Inadequate Medical Care for Women with Endometriosis Must Be Addressed, but Medical Liability Regime Is Not Equipped to Do so

Contributed by Katrina Graham & Kimberly Ren

All in Her Head

Women suffering with endometriosis exit doctors’ offices with the words “it’s just part of being a woman” and “it’s probably psychological” echoing in their minds – too often triggering feelings of hopelessness and isolation.

Endometriosis causes uterine-lining tissue to grow outside the uterus. Symptoms may include chronic pain and infertility. Despite growing attention in medical journals, and policy shifts in Australia and the UK, there remains no standardized approach to its diagnosis in Canada. Given their role as gatekeepers to specialized medical professionals, the following exploration of medical liability focuses on the normative conduct of generalist doctors.

Using the case study of endometriosis inspired by Gross’s NY Times article, we will expose how gender biases predating modern medicine remain the source –and occasionally the justification –for unreasonable delays and misdiagnoses of female illnesses. A survey of the legal struggles that women with endometriosis may face bringing an action for medical malpractice in Canada exposes the inherent gender biases tainting the analyses of fault and causation which bars access to remedies.

(Double) Standard of Care

For centuries, the medical industry regarded male physiology and pathologies as a neutral model, ignoring sex-based differences of organs, and the course and impact of diseases, maintaining gendered gaps in medical research. This has culminated in a formidable imbalance of scientific knowledge and a double standard of care for men and women. 

Physicians routinely misdiagnose endometriosis in women, mistaking its symptoms for reproductive system processes (i.e., menstruations or menopause) or attribute physical symptoms to anxiety or stress– regardless of underlying psychological illness. These erred diagnoses result in delays in testing and diagnosis up to 14x longer than in men. 

While delays are in and of themselves demoralizing for patients, they also permit the worsening of symptoms and the development of related conditions as with the case of certain types of cancers and infertility in patients with endometriosis. These pervasive misconceptions and knowledge gaps sustain an inherent unfairness in medical standards of care and deprive women access to appropriate remedies. 

Norms versus Negligence

In a medical negligence case, fault is determined by asking “what a prudent and diligent physician would have done in the circumstances” and “whether the defendant has breached this standard of care.” This is a hypothetical projection that relies both on practice norms and what would have been reasonable. 

Courts rely on testimony from expert witnesses to determine whether medical conduct amounts to fault. Expert witness physicians are likely to hold similar unconscious biases as their colleagues and fail to discern unreasonable discriminatory treatment. Alternatively, the Supreme Court in ter Neuzen v Korn established that judges can determine whether the conduct is reasonable in place of the expert if the alleged conduct first, isn’t technical and second, is “fraught with obvious risks.” However, as the Supreme Court in Lapointe v Hôpital Le Gardeur confirmed, these requirements are rarely met since courts refrain from interfering in scientific debates where possible to maintain judicial neutrality. Most actions and omissions are thus labeled technical and off limits to judicial scrutiny.  

Despite the fact that the Court in Waldick v Malcolm reiterated that what is normal is not necessarily legally acceptable, flagrant delays and misdiagnoses common to patients with endometriosis remain unlikely to be deemed the fault of the generalist physician. Canadian courts have not yet heard a case based on a claim of medical negligence related to misdiagnosis of endometriosis. Two cases, Hygaard v Gailiunas and Scott v Davies, deal with delayed diagnosis of pelvic inflammatory disease – a distinct disease which shares some of the same symptoms as endometriosis – that led to unnecessary surgeries and pharmaceutical interventions in the former and many prolonged years of pain in the latter. Unfortunately for the patients, the physicians in both cases were deemed to have not breached the standard of care required.

Our current system lacks the checks and balances to prevent the permeation of gender-biases into fault analyses through the expert witness. In practice, this means women are likely to be denied access to remedies for the injuries caused by delays and misdiagnoses. 

Cursed Causation

The causation analysis acts as a further barrier to recovery. Establishing that the physician caused their patient’s injury (i.e., in endometriosis cases, prolonged debilitating pain, cervical cancer, or lost fertility) is an essential element of a successful claim in medical negligence.

In the case of a delayed diagnosis, commonly experienced by endometriosis patients, proving that the injury was caused by the physician is more difficult as they have committed no positive act perturbing the chain of events. In Benhaim v St Germain, the Court confirmed that the patient’s advanced lung cancer was the cause of death and that delay in diagnosis would not have changed that fact. As no Canadian cases have come up that address the issue of causation between a delayed diagnosis of endometriosis and subsequent injuries, similar reasoning to Benhaim could be applied by the courts to future endometriosis patients: the condition itself often leads to pain, infertility or cancer regardless of a diagnosis so a physician who misdiagnoses cannot be said to be the cause of those injuries. 

A lack of scientific understanding of causal relationships between endometriosis and cancers or infertility shields physicians from liability. In Rothwell v Raes and Tuteur de Kay v Ayrshire and Arran Health Board, the courts found that a lack of proof of a scientific link between the administered treatment and the injury prevented a favourable judgement for the patient. Courts may similarly find an unsatisfying medical explanation of injuries in endometriosis cases. 

The medical community’s failure to sufficiently research endometriosis in the past century negatively affects patients’ access to legal remedies but this failure cannot be penalized through the medical negligence scheme. 

A Way Forward

We must look to avenues outside the current medical negligence regime to address the issue of endometriosis patients receiving poor medical care. We propose a three-prong approach.

First, regulatory bodies should impose obligations on research institutions to equitably distribute resources to research on women’s health. This would target the gendered gap of medical knowledge and promote innovations in women’s health thus improving care.

Secondly, education reforms should address the gaps in generalist physicians’ knowledge regarding endometriosis and other women’s health issues. Physicians should be taught to recognize and combat prejudices that lead to ignoring or downplaying women’s self-reported symptoms and foster open and respectful doctor-patient relationships.

Finally, expert witnesses, like practitioners or researchers, should be granted the jurisdiction to testify about biases that underpin the medical standards for diagnosing and treating conditions that affect women. Such testimonies would help the court recognize the influence biases play in both the standard of care and “fraught with obvious risks” analyses.

We believe these changes would reduce cases of improper care and promote equity in the pursuit of legal remedies.

Sincerely,

Two law students with uterine lining 

Kimberly Ren is a Junior Editor of the McGill Journal of Law and Health. She is currently in her second year of the BCL/JD program at McGill University’s Faculty of law. Prior to law school, she completed a Bachelor of Applied Science in Engineering Science with a major in Biomedical Systems Engineering at the University of Toronto. 

Katrina Graham is currently in her third year of the BCL/JD program at McGill University’s Faculty of Law. Prior to beginning law school, she received a B.A. in Cultural Anthropology from Concordia University, where she was awarded the Everett C. Hughes Medal. As of this summer, she will be joining the Norton Rose Fulbright team where she hopes to explore her interests in civil litigation, intellectual property law and corporate law.

‘Duplicative Health Care’ in Canada: When Public and Private Sectors Collide

Contributed by Ian Bernstein

Introduction

Brian Day, an advocate for private health care who runs a Vancouver-based private clinic, is seeking to overturn a 2020 Supreme Court of British Columbia decision, Cambie Surgeries Corporation v. British Columbia (Attorney General), that dismissed his claim against the province. In his claim, Day argued that the British Columbia’s health care system “denies patients the right to timely care”, that “patients have a constitutional right to pay for private care when wait times in the public system are too long,” and that the restriction of “private, for-profit health care” through prohibitions on billing practices violates constitutional rights, namely the right to life, liberty and security of the person and the right to equality as per sections 7 and 15 of the Canadian Charter of Human Rights and Freedoms, respectively. Day filed this claim after being “found guilty of illegally overcharging patients almost half a million dollars in a 30-day period.”

Legislative Framework Prohibiting ‘Duplicative Health Care’ Practices in Canada

The legislation that was being challenged in Day’s lawsuit was articles 14, 17, 18, and 45 of British Columbia’s Medicare Protection Act (MPA) and article 3 of the federal Canada Health Act (CHA). These Acts prohibit health care professionals in the public sector from engaging in certain practices that closely resemble those of privatized health care systems, including directly billing insured patients for medical services that are available in public health plans, as well as billing directly for services that are billed in a provincial plan. In essence, these Acts serve to “protect equitable access to care for all” and to prevent a system of ‘duplicative health care,’ whereby patients are able to receive the same services by a particular practitioner through both public and private health care systems.

Although private payment for services insured by Medicare programs are allowed in provinces like British Columbia and patients can legally be billed privately, health care professionals can only do so if they do not simultaneously provide the same services in public facilities, such as hospitals. Therefore, doctors are prohibited from “billing patients or their insurance companies” in private clinics while also being remunerated by the government for the same services they provide in the public sector.

Other provinces in Canada have similar legislation as the MPA. For example, Nova Scotia enacted the Health Services and Insurance Act in 1989, and Ontario enacted the Health Care Accessibility Act in 1990. These Acts reflect legislative efforts to preserve Canada’s health care system in order to ensure universal access to medical and other services, to prevent creating financial incentives for physicians to practice in the private sector, and to avoid a phenomenon whereby a patient can choose to consult their physician through the private sector as a means to receive “better” care, for example through shorter wait times.

History of Constitutional Challenges Against Regulations on ‘Duplicative Health Care’ Practices

At the core of Day’s constitutional challenge was that it is unconstitutional to prevent patients from accessing private medically necessary health care, including private surgeries, when they are unable to access timely care in the public system. Interestingly, this is not the first constitutional challenge against Canadian public health care legislation. In Allen v. Alberta, the plaintiff claimed that the prohibition on private health care insurance in Alberta, as per section 26 (2) of the Alberta Health Care Insurance Act, is unconstitutional by infringing his right to life, liberty and security of the person protected by section 7 of the Charter, due to long wait times and other delays encountered in the public health care system. The provision at issue prevents insurers from covering health care services covered by a public health care plan.

Although Allen’s claim was dismissed both at trial and on appeal, in Chaoulli v. Quebec (Attorney General), the Supreme Court of Canada found that section 15 of the Health Insurance Act and section 11 of the Hospital Insurance Act violate both section 7 of the Canadian Charter and section 1 of the Quebec Charter, and that neither violation is justified. Notably, the purpose of these statutes is to “promote health care of the highest possible quality for all Quebeckers regardless of their ability to pay” [49]. The plaintiffs claimed that these sections constitute a prohibition on private health insurance that “deprives them of access to health care services that do not come with the wait they face in the public system” [2]. In their reasons, the Court held that “by prohibiting health insurance that would permit ordinary Canadians to access health care…the government is failing to deliver health care in a reasonable manner, thereby increasing the risk of complications and death” [124].


Long wait times is one of the major criticisms of the Canadian health care system. || (Source: CreativeCommons//tswicegood)

Consequences of Unregulated Private Health Care

It may appear advantageous in theory to grant patients unregulated access to both public and private health care systems, however a two-tier health care system warrants some caution. For example, according to Jonathan Penner, a lawyer for the government of British Columbia, “the frail and elderly, patients with complex conditions, and those with severe mental illness and/or substance-use issues would be particularly disadvantaged because regulating a public-private system that could invite American-style insurers would come at a high cost and take money away from public health care.” Moreover, Penner argues that under this type of system, “wait lists for patients requiring palliative care as well as emergency and urgent services” would increase because health care practitioners would be drawn to private clinics, thus enabling them to make money in both public and private systems for the same procedures.

In addition, according to the Canadian Health Coalition, a two-tier system would allow doctors in private clinics to ‘cherry pick’ patients who are willing to pay for treatment and can be treated relatively quickly and easily, with more serious, chronic or complex cases being left for the public system. This system would also increase wait times for most Canadians by removing doctors from the public system and favouring those who pay for care. Lastly, it would enable doctors in the public system to set their own fees in private clinics and private insurers to profit from “publicly-covered care from wealthy citizens ready to pay for care.” It is clear, therefore, that the detriments associated with this type of system are severalfold.


A two-tier health care system may allow insurance companies to profit from publicly covered procedures. || (Source: CreativeCommons//franchiseopportunitiesphotos)

Conclusion: Strengthening Equity in Canadian Health Care

An ideal solution is a health care system that focuses on equity to preserve the principle that all Canadians should receive health care based on what they need, as opposed to what they can pay. As stated by Former Federal Minister of Health Patty Hadju in 2020, “all Canadians deserve universally accessible

health care … Patient charges — whether they take the form of charges at the point of service or payment for private insurance — undermine equity.”

Moreover, in order to prevent the quality of health care in Canada from eroding, measures have been implemented at the provincial level as a means to remedy some of the biggest shortcomings associated with the Canadian health care system. For example, “E-consultations” in Saskatchewan, as well as rural Ontario’s Virtual Triage Assessment Centre both serve to decrease wait times for medical care. However, we remain only at the tip of the iceberg, and more must be done at all levels of government to ensure that Canada’s health care system is truly considered to be an equitable one.

Ian Bernstein is a Senior Online Editor for the McGill Journal of Law and Health, and a third year JD/BCL student at McGill University’s Faculty of Law. Prior to beginning law school, Ian completed an undergraduate degree in psychology and linguistics at McGill. During his undergraduate studies, Ian completed two honours theses, one of them being in the McGill Health Psychology Laboratory, which is where his interest in health law stems from. Ian was also involved in research through having been the recipient of an NSERC Undergraduate Student Research Award in 2017, as well as a Psychology Undergraduate Research Award in 2018.

Is COVID-19 Vaccination in the Best Interest of the Child… or Isn’t it?

Contributed by Alison Braley-Rattai

Introduction

In February, the Ontario Superior Court released a decision, JN v CG, the context for which was a parental dispute over the vaccination of two of the couple’s children, aged 10 and 12, against COVID-19. A third child, aged 14, elected to be vaccinated, a decision that was supported by both parents.

In JN v CG, the judge determined that it was neither in the children’s best interest to order that they be vaccinated against COVID-19, nor to allocate decision-making in this regard to the father, the parent who desired that the children be vaccinated. This case is worthy of examination because it departed significantly from the line of vaccination cases in the context of parental dispute, including those specific to COVID-19 vaccination. In doing so, it announced a possible jurisprudential turn. That turn, however, increasingly appears not to be imminent. To properly contextualize this case, we need to understand how it fits in relation to—and why it departed from—the relevant jurisprudence.

The Best Interest of the Child

Over the past two decades, a line of cases has developed addressing the question of childhood vaccinations in the context of parental dispute following marital breakdown, which I examine in detail here. Very recently, cases particular to COVID-19 vaccination have ballooned. The guiding legal principle in all vaccination cases is the best interest of the child. In the vast majority of such cases, the court has determined that vaccination is in the child’s best interest and has either ordered it, or allocated vaccination decision-making to the parent evincing a desire for their child to be vaccinated. How have courts come to the determination that vaccination is generally in the child’s best interest?

Quality of Evidence

In the majority of pre-COVID vaccination cases, the expert evidence made it relatively easy to determine. Generally, the parent desiring vaccination adduced witness testimony from qualified experts. These invariably testified that, absent any particular contraindication, vaccination was medically preferable to non-vaccination even given the possibility of adverse events. The opposing parent was usually at an evidentiary disadvantage as most of what they presented was readily dismissed as unreliable; expert “credentials were either not-established or non-existent.” For example, comparing the evidence of both parents in a 2015 Ontario case, the judge referred to the anti-vaccination parent and her supporting witnesses as being “locked in a never-ending spiral of blind acceptance of statements by individuals who claim to be experts in the field in which they are not.”

In JN v CG there was a role-reversal in terms of evidentiary quality. In this case, the opposing parent—the mother—was found not to have adduced ‘disinformation’ garnered from rabid, anti-vaxxer internet gurus. Rather, she focused upon the possible adverse events as presented by, among others, the vaccine manufacturer itself—a clearly credible source. Referring to the mother’s evidentiary submissions, the justice opined that while he was “not suggesting that we should presume that the mother’s experts are right, but once we determine that they’re not crackpots and charlatans, how can we presume that they are wrong?” Not only, then, was the quality of the mother’s evidence generally superior to what we had previously seen from the opposing parent, but here the father was deprived of the benefit of the judicial notice that might otherwise have helped him.

Impropriety of Prior Judicial Notice

Judicial notice refers to the adoption of facts by the court which are seen to be so notorious as to evade any serious doubt and for which, therefore, expert testimony need not be adduced. In BCJB v ERRR, the court said that “the case law, read as a whole, reflects the reality [that] there is no debate in the medical community” that vaccines are “safe and effective” and that public policy supports their widespread use. Subsequent courts have, similarly, taken judicial notice of these same facts and included the approved COVID-19 vaccines among those deemed safe and effective; advisories issued by governmental public health organizations have figured prominently. However, the decision in JN v CG appeared to serve as a brake on such judicial notice.

In JN v CG, the court determined that previous vaccination cases had improperly taken judicial notice. Opining that judicial notice had been “hijacked” from a “rule of evidence to a substitute for evidence” the judge, citing positively from RSP v HLC, adopted the view that “judicial notice cannot be taken of expert opinion evidence”, because, by definition, such evidence is just that, an opinion, therefore theoretically capable of credible refutation, and, thus, must be subject to cross-examination before adoption. Had the father produced an expert witness to address the mother’s evidence, that might have been sufficient to tilt the balance differently.

Relevance of Children’s ‘Expressed Views’

Another material difference between the instant case and the vaccination cases generally, regards the expressed views of the children themselves. Importantly, in arriving at a best interest determination the judiciary is directed by statute to consider “the child’s views and preferences” whenever these can “be ascertained” and to give them “due weight” as “the child’s age and maturity” permit.  

In many previous vaccination cases, the courts had declined to hear from the children at all, sometimes because doing so would unfairly “place the child in the middle” of an “intense disagreement between the parents”, which itself was held to be contrary to the child’s interest. In part, the judge in JN v CG distinguished between the instant and previous cases by stating that in “most” of the previous “COVID vaccine” cases the children were younger, thus their views would have been “unascertainable”, or were properly given much less weight than was appropriate here. While the judge overstates the difference in ages of children involved in most other COVID-vaccination cases, it is not obvious that much turns on this.

More relevantly, in previous cases when the children’s views were canvassed, they were generally found to have been sullied by misinformation usually provided by the opposing parent, and therefore considered not truly their own. In this regard, the justice distinguished from these earlier situations stating that, here, the children’s views had “been verified independently by an experienced social worker who would be alive to the possibility of parental influence or interference.”

Final Thoughts

JN v CG turned on a combination of three things that distinguished it from the previous line of cases: that the children’s expressed views against vaccination were, both, considered, and found to be truly their own, that the mother’s evidence establishing the reasonableness of a cautious approach to COVID-19 vaccination was deemed credible, and that the father’s evidence failed to refute that reasonableness, thus failing to establish that the benefit of COVID-19 vaccination outweighed any potential harm, all things considered. Indeed, the father was castigated frequently by the judge for engaging in “personal attacks” against the mother and her views, rather than responding seriously to the legitimate concerns her evidence raised.

The most significant aspect of JN v CG, however, regards the claim that previous courts had improperly taken judicial notice of certain adjudicative facts regarding the safety and efficacy of vaccines. While JN v CG has been referred to as a “groundbreaking decision in family law”, three subsequent cases have put that view in doubt. In one case the court, expressly choosing not to adopt JN v CG’s approach, opined that “parents should rely on government guidance and should have their children vaccinated unless there is a compelling reason not to do so.” Similarly, in a second case, the court agreed that judicial notice regarding the safety and efficacy of vaccines was not determinative, but opined that it should be considered presumptive. Specifically, that court disagreed that Health Canada advisories were a species of expert opinion. Rather, the court expressed its concern that without the ability to take appropriate judicial notice of Health Canada advisories, the court would be left with “whatever random information the parties are able to download from the internet.” And—often self-represented—parties seeking to demonstrate that vaccines are generally safe and effective would face the unnecessary inconvenience and expense of having to demonstrate as much in each case. Moreover, the court was critical that the stance on judicial notice in JN v CG had led to its reliance upon some dubious sources alongside the credible. A third court, simply, dismissed JN v CG’s position as in opposition to the majority of the relevant jurisprudence.

When it emerged, JN v CG announced the possible need for specific guidance from a higher court, given the judiciary’s newfound—but insistent— reliance upon judicial notice in the above-described way. A few weeks later, and JN v CG increasingly appears to be an outlier. Meanwhile, to overcome any uncertainty, offering proper expert testimony capable of addressing the specific concerns of the opposing parent is likely prudent, if not paramount. Given the increased burden of doing so upon parties, however, requiring as much may be suboptimal and, at any rate, no longer appears imminent.

Alison Braley-Rattai is an assistant professor in the Labour Studies Dept. at Brock University in St. Catharines, Ontario. She received her doctoral degree from Western University, and her LLM from Osgoode. Her research interests include labour law and policy, political theory, constitutional law, and children’s rights.