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A brain injury is when cell death occurs in the brain, which can affect an individual’s capacity, emotional regulation, and ability to function. From a medical negligence perspective, this is often seen in cases of misdiagnosis or delay in the diagnosis of stroke and birth trauma/obstetrical negligence. When a brain injury has been acquired as a result of medical negligence, financial compensation may be obtainable through a lawsuit if the individual is able to prove that a brain injury has occurred and that it was caused by the alleged negligence.

In medical negligence actions, in addition to proving that the defendants breached the standard of care in the care provided (or lack of care provided), a plaintiff must prove, on a balance of probabilities, that this breach caused the plaintiff’s injuries. If a plaintiff cannot prove that their injuries would have been avoided if the standard of care had been met, then a medical negligence action will not be successful. Causation arguments are often hard-fought battles in medical negligence litigation and may be determinative of whether a plaintiff will be successful.[1]

Brain injury in stroke misdiagnosis and delay in treatment

In cases involving the diagnosis and management of an evolving stroke, available brain imaging will likely be central to the consideration of these issues.[2] A stroke may be ischemic (blood clot blocking blood supply to the brain) or hemorrhagic (rupture of vessels in or around the brain). Whether ischemic or hemorrhagic, a stroke can result in death or permanent disability. The timing of clinical management is vital and urgent, and informed by neuroimaging. CT is often considered the first line for diagnosis, while MRI can be used to obtain more precise information about the mechanism of the stroke.

The underlying mechanism of injury is crucial in the diagnosis and management of stroke. Time is critical in diagnosis and management, described as “time is brain”. Delay in proper stroke care may result in permanent impairment or death.[3] It is not unexpected that delayed diagnosis, or misdiagnosis, of stroke patients may lead to medical negligence litigation given that timing of management is critical for managing outcomes. Neuroimaging can enable clinicians to quickly determine any appropriate treatments for patients, including thrombolytic agents and surgical treatments.[4] Neuroimaging also plays a role in long-term rehabilitation and treatment of stroke patients. Functional imaging advancements have been described as improving understanding for patient recovery.[5]

Neurological imaging in diagnosing brain injuries

Structural neurological imaging aims to visualize the different anatomical structures of the brain, as well as any deformities (tumour, clot, bleeding). This imaging includes magnetic resonance imaging (“MRI”) and computed tomography (“CT”), which can provide evidence of certain physical, cognitive, and emotional deficits through observed area of injury to brain structures demonstrated on the neuroimaging. This imaging can diagnose the affected area of the brain and inform medical decisions. It can also be persuasive advocacy in a lawsuit to provide evidence that is independent from the plaintiff’s testimony of harm and impairment.

Functional neurological imaging aims to assess activity in different parts of the brain. This imaging includes single photon emission computed tomography (“SPECT”) as well as functional magnetic resonance imaging (“fMRI”). SPECT has been shown to be efficacious in understanding cellular viability and ischemia, as well as hemodynamic reserve in cerebrovascular diseases, including stroke.[6]

In addition to assessing brain functioning in stroke patients, SPECT has been described in the literature as a tool for the management of patients with acutely evolving strokes to help identify ischemic stroke, then identify the area of ischemia. It is discussed that SPECT can provide greater accuracy in identifying ischemia than CT or MRI.[7] When performed early, SPECT has been found to provide better predictive information in stroke patients compared to neurological scores, which supports its use for fast decision making for acute therapy in a clinical setting.[8]

The use of the traditional structural neuroimaging of MRI and CT to prove brain injuries has been widely accepted in the courtroom. However, the use of SPECT imaging to diagnose a brain injury has not. In the Ontario Superior Court decision Meade v Hussein[9], the judge held that the Plaintiff had not met the burden of proving that this novel science (using SPECT for diagnosing a minor traumatic brain injury) met the reliability test set out in R. v. J.(-L.)[10].

A recent decision form the Superior Court of Ontario, Wabie v Wilson[11], held that the SPECT imaging was admissible as a “secondary tool” and that “it is not a primary tool for diagnosis. It is a means to review the functionality of the brain. It is to be used in concert with other medical techniques and observational tools”.

The Superior Court of British Columbia, in Bolduc v Stratton[12], held that the SPECT imaging was not necessary to determine whether the Plaintiff had suffered a minor traumatic brain injury as two of her treating physicians had already made that diagnosis prior to the SPECT scan being ordered. The judge held that “the evidence fails to show that the SPECT scan was necessary in light of the other evidence”. Accordingly, the Court did not comment on whether the SPECT technology itself met the reliability test.  The court did note that it was unsure whether the Plaintiff’s expert on SPECT would have been appropriate as that expert did not use SPECT himself for brain injury and “his decision to attach case law to his report suggests that he is an advocate for a particular point of view regarding using SPECT for brain imaging”. 

As SPECT imaging is used more in clinical practice to help identify evolving ischemic stroke to make decisions for management, it is anticipated that it will be used more often as an evidentiary tool to assist with establishing causation and quantifying damages. At present, SPECT imaging evidence is likely best used to bolster or advance existing evidence, such that it is not determinative or duplicative. Careful and considered use of this evidence, in conjunction with the totality of the other evidence in the case, may be beneficial for client advocacy and establishing a foundation in case law for future use.

Proving that a brain injury was caused by medical negligence is a complex medical and legal issue. If you or a family member have experienced a brain injury as a result of an adverse event in the health care system and are considering a medical negligence action, it is important that you contact a lawyer, in a timely fashion, to discuss the specifics of your potential case.

At Siskinds LLP, we have a team of lawyers and staff  with expertise in medical negligence cases and health law, with extensive experience assessing and litigating complex medical negligence cases.

Jill S. McCartney and Kimberly N. Knight are lawyers in Siskinds’ Medical Malpractice and Health Law Group. If you have any questions or would like more information on this topic, please contact Jill at [email protected] or call 877-672-2121.

[1] Wilson v Beck, 2013 ONCA 316, leave to appeal refused 2013 CarswellOnt 15113, [2013] SCCA.

[2] Boyd v. Edington et al, 2014 ONSC 1130 (CanLII).

[3] Kakkar P, Kakkar T, Patankar T, Saha S. Current approaches and advances in the imaging of stroke. Dis Model Mech. 2021;14(12).

[4] He G, Wei L, Lu H, Li Y, Zhao Y, Zhu Y. Advances in imaging acute ischemic stroke: evaluation before thrombectomy. Rev Neurosci. 2021;32(5):495-512; Kakkar P, Kakkar T, Patankar T, Saha S. Current approaches and advances in the imaging of stroke. Dis Model Mech. 2021;14(12).

[5] Havsteen I, Madsen KH, Christensen H, Christensen A, Siebner HR. Diagnostic approach to functional recovery: functional magnetic resonance imaging after stroke. Front Neurol Neurosci. 2013;32:9-25.

[6] Cohen P, et al. The Canadian Association of Nuclear Medicine Guidelines for Brain Perfusion Single Photon Emission Computed Tomography (SPECT). October 2020

[7] Masdeu JC, Brass LM. SPECT imaging of stroke. J Neuroimaging. 1995;5 Suppl 1:S14-S22.

[8] Mahagne MH, David O, Darcourt J, et al. Voxel-based mapping of cortical ischemic damage using Tc 99m L,L-ethyl cysteinate dimer SPECT in acute stroke. J Neuroimaging. 2004;14(1):23-32.

[9] 2021 ONSC 7850

[10] 2000 SCC 51

[11] 2022 ONSC 4296

[12] 2022 BCSC 1168

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