Lead Article

How Complex Can Complex Matters Get?

It is obviously a rhetorical question. How deep is the ocean, how long is a piece of string, when will the car journey as a child every end?

Causation is a case in point. Quite often, it is relatively easy. A chainsaw through a thigh, an axe in the back of the head, being crushed beneath a steamroller or swallowing a live hand grenade can all be expected to give rise to serious and obvious injuries. Conversely, some patients may suffer with quite serious conditions of essentially unknown cause or aetiology.

I recall examining a woman whose first pregnancy was complicated by quite severe osteoporosis involving one hip. Although she was relatively young, she did have a number of significant comorbidities, some of which could be associated with osteoporosis. Usually however, osteoporosis is of a global nature and not linked specifically with one focus only. She suffered a fracture of the hip near the end of her pregnancy and was subjected to a joint replacement. Complications ensued and the outcome was far from desirable.

Her litigation focussed upon the inadequacy of a diagnosis, the delay in actually making a diagnosis and the delay in instituting a proper therapeutic regimen. The quality of the therapeutic regimen was also questioned.

In the absence of an identifiable cause, it was difficult to subsequently find a breach in the diagnostic or therapeutic processes. Although the outcome was obviously adverse, in the absence of that link between the duty of care and the care that was provided, the claim for negligence was understandably quite elusive.

Measuring impairment can also be extremely difficult. We usually refer to tomes such as the American Medical Association publication entitled “Guides to the Evaluation of Permanent Impairment” (5th Edition) or other similar publications. These guides are no more than that – they are just guides. They often rely heavily upon the measurement of joint movement or lack thereof. These functional observations can vary from day to day or even hour to hour on occasions. On a very good day, a patient may have a permanent impairment of only 4%. On a bad day, that impairment could be three times higher.

The translation of impairment to disability is obviously very difficult and often unwise but such variation can also be witnessed in social, recreational, domestic and remunerative competence. It becomes extremely complex to determine the true state of a plaintiff and to advise the Court accordingly.

The solution to complexities is not avoidance. Instead, it is imperative that all options are considered and enunciated, that a best fit is chosen and that the reasons for choosing that options are explained clearly for all to see and read.

As openness increases and clarity becomes more obvious, so does complexity diminish. It has been my experience that experts who are able to distil complex matters to their essence are of most use to litigants and the Court.