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A 15 million-dollar case for reforming medical malpractice in Canada


Five years after her life irreversibly changed, Danielle Boyd won her case and received one of the highest medical malpractice payouts in Canadian history.

The agreed-upon facts: Dr. Edington, a rural family physician who also practices anesthesia, obstetrics, and emergency medicine, saw then 24 year-old patient Ms. Boyd in the Hanover ER at a little after ten o’clock in the evening on December 27, 2008. She had a history of high blood pressure and recent severe headaches, and presented with a headache, left-sided numbness, unsteadiness on her feet, intermittent slurring of her speech, nystagmus (involuntary eye movements), and an elevated blood pressure (BP) of 170/112. He had observed her walk into the department and sit on a stretcher.

After an examination and obtaining an unremarkable ECG (a snapshot of the heart’s electrical rhythm), he wrote on her chart his initial three potential explanations for her symptoms – HTN (hypertensive crisis), migraine equivalent, and alcohol intoxication—diagnoses which on their own could explain some but not all of her symptoms. He decided to reduce her blood pressure with medication, and the result was a 37 percent reduction over three hours, landing her BP within normal limits. An ER nurse noted Ms. Boyd was having increasing dizziness and her left arm was becoming weaker around 02:30.

A few hours later Dr. Edington found her general condition to be worsening and her left leg becoming less mobile, and subsequently arranged transfer of her care to the neurology service at London Health Sciences Centre (LHSC), which had imaging capabilities unavailable at the Hanover & District Hospital. Unfortunately for Ms. Boyd and Dr. Edington, imaging revealed a vertebral artery dissection (VAD) as the cause of her symptoms, an uncommon condition with an incidence of 1-1.5 in 100 000. VAD involves a tear in the lining of one of two vertebral arteries which supply blood to structures at the back of the brain.

Despite administration of the anti-coagulant heparin* (reduces the risk of blood clotting) at LHSC after the discovery, Ms. Boyd suffered a stroke to her upper spine and areas of her brainstem later that night which has left her body with incomplete paralysis below the neck. In the context of VAD, strokes can result from artery blockage due to clot formation or extension of the dissection, and the two testifying neuroradiologists could not agree on which of these two causes serial imaging supported best. Whether a clot or dissection extension resulted in the stroke was the case’s fulcrum. The plaintiff argued that a clot meant Dr. Edington was negligent for lowering her BP and not administering heparin. Lowering blood pressure when there is an already tenuous blood supply to the brain, like in a VAD, can precipitate clotting or worsen stroke. The defence argued that a dissection extension meant an unfortunate but expected progression of her VAD, unaffected by Dr. Edington’s decisions.

In his decision, Justice John Sproat favours a clot but wisely states:

[T] here is no scientific test or model which can determine one way or the other whether the clot that caused Ms. Boyd’s stroke would have formed and grown to the size it did if Ms. Boyd’s BP had not been lowered and if heparin was administered earlier.

In an about-face after noting the lack of scientific precision available on this medical issue, Justice Sproat then leaps to certainty where none can be found. Relying on a “but for” approach to causation, where on the balance of probabilities,“but for“ the defendant`s negligent act, the injury would not have occurred, Justice Sproat claims:

I find as a fact that the clot [emphasis added] which caused Ms. Boyd’s stroke was the result of Dr. Edington’s drastic lowering of Ms. Boyd’s BP.

I find as a fact that if Ms. Boyd had been administered heparin approximately eight hours earlier it would have resulted in no, fewer and/or smaller clots.

I am also satisfied on a balance of probabilities that “but for” the delay in the administration of heparin Ms. Boyd would not have suffered a debilitating stroke.

Danielle Boyd was awarded fifteen million dollars in damages.

This sad case illustrates, and I believe perpetuates, many mistruths about medicine held by the public. First, doctors are not omniscient. There is not even a defined body of knowledge common to all doctors; a doctor’s medical knowledge is in flux and entrenched by exposure and experience. Conditions not seen or read of in years may not instantly come to mind. Second, the first glance at a constellation of undifferentiated signs and symptoms often does not immediately indicate one diagnosis but several possibilities, which should include the most common and most dangerous. Doctors are trained that ‘common things are common’ and to ‘think horses, not zebras,’ when they ‘hear hoofbeats.’ The diagnostic process takes place over time as investigations, treatment effects and observed changes in those signs and symptoms rule in and rule out diagnoses. Rarer diagnoses are more seriously considered afterwards when things don’t fit. There can be harm in chasing a dangerous zebra which must be weighed. If a 9 year-old with headaches but no major red flag symptoms gets a brain CT scan in the ER ‘to be safe’ and a brain tumour is found thirty years later, the ER doctor might be held liable for the ‘unnecessary’ scan because the early radiation may have had a role. Third, some things in medicine can be known with certainty, more things cannot. Fourth, the standard for doctors is not perfection. It is instead what an average, reasonable, and very human doctor would do. With this case’s result, the public will continue to expect omniscient, perfect doctors with all the answers.

Justice Sproat’s reasoning is evidence for Canada’s need to reform the way we arrive at the decision to punish or absolve doctors and reward or deny compensation to patients when patients experience adverse outcomes in our medical system.

Justice Sproat clearly possesses an exceptional mind, rationally navigating some of the medical evidence impressively. But Justice Sproat is not medically trained, and medicine is extremely nuanced. Medical questions cannot always be solved by deductive logic. Deductive logic once led doctors to regularly administer the anti-arrhythmic lidocaine post-heart attack to prevent the known risk of fatal arrhythmias. Trials later showed this practice might increase, not decrease, mortality. Justice Sproat was somehow able to deduce that a clot caused Ms. Boyd’s stroke when two experts in the field had spent hours reviewing the images and could not agree on the cause. I fail to follow the logic.

In his decision, three of the four defense expert witnesses were accused of “partiality” and “advocacy” in their answers to key points of contention in the trial, and Justice Sproat makes clear that this is a significant reason why he “much prefer[s] the evidence of…the plaintiffs’ witnesses in general, to the defendant’s witnesses. ”†

 An example of these transgressions:

Dr. Silver was asked if horizontal nystagmus should prompt a call to a neurologist. He responded stating that Ms. Boyd had been drinking and that alcohol can cause nystagmus. This is another example of losing focus on Ms. Boyd.

Is Dr. Silver betraying a bias or answering the spirit of the question? Doctors are not legally trained, and departing from the court`s expectations of the delivery of an expert opinion can seriously decrease the weight of true and relevant evidence. Should the process of law influence the choice of one scientific opinion over another when a disease’s evolution is the crux of the case? In non-criminal malpractice matters, does colliding law with medicine reliably lead to justice?

We have a major problem when suing a physician is the only way for the young uninsured to secure a future when the unthinkable happens. Not only did Justice Sproat have the unenviable duty of choosing a side in a debate of medical pathophysiology, he was tasked with determining whether a young woman left with significant disability would receive fifteen million dollars or nothing. There are other ways. In 1988, the U.S. Department of Health and Human Services creatively responded to the dilemma of vaccine manufacturers dropping out of the business of producing life-saving vaccinations due to soaring legal costs of defending cases of extremely rare side effects. The National Vaccine Injury Compensation Program receives a tax of 75 cents per vaccine dose from manufacturers, which is tapped according to a formula to compensate claimants who have suffered an established but uncommon unfortunate event.  Claimants have the option of rejecting the offer and going to court. The no-fault program averted a disastrous vaccine shortage, freed up dockets, and has since been imitated by other nations.

The discussion of alternative dispute resolution (ADR) in Canadian medical malpractice cases needs more traction. The Canadian Medical Protective Association (CMPA) receives annual membership fees from physicians, and when physician members lose malpractice cases, it pays the legal fees and damages. Despite a decrease in the number of legal cases against Canadian doctors in recent years, the CMPA reported rising damages payouts totalling 248 million dollars in 2012. Studies suggest that mediation (non-binding decisions), arbitration (binding decisions), and pretrial screenings can reduce cost, drastically decrease time-to-decision, and increase satisfaction—up to 90% of patients and physicians are satisfied with the outcomes of mediation. Mediation is supervised negotiation, and relaxes the often fiercely adversarial stance of patients and physicians fomented in the courtroom. The panels of these various ADR methods can include physicians, lawyers, and civilians.

From a physician standpoint, none of the existing ADR solutions are perfect, and conjuring up one without major flaws is difficult. Even though a ‘Supreme Court’ setup of nine physicians rearranged according to case needs would be ideal for an informed decision when there is medical uncertainty, it would be wrought with many foreseeable problems not limited to physician-bias.

From a patient standpoint, many malpractice cases heard in Canadian courts have already failed mediation because patients were unsatisfied with mediation’s results. If future income lost to unexpected disability plus anticipated care costs are a young patient’s goal, it is unlikely that negotiations between the patient and physician will produce the patient’s desired yield if the physician does not feel he or she erred. Like the American vaccination dilemma of the 1980s, this scenario likely requires a creative, government-level solution. In his article The Malpractice Mess, Dr. Atul Gawande describes a no-fault program in New Zealand that provides future income lost and care costs to victims of rare or severely disabling medical injuries who qualify. He points out that the payouts have to be more modest as no country could sustain such a program if they were not, but both patients and the public seem satisfied.

I sincerely hope fifteen million dollars gets Danielle Boyd a lifetime of the best possible care. I hope it provides her opportunities for moments of deep joy like ones she might have known before December 2008.  In a world where money is meaning, Danielle Boyd deserves fifteen million dollars. I only find it unjust when I imagine what it cost Dr. Edington.

Ryan Van Meer is a family medicine resident.

*The testifying neurologists acknowledged that the most recent American Stroke Association and the Canadian Stroke Guidelines do not recommend using heparin to treat acute ischemic stroke, but claimed that in unique situations it may be appropriate. Interestingly, Ms. Boyd’s VAD extended intracranially, putting her at increased risk for subarachnoid hemorrhage when heparin was administered, an outcome which did not occur (see Boyd et al. v. Edington, 2014 ONSC 1130 paragraphs 176, 199, 227)

†See also paragraphs 74, 84, 221, 236 in Boyd et al. v. Edington, 2014 ONSC 1130

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21 comments

  1. David Burns

    This is very concerning. I agree that patients need strong advocacy in the setting of terrible complications such as happened to Danielle Boyd. However, how can justice Sprout be expected to rule on whether medical malpractice/negligence occurred without medical training?

    The comments he made on the impact of the anti-hypertensives on reducing cranial blood flow and causing/propagating clot seem conjectural, probably wrong, and far outside the scope of his training. If these arguments form the basis of his ruling, I question its validity. His comment on 1-2 alcoholic beverages being unlikely to account for her presentation, does seem more appropriate.

  2. Shawn Whatley

    Shocking. I hope many read your excellent article, Ryan. Thank you for taking the time to research and write it!

    A senior colleague told me as I agonized through my first law suit, “It’s all about money. It has nothing to do with whether or not you are a good doctor. It’s all about money changing hands. Try to not let it destroy you.” While I appreciated that advice, law suits by drunk patients who seem oh-so-reasonable and unjustly victimized by you when they sober up still irrevocably change your career. The public will never understand that.

    As a resident, you should check out my latest post on physician income. It might shape some of your career decisions: http://shawnwhatley.com/income-life-time-earnings/

    Thanks again!

    Shawn

    http://www.shawnwhatley.com

  3. RayRoy

    Firstly, I am saddened to hear Ms. Boyd suffered such a poor outcome at such a young age. Bad luck and bad outcomes are a part of life. I worked as a rural physician for a few years and was even involved in a medicolegal case (rare presentation of a traumatic spinal injury where there was a delay in the transfer of the patient). I remember my lawyer telling me that we are judged, not on whether or not we got the diagnosis right, but whether our actions would be similar to what the average, competent rural physician would do in similar circumstances. As Dr. Van Meer stated, physicians are not omniscient. As a rural physician, we do the best we can with limited resources and limited help. In the rural setting, we also have to take into consideration other things such as “Am I concerned enough that this lady has some neurological event that I should arrange a 2.5 hour nighttime ambulance transfer or is it more probable that we are dealing with a case of essential hypertension in an intoxicated young lady?” I feel Justice Sproat did not take any of the above points into consideration and erred in his decision.

    A decision likes this sets a standard that no physician can attain, ie. perfection. It will force a more investigational/interventional approach to medicine similar to the CYA (Cover Your Ass) approach that is common in the US. It may even decrease the number of physicians willing to work in rural communities. It will certainly increase the number of lawsuits in bad luck/bad outcome situations…eg. Why did my physician not immediately order an ultrasound for my vague abdominal symptoms? My ovarian cancer may have been diagnosed a few weeks earlier! We may soon hear another judge say “…’but for’ the delay in diagnosis of this ovarian cancer, Ms. X would have been a stage IC instead of a stage IIA.”

    Going through a medicolegal case is hell. My sympathies to Dr. Edington and I hope there is still some joy in medicine for him.

    Bad decisions like this can have a snowball effect. Hopefully, the CMPA is appealing the decision.

  4. John A. Tamming

    Ryan, a very expansive and helpful review.

    I agree that we need an ADR model, no fault in nature, which compensates those who are catastrophically injured by alleged medical error.

    That said, I don’t view this result as an attempt to “punish” the good physician, as you suggest. CMPA funds payments, not physicians The vast majority of med mal cases go nowhere, as I am sure your research has shown you and those that result in an adverse finding against a Dr. and survive appeal are not common.

    Sproat J. is considered an excellent jurist. He was presented with compelling plaintiff expert opinions that he accepted (and when a defence expert cannot answer straight questions and rambles all over the place without even admitting the obvious in places, that can ground a charge of advocacy). Further, I don’t consider it unjust for him to find a Dr. negligent who jumped to conclusions, who failed to cast a broad enough differential diagnosis, who chose to sleep at an inopportune time and who was not overworked in any sense of the word at what was a very sleepy evening at a very slow rural hospital.

    Excellent website and I urge you to keep it up.

    John Tamming

    • Moira furlong

      Absolutely right. Physicians think pts should just suck it up when they screw up…. & that happens way to often & they just walk away…. no remorse

  5. Rachelle

    I only wish it was a happy ending in my mother’s case.
    She complained for five years to doctors about recurring severe headaches and nausea.
    Ultimately it was an optometrist who discovered a brain tumor upon an eye exam, grade 3 astrocytoma (malignant) I was 7, my brother 4, and my sister 11 months.
    By that time her tumor had grown from the size of a dime to the size of a grapefruit and had to be surgically removed along with a lot of healthy brain tissue.
    A year later she had a stroke and was in a coma for nine months.
    I can’t stress the amount of shock I had upon seeing her when she came home, she was a different person. I suffer from clinical depression to this day and my brother has PTSD.
    There was a medical negligence case for my mother in the 1980’s when this happened, but for some reason I’m not sure of the case was thrown out of court.
    But I know the Canadian Medical Protection Association protects doctors vigorously and it is very rare to win a case, especially any compensation. My grandmother recently died and we discovered a suitcase full of my mother’s paperwork-doctor’s visits that blamed the pain she had on bad teeth and other various things, her journals from hospital stays, all kinds of stuff. I think I’m going to write a book, maybe I can get some closure to all this……

  6. beth tubbe

    Reading cases like this one makes me as a health professional worried to go to work. I think a valid point is made early on, doctors, nurses and other HCP are human and human body is complex. While my deepest sympathies go out to the young lady who suffered from the misdiagnosis I can’t help but feel that the doctor in this case did what his experience, knowledge and practice taught him best. I agree there needs to be a way to help the patients but also supports and not villionizes the practioners.

  7. Anonymous Ontario Citizen

    I really do think that there needs to be equal legal representation in court for patients, the idea that one side of a court battle gets funding and the other not is disgusting and insults both physicians and patients alike. A legal system where there were no prosecutors or if there were no court-appointed defense would be a laughing stock, yet for some reason our government sees no problem with this approach to malpractice.

    As it is I’d pretty much have to have video proof of surgeons acting extremely erratically go viral on YouTube to even open a slight admission of wrongdoing. Our quantity over quality approach is vastly disproportionate to our population size and doctors face pressure to dismiss everything they possibly can until patients are literally on the verge of death. It’s as if our health care professionals think of the government as being their clients rather than actual patients and it shows.

    You may think I’m being overly harsh, but I genuinely think average doctors are unaware of the ease of quietly sweeping things under the rug can be, particularly when prescription drugs are involved since those are privately funded and therefore have more glaring financial damage done. I know my cousin in law’s sudden passing due to “unknown” circumstances caused my cousin to be harassed by police and accused of murdering her until her autopsy came back… with no apparent cause of death. No further investigation was ever done, and the only thing we ever had to suspect was that something had gone horribly wrong with the new medication she was taking (for a condition that autopsy ruled out as contributing factor). We obviously suspected a cover up, but my cousin was told a lawsuit with such (deliberately) vague evidence for a dead victim would never survive the sheer amount of money the CMPA could throw at it, which would give ample time for any wrongdoers to completely cover their tracks and alter evidence (which would be very likely if they could convince police to drop the case).

    Any medical system that allows organizations to literally profit by making people pay for what turns out to be poison and then has no qualms about covering it up is utterly shameful and any doctors cowardly enough to suppress evidence of manslaughter deserve nothing but scorn. Doctors face no consequences for slacking off and systematic laziness and it truly does feel like nobody is concerned about the potential for abuse. Negligent conditions like these is what allowed the likes of Harold Shipman to go unnoticed in Britain, and it would not surprise me in the slightest if there’s an even worse monster than he active at this very moment somewhere in this country, and they probably wouldn’t even need to be restricted to the elderly to avoid detection.

  8. susan parkinson

    what a shame I have lost 50 per cent use of my left arm and no lawyer will talk to me without money
    this was due to a medical malpractice

    • JOHN

      my father was allegedly killed by a nurse “wettlaufer” which is a public case…..and the joke will be on us when she declares not guilty or insanity ….
      I have come to realize that doctors, lawyers, drug companies, government, all have their ass covered and we are mere numbers, files and experiments…..
      Money is everything…..how sad…..
      NOBODY CARES ANYMORE….Ontario is the WORST province for this! Ive travelled across canada and the USA and ontario is a third world province……there ARE TONS of medical malpractice happening…TONS.

  9. Janice Gilners

    This is definitely a 15 million dollar case which cries out for reform of the system. Hopefully the doctor can continue to provide competent, ethical care. We need to know that lawsuits are just a game and nothing more. The truth doesn’t matter; just the perception of the truth. We also need to know that the vast majority of cases are dismissed, causing additional unnecessary physical, mental, emotional and/or financial harm for the patient.

  10. mary-lou patey

    My son died as a result of criminal medical negligence and this was totally ignored by the College. he was presented with blood work results clearing showing his ammonia levels rising (from 18 – 100) in a matter of a few hours and still “medically cleared” him. He did not follow protocol and because of this my son ended up just 8 hours later being restrained chemically and physically for over 4 days. During the eight hours after his being “medically cleared” he was prescribed a drug by two different doctors that shows in his history just hours before as being told not to prescribe. This tells me just how careless doctors are and how many do not bother to read a patient’s history. As a result of being restrained for over 4 days he developed a DVT (blood clot) and after being prematurely released from ICU died from a pulmonary embolism just 1/2 hour later before my eyes. I should mention that he had many of the signs of this but was totally ignored by the doctor. The fact remains that if the first doctor had done what he should have and followed protocol and not medically cleared him my son would most certainly not have died. I have learned over the past four years just how corrupt our system is when it comes to getting any accountability. What happened to my son was NOT human error. This doctor knew full well the danger he was putting my son in. Doctors are very well protected by the College, the hospitals, the CMPA and our government who puts a cap on your life. I was told by many lawyers my son was worth maybe $35000. and it would cost far more than this just to get to court. I will never forgive the doctor who treated my son so carelessly and disregarded the medical evidence (blood work). He should be charged with criminal negligence. He was given a “Letter of Caution” from the college which to me is a slap on the wrist. The college tried to say it had nothing to do with what happened afterward when in fact it had everything to do with it. They twist and ignore the facts to suit themselves. My point is if doctors knew they would be held accountable for certain things then there would be a lot more care taken and a whole lot less mistakes being made. http://www.justiceforjosh.com

    • Gerald Dixon John Cummings

      From my experiences with terrible physicians, and the help I received from the College of Physicians & Surgeons of Ontario was…ZERO.

  11. Ira Gordon Meyer

    From my understanding it can be rather difficult to put a dollar figure on a Medical Malpractice civil lawsuit but I feel I need to go through this too and would like to know as many previous case dollar figure’s as possible to try to compare with everything I have had to go through and everything that has been lost. Everybody out there that help’s me in my journey of getting legal representation and eventually recovering damage’s will be blessed with whatever help I can possibly give them.

  12. Troy

    I just happen to n a person that got royally screwed by the doctors…..if I can call them that……can I get back to me and help me…….

  13. Ramona Harris

    I had a heart attack while taking chantix I tryed to talk to someone ar the company and got no results . My name is Ramona Harris. My phone number is 2157271582

  14. Gerald Dixon John Cummings

    WOW!!! Too bad the cop lied about my car accident in 1977. Why would a policeman lie about such a tragedy? I’m not sure, maybe because I was 17 years old, had long hair and smoked the evil weed. I suppose I deserved nothing, after all, I’m a pothead.

  15. Moira furlong

    Well there is way too much hallway medicine today. No profession is perfectly clear but pts should be able to expect competent nonjudgmental care. Ms Boyd did not.
    Malpractice should go to court not mediation or arbitration…. time wasters

  16. L Willz

    It is truly heartbreaking to know that we are mere experiments and numbers. Do they even consider the emotional pain and trauma we go through for the rest of our lives. My son is only ten years old and has been suffering from the birth until now. Diagnosed with a rare disease called Vacteryl Association which I believe is the result of a medication during my pregnancy. Due to this my son was born with all types of malformations of the heart, kidneys, intestines, anus, tracheas and so much more. He underwent his first surgery within 24hrs after birth and has since gone through 5 major surgeries within the first 3yrs of his little life plus so many minor ones too numerous to note here. Until now he suffers severe problems with urinary and faecal incontinene and lives with being bullied at school for something that’s not his fault. The pain is overwhelming knowing that there’s someone out there who should be held accountable for her actions. We filed a complaint at the hospital and with the Quebec med association of doctors. We filed a medical malpractice lawsuit. As a single parent living with a child with extensive medical problems I’ve exhausted all my options only to hear that the timeframe has expired. Until now, 10yrs later due to this our lives are not the same. I couldn’t work or study to during 7yrs, we lived in pain and misery helpless in and out of hospital rooms, surgery after surgery.I hurt each time I see my son go through so much pain. It’s hard living with the pain especially how much we struggle financially and emotionally due to someone’s negligence. I often feel forgotten like we do not matter while struggling in silence every day besides he is my only child. I empathize with everyone who goes through something like this. It’s a mother’s worst nightmare. The system has failed us terrible and we suffer alone. Up to this point Just 3 yrs now after being my son’s primary care giver, I found the strength to go back to school for a college diploma. I recently graduated but still can’t find work as I’m inexperienced after being a stay at home mom for so long caring for my son. When will the vicious cycle of poverty end? I’m hopeless, yet thankful to be alive but I feel the pain for my little boy everyday. If someone is reading… help. I would like to know if after 10yrs if there are other options to fight med mal practice in QC? I don’t know what else to do.

  17. Mariane

    May i get the lawyer contact’s info who worked out for Ms Boyd, i have a malpractice issue.

  18. Ann Glover

    Can I also have the lawyer contact information for the boyd case. I would also like to discuss an LVAD case for my husband who has recently passed.

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