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:
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