The discipline complaint against Dr. Christo Taylor has received much press attention. In proceedings by the provincial College of Physicians & Surgeons, Dr. Taylor pled guilty to professional incompetence and conduct deserving of sanction.
The complaint was made by the parents of 9 year old Kaylie Wheaton. It was accepted for action by the College, Dr. Taylor’s disciplinary authority, and this week he pled guilty. Restrictions on Dr. Taylor’s practice have been applied.
In March 2011 Kaylie was brought to the Emergency Department at Western Memorial Regional Hospital in Corner Brook, where Dr. Taylor diagnosed her with an upper respiratory tract infection. She died later that day of septicemia, a severe infection of the blood. The death was nearly 100% preventable with timely care.
It is a matter of public record that I acted for the Wheaton family in a wrongful death suit which sought money damages for the death. So how did the guilty plea entered by Dr. Taylor affect the law suit?
Most practicing malpractice lawyers would agree that an event of malpractice by a doctor is rarely accepted by the body which regulates doctors as constituting a discipline offence. When it is, and the charge is incompetence, then a plea or finding of guilty would normally mean that an allegation of negligence in a lawsuit cannot be defended. But that is not the end of the matter.
The plaintiff in every malpractice claim must prove not only negligence, but causation and damages too.
In the wrongful death claim arising out of Kaylie’s tragic death, we have a strong opinion from an expert that the death would have been prevented with timely treatment. Dr. Taylor’s lawyers have not been able to contradict this opinion. Therefore negligence as well as causation is present.
But there is a third element for meritorious and feasible malpractice claim. There must be enough money damages to justify the time, expense and effort involved in prosecuting a civil claim. In a wrongful death case, the amendment passed by the Williams government to the Fatal Accident Act in 2010 now swings the balance. This amendment was made arising out of the notorious failures in breast cancer testing at Eastern Health. The Fatal Accident Act now provides for non-pecuniary general damages for the loss of guidance, care and companionship of the loved one, to be awarded to close family members. These amounts, if one looks at cases elsewhere, can be quite substantial. And rightly so.
I can proudly say that in my role as class counsel to the Breast Cancer Testing Class Action, I had an important hand in this legislative change, which provides for just compensation to the families of those whose loved one died through the fault or negligence of another.
While in my experience, the College rarely accepts complaints against physicians for action. But when it does, the results can decisively help a civil claim.