Medical negligence, a less obvious form of malpractice, is at heart of many negligent care cases
When medical professionals harbour biases regarding their patients, this may result in steps being skipped, patients’ concerns being dismissed and appropriate treatment being denied, leading to outcomes such as serious harm and even death, a personal injury lawyer has said.
Alex Sayn-Wittgenstein, a lawyer practising at Sayn-Witt Law Corporation and at Murphy Battista LLP, spoke with Canadian Lawyer’s regarding the potential legal implications of doctors and nurses having stereotypes, biases and presumptions about their patients.
(1) Is there anything that lawyers in Canada should keep in mind when looking at this less obvious form of medical negligence or medical malpractice?
It is helpful to have the typical forms of bias in mind prior to proceeding with examinations for discovery of the defendant health professionals since it can result in areas of questioning that may otherwise be missed.
The CMPA website (national organization that defends doctors) includes a “Common Cognitive Biases” section in their “Good Practice Guide” which provides short descriptions of some forms of bias that arise in a medical setting.
(2) What is the state of the case law, if any, in relation to biased medical treatment claims? How have courts and/or regulators dealt with such claims differently, in comparison to their rulings in medical negligence or medical malpractice cases?
To be clear, medical bias is not distinct from medical negligence claims. Rather, it provides a potential explanation as to why doctors or nurses made a mistake. For instance, it can be helpful in explaining to a judge how it is that multiple doctors made the same mistake. Ultimately, a lawyer still has to establish that substandard care was provided; e.g. wrong diagnosis.
(3) Do you have any other insights relevant to medical malpractice lawyers in Canada?
Cognitive biases are a source for errors made in all professions — everything from aviation pilots to the legal profession. The medical field is somewhat unique given the number of handovers in care (from one doctor or nurse to another) that can occur during a hospital attendance — with handovers increasing the risk of presumptions being made rather than careful re-examination.
A blog post by Sayn-Wittgenstein explained the bandwagon effect, one type of bias that medical professionals may have, which occurs when a patient’s subsequent doctors, without sufficient thought or analysis, adopt the assessment and diagnosis of the earlier doctors. This deference to the initial assessment may cause serious problems if the first doctor was dismissive and sent home the patient without proper treatment, Sayn-Wittgenstein said.
Another type of bias involves so-called “frequent flyers” or patients who make numerous hospital visits for the same seemingly minor problem. While doctors may conclude that such patients are a drain on the system and should be handled swiftly to free up hospital space, this presumption “ignores the fact that most people would prefer to be almost anywhere other than stuck in an ER waiting room,” wrote Sayn-Wittgenstein.
The proper practice identifies return trips to the hospital over a short time, without signs of improvement, as a situation that requires greater caution and as a red-flag warning that the most common and usually least dangerous diagnosis may be incorrect and may be masking a serious problem, Sayn-Wittgenstein added.
Sayn-Wittgenstein noted that, while the medical community has increasingly recognized the risks of such biases and has attempted to educate doctors and nurses, this issue is still a major cause of avoidable injuries.
