Judge upholds ‘pane-in-the-ass’ malpractice suit

Emergency doctor with stethoscope. Stock photo by Getty Images

Is it negligent for a doctor to disregard a patient’s complaint, especially when it turns out to be genuine?

That probably sounds like a no-brainer, but it’s now at the heart of an odd Ontario lawsuit that cuts right to the pivotal question in medical malpractice cases.

This week, a Superior Court judge rejected a doctor’s motion to dismiss the $100,000 malpractice suit against him, and marveled at the doc’s “remarkable” defence.

The circumstances behind Perri v. Toronto Western Hospital began in 2012 when Amanda Perri fell on a glass vase and got shards of glass in her, ahem, bum. In the emergency room, she told Dr. Peter Switakowski that there was glass in the wound, but he didn’t detect any. He cleaned and examined the cuts, stitched her up and sent her home.

Several weeks later, still feeling pain, Perri underwent an ultrasound that indeed revealed bits of glass in her rear.

A plastic surgeon later removed three sizable shards that had cut through muscle, right down to the bone.

Last week, Dr. Switakowski’s lawyers argued to dismiss the suit.

Here’s the sticking point: at the heart of any medical malpractice case is the all-important “standard of care.” If a doctor is found to have breached that standard, you’ve got a case.

Simply put, the standard of care means: what care would a reasonably prudent person in the same position — in this case, an ER doctor — have taken?

See: Medical malpractice

In these suits, both plaintiff and defendant will offer experts to say that they either would or would not have acted the same way.

The defence won the battle of the experts, but still lost the war, so to speak.

Perri’s side got its expert testimony from the plastic surgeon that eventually removed the glass. She’s a qualified doctor, but not a specialist in emergency medicine.

The defence’s side had testimony from a distinguished ER physician who said Dr. Switakowski didn’t breach the standard of care, because it’s not an ER doctor’s job to enlarge and explore wounds looking for foreign objects that a basic inspection didn’t detect. They operate on “clinical evidence,” he said, which comes from inspection of wounds, not what a patient says.

But there’s the problem: what the patient said. Dr. Switakowski admits that Perri said she thought there was glass in the wound. And the judge just couldn’t let that go.

“In my view it would (be) remarkable to suggest that a doctor would disregard what a patient tells him about how she is feeling when trying to diagnose a patient’s condition,” the decision reads.

So the case continues and, either way, the result should provide an interesting new angle to the “standard of care” debate.

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