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.
McGill Journal of Law and Health 