We generally rely on professionals in their respective fields to guide us through serious situations which are of great importance to our lives; the police to protect us, schools to educate us and doctors to help us be mindful of our health. But what happens when one of these fails us?
It is severely and negatively impactful if the care that is provided to us is negligent, and this is the foundation for most civil tortuous cases. Below we take a look at a medical negligence case in which an undetected brain tumor led to further serious injury.
The appellant, Ms. Polera, was thirty-six in October of 2004 when she suffered some hearing loss in her right ear and sought medical care for the issue. She was fitted for a hearing aid and as part of the testing was ordered to undergo an MRI procedure by an ENT doctor (Ear Nose and Throat).
After reviewing the MRI results when they were made available, the ENT (the defendant in this case) unfortunately did not notice the existence of a growing brain tumour.
When her condition grew worse in January of 2007, she went back to her ENT in June of 2007. Another MRI procedure was completed in September of 2007 and it was then that it was discovered that there was a growing brain tumor and he arranged for the necessary treatment of the now very large tumor. The surgery was done in November of 2007 and has left the plaintiff in her current state of debilitation (serious and likely permanent damage).
The ENT in this case accepted that there was a failure in standard of care that he showed to Ms. Polera when he didn’t detect the tumor initially. He did assert however, that she missed some scheduled follow-up appointments that could have increased the chance of earlier detection.
The plaintiff sought a partial summary judgement for allocating liability to the ENT; she requested a list of the breach in care procedures by the defendant as well as another for the resulting injuries that arose from these actions or lack thereof. She also sought to dismiss the request of a trial by the defendant to determine contributory negligence as she believes there was none on her part.
The plaintiff supplied three experts in the appropriate fields to provide testimony which all concluded that her current injuries would have been minimized if the tumor had been detected in the initial MRI and henceforth removed earlier. Her hearing loss would have remained minimal and there would have probably been little to no permanent disability and damage.
The defence did not challenge the plaintiff’s expert witnesses but did provide one of their own who testified that the patient would have lost complete hearing in her right ear anyway and that he could not detect any resulting cognitive deficits.
Ms. Polera felt that these two issues should be addressed and resolved at trial.
The Judge after weighing the evidence accepted that the ENT did lapse in the standard of care that he provided for Ms Polera and granted her request for a listing of the thereafter injuries which would be presented at trial.
The defence asserted that the issue of contributory negligence should be addressed at trial. The defendant believes that his patient’s inability to keep certain appointments further delayed the entire process and that she should be held responsible to a certain degree for her current physical state.
The plaintiff contended that she did not exacerbate her injuries in any way. She believes that there was no mention or indication of an emergency or life threatening issue relayed to her and that contributory negligence should be summarily decided upon and not up for discussion and resolution at trial.
Contributory negligence pertains to a plaintiff’s conduct surrounding their injury and it speaks to the collective negligence of a plaintiff and defendant. The primary tort may not always be the initial injury but one that was exacerbated by the actions of another in which negligence and injury were increased.
Upon examination of the applicable law surrounding contributory negligence, the Judge felt that the plaintiff did all that was required of her to address her initial ailments. She was forth-coming about her symptoms and followed the suggestions of the medical professionals at the time (the hearing aid). There was nothing to suggest that her follow-up appointment for her hearing aid was importantly necessary in any manner and no information was properly relayed to her considering any emergency appointment by her physician. Her loss of hearing in her mind pointed to a faulty hearing aid piece and not anything more serious. When she was able, she reached out to rectify the situation which unbeknownst to her was worse than she expected (based on the medical information that was initially given to her).
The defence’s request for a trial to ascertain contributory negligence was dismissed.
There are many facets to proving medical negligence, and it is a lengthy and intricate task that will determine the compensation for your injuries. It is very important that you seek legal representation from experienced personal injury lawyers in your area.
At Rastin & Associates, our goal is to provide a professional and compassionate service to all of our clients. Call us today or visit us online and schedule a free initial consultation at your earliest convenience.