Duty of Care
To Diagnose
The concept of clinical error is seen most frequently in cases of misdiagnosis.
The clinical judgment defense is used:
A HCP will not be liable for improper diagnosis or treatment resulting from a mere error in judgment, provided that he\she exercised the knowledge, skill and judgment of the average of his group of physicians\nurses when considering the case.
If a doctor makes a wrong diagnosis, this does not mean that there was negligence unless the error was one that no reasonable doctor would have made in the circumstances.
This concept was introduced by Lord Denning:
Wilson v. Swanson [1956] S.C.R. 804 at 812
The defendant, a highly skilled surgeon, performed an operation on the plaintiff, following a tentative diagnosis (made independently by the defendant and others) of cancer. A growth was found in the plaintiff's stomach, and a test made by a pathologist while the plaintiff was still in the operating-room showed that it was probably malignant. The defendant thereupon decided to proceed with the operation rather than postpone it for a further (and more positive) test, which could not be completed in less than 24 hours. Because of his belief that the growth was malignant the defendant removed more of the plain-tiff's organs than he would have done if he had known (as was later established) that it was benign.
"An error of judgment has long been distinguished from an act of unskillfulness or carelessness or due to lack of knowledge. Although universally accepted procedures must be observed, they furnish little or no assistance in resolving such a predicament as faced the surgeon here. In such a situation a decision must be made without delay based on limited known and unknown factors; and the honest and intelligent exercise of judgment has long been recognized as satisfying the professional obligation."
Doctors should be alert to the fact that the initial diagnosis was wrong when patients fail to respond to therapy.
Bergen v Sturgeon General Hospital:
Alberta case where a patient died of a ruptured appendix. She had been admitted 4 days earlier and the diagnosis of pelvic inflammatory disease had been made. The initial misdiagnosis was a "mere error of judgment," but the failure to reconsider the diagnosis when she did not respond to treatment and her health deteriorated was held to be negligent.
