In June 2018, Paul Cahill settled a wrongful death claim arising from the death of a 50-year-old man from hepatocellular carcinoma. The deceased was a lifelong carrier of chronic hepatitis B. He was at substantially elevated risk of liver cancer for that reason, and the standard of care required his family physician to ensure that he received regular surveillance imaging and laboratory work designed to detect liver cancer early, when it remained treatable. The surveillance did not occur. By the time the cancer was diagnosed, it had progressed beyond curative treatment. The patient died, leaving behind a wife and young children. The civil claim was advanced against the family physician on behalf of the estate and the surviving family members under the Family Law Act.
The settlement of this claim, like all settlements in medical malpractice cases, was reached without admission of liability and without a trial. The terms of the settlement are confidential. But the medical and legal pattern is one that recurs in the practice, and the public-interest value of the case is in the warning that pattern carries. Family physicians caring for chronic hepatitis B carriers have a recognized duty to ensure that those patients are placed into a structured surveillance program for hepatocellular carcinoma. When that surveillance does not happen and the patient develops a fatal cancer that earlier surveillance would more probably than not have detected at a treatable stage, the family physician’s omission can support a civil claim.
This post explains the clinical context, the standard of care as it was understood at the time of the events, the legal framework for evaluating such a claim, and the considerations that shaped this particular settlement.
The clinical context
Chronic hepatitis B virus (HBV) infection is one of the strongest known risk factors for hepatocellular carcinoma. The Canadian and international medical literature places the risk at roughly twenty times the rate of HCC seen in the general population. Globally, chronic HBV accounts for a substantial share of all liver cancer diagnoses, with contemporary reviews placing the figure between 44 and 55 percent worldwide.
Not every chronic HBV carrier is at the same level of risk. Cirrhosis multiplies risk further. Demographic factors matter as well, particularly age, sex, and region of origin. The Canadian Association for the Study of the Liver (CASL) recommends regular HCC surveillance for chronic HBV carriers in several defined groups, including Asian male carriers from age 40, Asian female carriers from age 50, carriers of African descent from age 20, and anyone with a family history of HCC. These recommendations were in place at the time of the events in this case and are summarized in the open-access review published by the Journal of the Canadian Association of Gastroenterology, linked above.
For patients who fall within these surveillance criteria, the recommended program is straightforward. The American Association for the Study of Liver Diseases (AASLD) practice guidelines, which Canadian hepatologists generally follow, recommend abdominal ultrasound every six months, with or without a concurrent serum alpha-fetoprotein (AFP) blood test. The surveillance interval is dictated by the doubling time of typical HCC tumours. Six months is the period within which a small, curable lesion is unlikely to grow into one that cannot be resected, transplanted, or ablated.
When surveillance is in place and an HCC is detected at an early stage, treatment options include surgical resection, liver transplantation, and locoregional therapies such as radiofrequency ablation or transarterial chemoembolization. The five-year survival rate for HCC detected at this stage exceeds 70 percent in many published series. When HCC is detected at an advanced stage, after symptoms such as weight loss, jaundice, or abdominal pain bring the patient to medical attention, curative options are typically off the table. Median survival for unscreened, symptomatic, advanced HCC is measured in months.
The patient and the gap in surveillance
The patient was 50 years old at the time of his death. He had been a known chronic carrier of hepatitis B for many years and had a long-standing relationship with his family physician. His clinical risk profile placed him squarely within the population for whom the standard of care required regular HCC surveillance: chronic HBV, an age above the surveillance threshold, and demographic factors that compounded the risk.
There were two pathways by which the surveillance could have been provided. The first was direct surveillance by the family physician, with twice-yearly ultrasound requisitions and follow-up on the results. The second was a referral to a hepatologist or to a hospital-based HCC surveillance program, which would have placed the patient on an automated recall system and removed the burden from the family physician of remembering to order the imaging.
A Canadian study published in the Canadian Liver Journal surveyed how Canadian gastroenterologists and hepatologists were managing HCC screening in chronic HBV patients. The findings illustrate why automated recall systems matter. Of the specialists surveyed, only a small minority referred surveillance back to primary care physicians, and the authors emphasized that automatic recall systems are associated with better adherence than ad hoc screening. The implication for family physicians is that, in the absence of an automated recall system in their own practice, a referral to a specialist program is the safest way to ensure surveillance actually occurs.
In the patient’s case, neither pathway operated. The family physician did not order regular surveillance imaging, and the patient was not referred to a hepatology service or hospital-based HCC surveillance program. The patient continued to attend his family physician for routine visits. The HBV was documented in the chart. The risk factors were known. The surveillance, however, did not happen.
By the time the patient became symptomatic with abdominal pain, fatigue, and weight loss, the cancer had grown into an advanced HCC. Imaging at that point revealed a large, unresectable tumour. The diagnosis was made. Treatment options were palliative. The patient died within months of diagnosis, in his early fifties, leaving a spouse and minor children.
The legal framework
A civil claim for negligence against a physician requires the plaintiff to prove four elements: that the physician owed a duty of care; that the physician breached the applicable standard of care; that the patient sustained damage; and that the damage was caused, in fact and in law, by the breach. These principles are explained in detail in our foundational post on suing for medical malpractice in Ontario.
In a delayed-diagnosis cancer claim built on a failure of surveillance, the analysis tends to focus on three of those four elements.
Standard of care. The first question is whether the standard of care for a family physician treating a chronic HBV carrier included an obligation to ensure HCC surveillance was in place. On the facts of this case, the answer was supported by published Canadian and international clinical practice guidelines current at the time, by expert evidence from a hepatologist, and by the documented clinical picture, which placed the patient unambiguously within the surveillance population. The standard does not require the family physician to perform the surveillance themselves. It does require the family physician to make sure it happens, either by ordering and following up on the imaging or by referring to a specialist who will.
Causation. The harder element in nearly every delayed-diagnosis cancer claim is causation. The plaintiff must establish, on a balance of probabilities, that earlier diagnosis would have produced a materially better outcome. The Ontario Court of Appeal addressed this question directly in the appeal of a delayed diagnosis claim Paul Cahill argued and won, Hacopian-Armen Estate v Mahmoud, 2021 ONCA 545, where the court upheld the trial judge’s finding that an earlier endometrial biopsy would have detected uterine cancer at a stage at which it was treatable. The court rejected the defendant’s argument that an unproven counterfactual should defeat the claim and accepted that the standard “but for” test can be satisfied through reasoned inferences from the available evidence, including expert evidence on staging, treatment effectiveness, and survival statistics.
In the present case, the causation evidence focused on what an HCC surveillance program would more probably than not have detected, when it would have detected it, and what treatment options would have followed. The expert evidence supported the conclusion that, had the patient been on a standard semi-annual ultrasound program, his cancer would more probably than not have been identified at a curable stage. The patient’s clinical profile, his age, and the absence of any other competing comorbidities supported the conclusion that surgical resection or transplantation would have been a realistic and accepted treatment pathway. The survival statistics for HCC detected at that stage were significantly more favourable than the patient’s actual outcome.
Damages. Where a patient has died, damages in Ontario flow under two main heads. The estate itself can recover for the deceased’s pain and suffering, lost income up to the date of death, and out-of-pocket costs incurred for medical and palliative care. The deceased’s spouse and dependants can advance separate claims under the Family Law Act for the loss of care, guidance, and companionship, and for the pecuniary losses they have suffered or will suffer as a result of the death. For a 50-year-old patient with a working career still ahead of him and minor children at home, the Family Law Act claims, particularly the dependency claims, can be substantial.
How the case resolved
Like the great majority of medical malpractice cases that resolve before trial, this one settled following productive negotiations between counsel for both sides. The expert evidence on standard of care was strong. The expert evidence on causation, while contested as it always is, was supported by the patient’s clinical profile and by the published survival data for HCC detected at curable versus advanced stages. The damages were significant, particularly the dependency claims of the patient’s young family.
No settlement is a substitute for the loss the family suffered. What a settlement can do is provide some measure of financial security for the surviving spouse and children, hold accountable a physician whose conduct fell below the standard expected of family practice, and contribute to the broader awareness that surveillance is not optional for patients in defined high-risk groups.
Why this case matters
For families, the lesson of this case is uncomfortable. A patient who knows he is a chronic HBV carrier and who attends his family physician regularly is entitled to assume that the appropriate surveillance is being arranged. In practice, that assumption can prove unfounded. Patients in HCC risk groups, and the family members of those patients, should ask their physicians directly whether they are on an HCC surveillance program, when their last ultrasound was performed, and when the next one is scheduled. If the answer is uncertain or evasive, a request for a referral to a hepatologist is a reasonable next step.
For physicians, the lesson is that the responsibility to ensure surveillance occurs cannot be delegated to the patient. Patients with chronic HBV often do not know that they are at elevated cancer risk. They do not know what surveillance should look like, or how often it should occur. The CASL and AASLD guidelines are not advisory at the level of generality; they describe a standard of care that the courts will apply in evaluating a family physician’s conduct when an HCC is missed in an unscreened patient. The safest pathway, particularly in family medicine practices without an automated recall system, is referral to a hepatology service or a hospital-based HCC surveillance program, with documentation of the referral in the chart.
For the broader system, the recurring difficulty of HCC surveillance adherence has been a focus of research and quality-improvement initiatives across Canadian provinces. Calgary’s automated recall HCC surveillance program (documented in a recent population-based cohort study) has demonstrated high retention and is the kind of system-level intervention that would address the gap this case illustrates. Until such systems are universal, the duty to ensure surveillance falls on the individual physician, and the failures to do so will continue to produce avoidable cancer deaths and litigation.
Settlement Date: June 2018
Jurisdiction: Ontario
Counsel for the plaintiff family: Paul J. Cahill
