Ontario court rejects appeal, finds no breach of standard of care of family doctor

Patient was diagnosed with Charcot foot, for which she underwent below-the-knee amputation

Ontario court rejects appeal, finds no breach of standard of care of family doctor

The Ontario Court of Appeal has dismissed an appeal of a medical malpractice action, alleging that the trial judge failed to properly assess the expert evidence and find a breach of the standard of care based on ordinary knowledge and common sense.

In Smith v. Kane, 2021 ONCA 634, the appellant patient — who sustained a right ankle injury in 2004 and who intermittently experienced foot pain throughout 2005 and 2006 — slipped, fell on some ice and again injured her ankle in 2007. She consulted the respondent, her family doctor, from 2007 to 2008, during which the doctor ordered x-rays, an ultrasound and a nerve conduction study.

Upon being referred to an orthopaedic surgeon, the patient was diagnosed with Charcot foot, a rare condition that causes a weakening of the foot’s bones, in January 2009. The patient underwent a below-the-knee amputation in March 2009, as this was the only available option by the time of the diagnosis.

The trial court dismissed the appellant patient’s action for medical malpractice against the respondent doctor. Although the trial judge found in the patient’s favour on the issue of causation, he ultimately held that the patient had failed to establish that the doctor breached the standard of care of a family physician in her treatment.

The Court of Appeal for Ontario rejected the grounds of the patient’s appeal of her medical malpractice action. First, the appellate court ruled that the trial judge did not misapprehend the evidence regarding the standard of care, did not commit a palpable and overriding error in assessing the expert evidence, did not overlook aspects of the evidence of the patient’s expert witness and did not ignore a concession by the doctor’s expert witness relating to the standard of care.

According to the appellate court, the trial judge carefully considered the evidence, maintained a firm grasp of the issues, found the evidence of the patient’s expert to be insufficient and reasonably preferred the opinion of the doctor’s expert, who said that, while it would have been reasonable for the doctor to acquire repeat imaging of the patient’s ankle or to have referred the patient to an orthopaedic specialist, the doctor did not breach the standard of care by failing to do such actions, given that there was no evidence of a “bony problem.”

Second, the appellate court said that the trial judge did not err by not relying on “ordinary knowledge and common sense” to find a breach of the standard of care, having reasonably accepted the necessity of expert evidence in deciding whether the doctor had fallen short of the applicable standard of care. Besides, this argument was not raised at trial, so it could not succeed in this appeal, the appellate court added.

Third, the appellate court held that the trial judge did not err in failing to find a breach of the standard of care in the doctor’s failure to diagnose. The court rejected the patient’s submission that the trial judge found that the doctor failed to have a diagnosis at all relevant times. The court also found it unhelpful for the patient to fit this case into medical negligence decisions where the breach of the standard of care was based on a failure to diagnose.

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