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Mistaken Diagnosis not Negligent

Do I have a medical malpractice

In this medical negligence case the claimant suffered a stroke from an undiagnosed condition which left her with brain damage and paralysis. She sued the pediatric neurologist that started treating her at age 13. She claimed the doctor fell below the standard expected of a reasonably competent Pediatric Neurologist.

However, where a specialist physician follows an accepted or standard practice of her peers, in all but rare exceptions this is adequate to prove adherence to an accepted standard of care. It was on this basis her claim was dismissed (see O’Connor v. Wambera,2018 BCSC 886 para 109). 

Furthermore, in medical malpractice cases, if the evidence establishes more than one recognised and accepted body of medical opinion, a physician is not negligent if they follow only one accepted school of thought (O’Connor v. Wambera,2018 BCSC 886).

Dr. Shevell said that migraine headaches was the correct diagnosis. He felt the advice to return only if there was deterioration or progression in the headache symptoms was appropriate.

Regarding the failure to engage in a differential diagnosis in this case, Dr. Teal wrote:

I did not discuss the possibility of cerebral aneurysms in the differential diagnosis as, again, although aneurysms can present with headaches, the occurrence of chronic headaches over two years would be so atypical for cerebral aneurysm that I would not have considered it as a priority on the list of differential diagnoses for Miss O’C’s headaches.

Dr. Redekop does not include a list of a differential diagnosis or list all the potential causes for a particular symptom. The judge placed greater weight on the views expressed by Drs. Teal and Shevell as to the appropriate differential diagnosis.

In dismissing the medical malpractice claim against the Pediatric Neurologist the judge therefore referred to Agate v. Burrows, at para 115:

In each diagnosis, the exercise of reasonable care, skill and judgment is required. A mistaken diagnosis may not be a negligent one. A mistaken diagnosis becomes a negligent one if the mistake results from a failure to exercise reasonable care, skill and judgment. It can result from the failure to collect necessary factual data through appropriate tests or a patient’s history. However, the obligation to have a further test done is a question of medical judgment to be exercised on the basis of information then available and the possible gain or additional information which might be learned from such a test.(emphasis added)

The doctor’s treatment represented one accepted school of thought and therefore met the requisite standard of care. As the judge pointed out at para 290,

The case before me is a sympathetic one. The plaintiff, a young person with a bright future, has been given very unfortunate circumstances, which have undoubtedly altered the course of her life, not for the better. It is the role of this Court to assess the evidence through unbiased eyes, and to correctly apply the legal principles applicable to this jurisdiction. Unfortunately for the plaintiff in this case, the evidence presented before me, applied to the correct legal principles, is insufficient for a finding of liability against the defendant. Several experts provided evidence for both sides in this case. The experts had differing opinions on many if not all of the issues.

Steps to Take After a Medical Malpractice

Tags: Differential diagnosis, Pediatric Neurologist, Standard of Care

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