken differently. And was that step required by the standard of care? So here we had our expert, Dr. George Arnold, who's an obstetrician gynecologist, who explained very clearly that the issue here was that the bladder hadn't been moved enough at the beginning of the procedure. And he explained that every surgeon has a different amount, that they actually want to move the bladder because it all depends on their technique to close that hole. And there's not one uniform way every single surgeon has to do it, but every surgeon is expected to know how much they need to leave at the top. So when they sew with a cough up, they're not going to catch any other structures. And he concluded that in this particular case, that could not have happened. And again, he had to go through by ruling out the other non negligent causes. He had to go through and consider was there abnormal anatomy? Was there something else that had happened here? And this was actually very important that and this is a tip to remember, one of the vulnerabilities of these cases is the defense has always going to argue that there has been a retrospective analysis used by your expert. Right. Because they do know the outcome and that that is part of what they're testifying. She was trying to figure out how this happened. So on the point of him not using the fact of the sutures to prove the negligence, he was very good. He gave a very good response and cross-examination, because if he did just work forward from the presence of sutures without any other consideration, he could be found to have not really fulfilled his duty. So when it was put to him that the breach of the standard of care, his analysis was just based on the finding of sutures at all. He gave this response, which I thought really helped show both that he wasn't using a retrospective analysis, but also helped, I think the judge kind of follow along. So he said, no. We know from the operative report that she could clearly see the bladder. We know from her discovery evidence that there was no abnormal bladder anatomy. We know from her operative report that her visualization was good, which in medical terms translates into normal language. You had a good view of everything. You did not have any difficulty visualizing or seeing what you need to see in order to perform the surgery. So that is Dr. Arnold very clearly indicating the thought process he followed and the sorts of factors that as a surgeon, he would expect might lead to this known complication. And having ruled those out. He did not. He was left with the only reasonable explanation being that it was a failure to mobilize the bladder enough and that that failure was in and of itself a breach of the standard of care. Similarly, on that one kind of subtle point, the standard of care was articulated by Dr. Arnold, as well as by Dr. , who was the defense expert as actually including an element that you ensure the bladder isn't injury, injured, not just that you kind of take some steps for it. The standard of care in this particular case, as articulated at this trial, did include a bit of an outcome, meaning that the bladder would be protected from this sort of harm. It wouldn't mean that any harm that came to the bladder would necessarily be negligent, but the harm coming from the two sutures being placed was going to be found to be negligent. So Dr. Arnold supports our case that there's a breach of the standard of care and that this complication is, in fact, negligent and not merely medical misadventure. And once that happens, as Mahsa is explained, things kind of shift over to the defense to negate that. So the defense evidence was interesting to me because Dr. , given the opportunity, actually described the standard of care as being remarkably similar to what Dr. Arnold had described. So there wasn't actually much disagreement about it. And in fact, when we were doing our closing submissions, we had both filed written materials and Justice Gans as approach was kind of to drill us back and forth on various questions. And Dr. 's articulation of the breach of the standard of care was put to defense counsel who accepted it. And from there I think the judge had a fairly easy task ahead of him to find for us, because she included language that you have the standard of care included ensuring no harm had come to the bladder. So that was helpful, helpful evidence for us. But. In terms of the defense approach to these cases and some of what Mahsa has been talking about, I thought there was some evidence that really illustrated the difference in perspective that Dr. Arnold was taking versus Dr. Herer So I've read to you a bit about where Dr. Arnold was coming from, but Dr. Herer had made references to literature involving sutures. And when that was put to her, her evidence was that she was dealing with the complication of fistula. That is what I was dealing with, not the mechanism specifically just understanding that it exists. And from my perspective, that actually really illustrates kind of the defense approach to these things because they don't want to look at the mechanism, because the mechanism is how a plaintiff can prove that, yes, the outcome itself is a known complication, but not by this way, not in this manner. So when I was reviewing the the notes for writing the closing submissions, I remember that standing out to me quite a bit. So while Dr. Horror hadn't initially focused on what an explanation could be, the truth is she wasn't really able to offer another one. She did agree that Dr. Arnold's explanation could be what could be what happened, but she didn't really proffer her own one on that. Just another kind of quick practice note to recall. Part of why there wasn't further explanation from Dr. Horror was that we had a pretty successful Four Corners objection. In her reports. There wasn't a word said about what actually did happen to make these sutures appear in the blotter. She was completely silent. She just said, it's not a breach. It's a known complication. That's it. And we knew going into it that they would try to get at an explanation because otherwise it was unclear how they intended to really defend this case. So we were quite well prepared with a very strong factum indicating all of the things that we suggested Dr. had given no notice of in her opinion and therefore should be limited from. And we were successful and the ruling went in our favor. So that that is what happened. She was limited, but we got far enough into things to realize that the theory was going to be that the sutures were not placed there, but had migrated. So the the intention of the defense counsel was to spring a brand new theory that I had never heard of. No one on our side had ever heard of this theory before, and it was their intention to lead that a trial. And while for reasons I'll get into in a couple more minutes, I don't think that theory would have carried the day. In any event, it's a really good reminder to make sure that you are always limiting the defense case or the plaintiff's case as it might be making your case as important, but limiting the other cases very important, particularly in these cases. So in this scenario, there expert wasn't really able to offer an alternative explanation. And very importantly, neither was Dr. Cha. So based in her operative report as well as in her testimony, she really emphasized having good visualization throughout. And again, going back to abnormal anatomy or a particularly difficult procedure. Those are things that could be reasonable explanations while I couldn't see very well. So this got nicked. But she actually had emphasized in her evidence how well she could see, and she acknowledged that this was a standard step and that was a standard of care step, and that, yes, it involves the exercise of clinical judgment with respect to how much she leave, but that she she did concede that if she had known that she was stitching through the bladder here, she never would have done it. So she didn't have any other explanation to offer. And that meant that there wasn't really any negating of the inference to be drawn in favor of the plaintiffs. Sure, we didn't have any direct evidence, but it's not surprising there wouldn't be direct evidence on this point, and we did establish that prima facie case. So in terms of other explanations that might come up there, expert wasn't really able to put one forward because she was limited. The defendant didn't have any other explanation. There wasn't anything in the records to assist in terms of there being a normal procedure of normal anatomy. And there were there was really no other evidence. It was suggested that the the evidence of Dr. Cha, with respect to her in variable clinical practice should be evidence as to what actually happened in this situation. But it was not accepted because pretty clearly, if she had followed that practice, this wouldn't have happened. And again, this goes back to them needing to actually prefer an explanation. And that explanation cannot just be theoretical. So when I was talking about Dr. Herer's migrating suture theory earlier, you know, nobody had brought that out and it would have to be made in a strong manner that this is what actually happened here. It wouldn't in my suggestion, and I hope I'd be found to be correct. It wouldn't get over the hump they would have, because we have marshaled strong evidence as to how this only came about due to negligence and simply saying, here's a study that shows sometimes sutures can migrate when that's not even what the defendant says has happened. I did not think would be kind of particularly compelling. So if you are faced in a case where you know, you're being thought about, well, this is how this could have happened, remember that the defense case has to match the strength of the inference to be drawn in favor of your side. So a mere theoretical maybe it happened in this ways are not going to be enough if you have something stronger, like in this case, there was no other real explanation there. Now, I just want to take a couple of moments to cover kind of some pitfalls and just cover a couple of more techniques as to how to kind of approach these cases. And one of the things that can be tough. You can definitely get a judge who is simply sympathetic to it. So if it is a known complication and it was possible that this outcome would have come up no matter what. Sometimes you might find a judge who, especially depending on the degree of the damage, might opt to take a different approach to the analysis or might opt to elevate quality and strength of explanations above what might might be expected. Another thing, just to kind of make sure, because it's a little more subtle than just, oh, there's a breach of the standard of care, You never should have had this harm. You do want to make sure your client understands what's happening. That's always the case. And medical malpractice especially, I think is like a it's like a funhouse mirror version of reality. So I think a lot of times when you have a client who just knows they had the bad outcome and they hear that maybe there were steps that could have been taken, you should ensure that they understand the subtlety here being that the complication could have happened. We have to show why in this case it was negligent and especially about understanding the way the burden of proof kind of shifts over. Still, it is ultimately the plaintiff's case to make out. In terms of assessing the quality of the explanation, because I do think it's fairly rare that you're going to have a case that ends up as straightforward as this one, where there really wasn't any other explanation that was really before the court. The discovery evidence is going to be crucial. So you do want to try to get out at Discovery. What they're going to say. The explanation was there's a good chance it's going to be refused, in which case I remind you always to have. Have another look at your rules, because if they refuse it at discovery, they cannot lead that evidence at trial without leave of the judge. So if you find yourself in a scenario where they've done that, my suggestion would be to prepare in advance a very, very strong objection about how they shouldn't let that evidence in at this juncture if it's going to be coming out for the first time at trial. Whatever explanation is given, you obviously know you're going to need to meet it and frankly beat it, because when there is a known complication, part of the issue is, well, this could have happened to somebody practicing impeccably. So you do want to make sure that you really make sure your experts are able to kind of content with it and your basic cross-examination skills. If there's insufficient records, that's something that can really help you. But if the records are great and they have a strong explanation, you really need to make sure that your expert has ruled out fairly why their explanation shouldn't be accepted. And again, in your cross examination, both of the defendant and the defendant's experts, to the best you can, you want it you want to undermine the strength of that explanation. Again, just a final kind of comment. You do really need your expert to be well prepared on this, both in terms of the retrospective analysis. You want to make sure they're not going to be criticized for that. But you also want to, in an ideal world, have kind of like a like an elevator pitch for why the mechanism of injury was negligent, because that's what they're going to have to keep coming back to. Not is this outcome possible, but why in this particular case, was it negligent? And you want it to be something that's straightforward and easy enough for the judge to really understand, because you often might get a case like this one where Justice Gans was not familiar with the anatomy or with much having to do with hysterectomy. And the trier of fact is always the one who's really going to need to be able to articulate why they're saying the doctor should be held liable in a situation where this could have happened to anyone. And as with all advocacy, you want to make it as easy as possible for them to say yes to you. So if your expert can have a kind of elevator pitch that they can kind of go back to again and again. That is definitely an effective way to make sure that at the end of the day, the judge will be able to find for you and for your client. All right. Those were all of my comments for now. And I know we wanted to leave plenty of time for a Q&A session.
Mahsa: [00:39:40] Okay, so I see a question here. Can you use complication rates of a physician arguing against the defense of no complications? So I think that's a great question, actually. One thing that I think we should be advocating for more in Canada is publishing surgical complication rates in the US. For instance, we have Medicare that publishes complication rates for surgeons performing, I think, one of eight elective surgeries. It's not a lot, but it's not comprehensive. It's published. Complication rates can help demonstrate if a condition arising from the surgery is actually negligent error or from a complication. So if a particular complication rate is known at 1% and then we know the defendant complication rate at, let's say, 3%, it gives us some evidence as to the fact that the procedure may have been done negligently. That comparison allows for that inference to be brought in and published. Complication rates are really useful and I think just kind of needs more transparency. We don't have it as much. So definitely a useful tactic. Great. Okay. So next question is what happens when a non negligent cause can't be ruled out but also is not the most likely?
Toby: [00:41:22] So that's a tough one. That is going to be a lot about competing the weighing evidence. And for that, you're really going to want to set up your case law really, really strongly because in a circumstance, I think you're often going to have a situation where there's not going to be direct evidence from anyone, especially when it's a surgical complication happening at the same time. But you are going to want to make sure that you have all the law on your side emphasizing the need for a real non theoretical, actual explanation from the defendants. And you're really going to want to again, make sure that your explanation is the most likely one. And really you still have to prove it on a balance of probabilities. But when you get into competing explanations where the plaintiff has made out a prima facie case, but then the defense have made out a potential explanation, but it's not the strongest one that is going to go back to your matters of advocacy. And again, you want to search the case law for the factors that they found can matter. So, again, the factors to consider, Right. What is the strength of the defendant's explanation for the injury? And it has to meet the strength of the inference for the plaintiffs. So, again, you want to make sure that if it's an explanation being given based on what they generally do with surgery, just standard, while they don't remember it, we don't know that they did it here. You want to also emphasize this is an important one, the awareness of the risk of the injury, because part of the point here is that if it's a known complication, Right. If you know what can arise despite doing everything as perfectly well, then you're also aware that there's a risk. So in the future case, you know, there's a risk to the bladder because every single time in a hysterectomy, at the end of it, you are stitching up the cuff, which is right next to the bladder. So the more the risk is known and the more the physician is aware of it, the more their overall duty of care requires them to mitigate that risk. So that's another important factor. You want to emphasize, actually, that this risk is well known and that there are steps that are routinely taken during these procedures to prevent that specific risk from materializing. And again, you know how the patient's anatomy is. What you want to try to do is make it as real world as possible. And you want to some extent to really be able to kind of visualize how it is that you're saying this error recurred. So we did spend quite a bit of time at trial really talking through with the experts and also with Dr. Cha. Exactly. At what points could she see? How could she checked the bladder anatomy if there if she's operating inside and what she's dissecting this part of the vagina, by what mechanism is she visualizing it? So you really want to. They make as practical and real world and almost cinematic as possible. The time where you're saying this breach occurred because you want the judge or jury in their mind's eye to actually be able to see why your explanation makes the most sense. And it it can be difficult to do, but you need to really be familiar with the moment and the procedure. You're saying things went wrong. And frankly, if you can make sure that everyone's kind of seeing the same thing you are, that will automatically get you a lot farther than just the kind of more theoretical explanations or you've seen it reported in literature.
Mahsa: [00:45:27] Okay. And I see another question. How can you negate a defendant's explanation?
Toby: [00:45:39] So I'm happy to speak to that. You can. So again, this is going back to a lot of what I've been commenting on about the need for them to have more than just a theoretical explanation. So you want to just in the actual cross examination, you really want to go after, especially if it's kind of an explanation that is maybe something that could have potentially occurred. But the same way that I could win the lottery tomorrow. And if it's one of those you really would want to hammer home potentially by way of other literature, by potentially just if it's a case report, you say, well, this is just a case report. There's never even been a study on it. There hasn't been a study on it because it's so rare. Right. You want to be able to show that it's a weak explanation and that just because it's something that could have happened that way, they haven't actually shown that in this particular case, that is what has happened. So a good kind of way to think about it is you want to take all the kind of generalized explanations and make it again and again. Okay. But in this case, why is that the most likely thing here? And if you have a strong enough case, which hopefully you do by the time you're getting to trial, then bringing it back to the specifics of this particular situation and asking what evidence is there from this particular case that supports that it could have happened, but that actually did happen, is going to be your your best way. So just again, a lot of practical grounding.
Mahsa: [00:47:21] Great. Thanks, Toby. I don't see any other questions. So I think that concludes our presentation. Thank you everyone for joining our webinar today. Mallory.
Mallory: [00:47:42] Yes, absolutely. Thank you so much, Mahsa. I'll just echo Mahsa there and thank everyone for joining us. And thanks to you, Mahsa and Toby, for sharing your insight and expertise. And to the audience again, just keep an eye out for some other upcoming webinars and enjoy the rest of your day. Thank you so much, everybody.
Mahsa: [00:47:59] Thanks, everyone. Take care. Bye bye.