Allison Skead started to have headaches and blurred vision in her right eye on or about May 1 2008. It took the medical system approximately 6 weeks to properly diagnose (and treat) the condition as Vogt Koyangi Harada Syndrome. Its etiology is unknown and there is no cure. It is treated with steroids.
Did the approximately six-week ‘delay of diagnosis‘, cause or contribute to loss of vision? The Ontario Superior Court said no.
The plaintiff failed to establish that treatment before the allegedly important date of May 31 2008, would have improved the vision outcome; 554, 585
The defendant’s uveitis expert testified that loss of sight was inevitable regardless of treatment commencement (para 559, 574)
The defendant expert (general ophthalmologist specialist in uveitis) was preferred to the plaintiff’s expert (retinal specialist) to speak about the condition (uveitis) (559, 568)
What to do when the Defence brings the top expert in the field?
The lawyer’s job in medical negligence cases, is to disable the opposing expert. This is done by disputing the foundations of the opinion, the experience of the expert and sometimes by showing that the medical literature seemed to contradict the opposing expert.
In this case (at 573) the defendant expert did not agree with the literature (cited by himself in his report), which literature indicated that early detection improved uveitis outcomes.
note: As an example of the highest caliber of expert capable of disputing statistics in medical journal literature, one could do worse then bring a PhD in epidemiology and bio-statistics. From the point of view of having the credentials to dispute the findings in medical literature, it is hard to think of how better the defendant could have prepared.
note: Whether the defendant expert was correct in his disagreement with the scientific literature was impossible to say because the plaintiff had not brought an equivalent expert to the dispute. The Plaintiff’s retinal expert was not remotely as qualified to speak on scientific literature findings as a uveitis practitioner who was also an expert in evidence-based medicine.
note: When the fight is going to be over what the literature says, it is necessary to bring a literary heavyweight to the courtroom to defend the literature against contradiction by the opposing expert. When only one person in the court room is qualified to speak authoritatively on the literature, that is the only person who can be heard on the literature, regardless whether the literature seems to contradict that expert.
The literature itself is never evidence at trial (unless made so through one of the experts). If the only expert able to speak to the literature disavows it, that is the end of the usefulness of the literature (para 575)
Philosophy note: given the condition in question (VKH syndrome), its rarity, and that there was little in the way of treatment or cure, six weeks from presentation to treatment seems like more than competent speed in Canadian health care. This was for all intents and purposes an unwinnable plaintiff case from the start.
