Halifax Medical Malpractice Lawyer Blog

I read blog post today by my colleague Catherine Bertram, a medical malpractice lawyer in Washington D.C. that I thought was interesting.

Dr. Sues Her Patient

She has posted about a California physician, Dr. Kimberley Henry, who has sued one of her own patients who posted a negative review about Dr. Henry online. I wonder if Dr. Henry is opposed to online rating websites generally or just the ones that say bad things about her? Keep in mind that Dr. Henry has signed up for some of these webites and posted her profile.

Gag Orders

Last year I posted about a similar issue Doctors Forcing Patients to Sign Gag Orders .

Catherine's post indicates that some doctors are becoming more aggressive about trying to prevent patients from exercising their right to freedom of expression.

Coming to Canada?

I'm not aware of any similar suits here in Canada, but the online doctor rating sites like Rate MD are a great resource for Canadians. Is it only a matter of time before we start to see doctors suing their own patients?

What do you think? Let me know by posting a comment.

Summertime is Dangerous in Hospitals

Past studies have shown that teaching hospitals experience higher rates of medical errors. It is referred to as the "July phenomenon" in the U.S. or even more morbidly the "August killing season" in the U.K. The problem has been confirmed to exist in Hospitals in Australia as well.

More Medical Students = More Deaths?

Ironic isn't it? Hospitals have to meet higher standards to be certified to teach medical students. Higher standards for the students but it ends up resulting in lower quality care for patients.

A new study has identified a ten percent increase in deaths due to medication errors . The death rate spikes in July, when all the eager new med students graduate and start their training.

One more reason to be careful this summer.

Continue reading "Beware the July Effect:Hospital Deaths Spike in Summertime" »

I am proud to say that I was elected president of the Atlantic Provinces Trial Lawyers Association (APTLA) at our annual meeting in St. Andrews N.B.

APTLA is:

...dedicated to obtaining legal redress for those who have suffered injury or injustice, and to preserving the rights of the injured to full and fair compensation.

A worthy goal and one that I am pleased to support.

Medical Experts Required

Expert evidence is always required in medical malpractice claims to establish the standard of care and whether there was a breach of the standard of care, or at least that has assumed to be the case by medical malpractice lawyers.

In fact, I recently posted about a claim here in Nova Scotia that was dismissed because the plaintiff failed to present appropriate expert evidence.

Medical Malpractice Claim Struck Out for Lack of Expert Evidence

Sometimes Experts Not Necessary?

However, a recent decision from the Ontario Court of Appeal indicates that an expert medical opinion may not be necessary to establish a breach of the standard of care in a medical malpractice claim.

Vandergiessen v. Trillium Health Centre (Mississauga), was released by the Ontario Court of Appeal last week.

In that case, the Court of Appeal stated:

“In our respectful view, the motion judge erred by granting summary judgment on this record. Not all claims against medical doctors require expert opinion evidence that the applicable standard of care was not met: See Ter Nuezen v. Korn, [1995] 3 S.C.R. 674 at paras. 40-49.

While the appellant may be unable to establish elements of her claim without an expert opinion, the claims advanced by the appellant against the respondents involve more than a typical allegation of medical malpractice. The appellant claims that statutory procedures and statutory conditions for her involuntary committal were not followed or satisfied. In our view, these allegations fall into the category of claims that may be established without an expert opinion. They are not matters that rest solely upon the opinion of experts as to whether the requisite standard of care was met.”

What does it mean?

If a plaintiff’s claim is based on an allegation that a doctor failed to meet the “standard practice” of other doctors and that the plaintiff suffered an injury as a result, I believe plaintiffs will still require an expert medical opinion to assess the standard of care.

However, in cases where there are certain statutory requirements or laws that a doctor has to meet, those requirements may be able to be proven without the enormous cost and expense of retaining an expert to provide a medical-legal opinion.

Continue reading "Medical Malpractice Claims: Is Expert Evidence Always Necessary?" »

Sylvie Deslongchamps has terminal cervical cancer. She is suing her family doctor for medical malpractice for failing to make a phone call that she says could have saved her life.

Patient Did What She Was Supposed to Do

In 2007 Ms. Delongchamps did what ever careful woman is supposed to do. She went for a checkup and pap-smear with her gynecologist. She says she told her doctor about her family history of cervical cancer. She never heard back from the doctor so she assumed that her test results were fine.

However, a year and a half later she began to have uncontrollable bleeding and went back to see the gynecologist. After looking at her chart the doctor realized that the results of the pap-smear indicated Ms. Delongchamps had cancer. But nobody ever told her about the test results!
Ms. Delongchamps says that if the doctor had simply picked up the phone to call her she could have received treatment early enough to save her life.

No News May Not be Good News:

Many of us assume when our doctor orders lab tests or x-rays that our doctor will call us if there is anything we need to be concerned about. Many of my clients have told me that they thought their doctor would call them if there was something wrong with their test results or if they need further follow-up.

Unfortunately, no news is not always good news. Sometimes test results aren’t delivered to the doctor, medical reports get misfiled, or doctors simply forget to alert their patients that they need further follow-up care.

Three Questions That Could Save Your Life

If your doctor orders you to undergo medical tests or refers you to another doctor for a consultation there are three questions that you should ask:

1. How long will it take before I have the test or get the appointment?
2. When will you get the results back?
3. When will I hear from you again?

If you have been referred for medical tests you need to know how long you should expect to wait to have the test. That way you can follow up in case someone forgot to make the appointment.

You need to know when you should expect to hear back from your doctor. Let's face it. Doctors are human. They are busy. They forget. If you don’t hear back from your doctor pick up the phone and make the call.

It may just save your life.

Distractions Cause Nursing Errors
Nurses who are distracted or interrupted during their medical preparation experience higher levels of medical errors.

I have posted before about how overworking causes errors that lead to medical malpractice.

Overworked Nurses Causing Medication Errors

However, a recent study published in Patient Safety and Quality Health Care has established a link between common distractions that nurses experience in the work place and the rate of medical errors.

Key Findings:

Errors were classified as “procedural failures” for example failing to properly read a medical label, or “clinical errors” like giving a patient the wrong drug or the wrong dose of the correct drug.

Interruptions occurred during more than half (53%!) of all medical administrations.

Each interruption was associated with a 12% increase in clinical errors.

Although most errors (almost 80% had little or no impact on patient care, almost 3% were considered major errors which endangered patient safety.)

The most common procedural error was failing to confirm that the proper patient was receiving the proper prescription.

The most common clinical error was administering the medication at the wrong time.

This study was conducted in the United States where approximately 98,000 Americans are killed every year as a result of medical errors. In Canada more than 24,000 Canadians die each year as a result of medical errors.

Medical Malpractice in Canada: How often does it happen?

In an era of budget cuts and financial restraint healthcare workers are being asked to do more and more with fewer resources. By identifying the factors that can lead to medical errors the study can, hopefully, help eliminate medical errors that endanger patient safety.

As a result of this study, and others like it, some hospitals have actually implemented “do not disturb” zones so nurses can have uninterrupted periods of time to administer medication and clinical care.

Continue reading "Distractions & Interruptions Lead to Nursing Errors" »

I don't normally comment on cases in the United States. But this one was so outrageous it is worth commenting upon.

Nurse Concerned About Doctor's Conduct

Nurse Anne Mitchell wrote what she thought would be a confidential letter to the Texas Medical Board expressing concerns about a doctor’s unsafe medical practices.

She thought the letter would be anonymous. Unfortunately, after learning of the complaint the doctor, Dr. Rolando Arafiles fired the nurse and reported her to the police!

Criminal Charges

Even more incredible the police charged her with the criminal offence of “misuse of official information”. Ms. Mitchell was prosecuted and faced up to 10 years in prison for doing what she believed was her obligation under the law – to report unsafe medical practices.

If Ms. Mitchell was found guilty it would have been a blow not only to her but also to every patient who has to undergo shoddy medical care at the hands of negligent doctors.

Not Guilty!

Fortunately for Ms. Mitchell, the jury deliberated for less than an hour before returning a verdict of not gulity on all the criminal charges. Ms. Mitchell's lawyers have filed a civil suit against the doctor, the hospital and various officials involved in her wrongful prosecution.

This ridiculous prosecution shows the lengths that some doctors will go to when trying to intimidate anyone who expresses concern about the quality of their medical services.

Nurses First Line of Defence

Nurses are often the persons most familiar with the condition and medical needs of their patients. It is the obligation of all health care workers to be aware of, and report, unsafe medical practices.

In 20 years of medical malpratice litigation I have had many cases where the success of my clients claim turned directly on the evidence of the nurses who were courageous enough to chart, and testify, about the negligent conduct of the doctors that injured my clients.

Canada Protects Whistleblowers

In Canada, employers who try to intimidate or threaten employees in order to prevent them from providing information to law enforcement officials are liable for criminal sanctions under Section 425.1 of the Criminal Code of Canada.

There is provincial occupational health and safety legislation that protects employees from reprisals resulting from attempting to enforce statutory health and safety provisions. An employer who fires an employee for reporting their negligence conduct could also be subject to civil sanctions in a wrongful dismissal lawsuit.

However, at least in Nova Scotia, there is no legislation that requires nurses and other health care workers to report what they believe to be negligent medical care on the part of a doctor.

Still Room for Improvement

Our legislation needs to be strengthened to require employees to report what may not be statutory violations but still amount to negligent care while still protecting those who come forward to report their concerns.

A recent decision from Justice Lococo from the Ontario Superior Court of Justice confirms the difficult odds that injured patients face when pursuing a medical malpractice claim.

Patient Suffered Stroke

In Hasselsjo v. St. Joseph’s Hospital et al, Songja Hasselsjo suffered a stroke. She sued St. Joseph’s Hospital and the nurse that treated her in the emergency department.

Negligent Triage?

The case revolved around whether the nurse that attended on Ms. Hasselsjo when she was presented to the emergency room properly followed the triage process in place at the hospital. Triage means to sort or prioritize. In emergency departments the triage is the process the hospitals use to prioritize patients for medical treatment.

Rules for Triage?

Guidelines have been developed to help health care providers with the triage process. In Canada, the generally accepted guidelines are the implementation guidelines for the Canadian Emergency Department Triage and Acuity Scale.

Failure to meet Standard of Care?

The judge assessed the evidence and had to determine whether the nurse that treated Ms. Hasselsjo failed to meet the standard of care in conducting her triage examination. The judge then had to consider if there was a breach of the standard of care and did the breach cause or contribute to Ms. Hasselsjo’s stroke and subsequent disability.

As is the case in all medical malpractice claims both sides called experts to testify in support of their claim. The plaintiff’s expert testified that the nurse failed to properly triage Ms. Hasselsjo. The defendants called experts who testified that the nurse did everything required of her under the standard of care.

Paramedics Evidence Critical

In determining if there was a breach of the standard of care, the judge placed a great deal of weight on the evidence of the paramedic who brought Ms. Hasselsjo to the emergency department. It was the view of Justice Lococo that the paramedic’s evidence, as a disinterested third party, was to be preferred over that of the plaintiff.

Justice Lococo determined that, based on the paramedic’s evidence Ms. Hasselsjo was not exhibiting symptoms that would have merited being triaged at a higher level and thus receiving medical treatment faster.

Problem with Causation

The judge went on to say that even if Ms. Hasselsjo had been triaged at a more urgent level the plaintiffs failed to prove that it would have made any difference to the outcome of her injury. If there was negligence, the plaintiffs failed to prove that the negligence was the cause of Ms. Hasselsjo’s stroke.

Continue reading "Patient’s Medical Malpractice Claim against Nurse and Hospital Fails " »

Our Court of Appeal recently released a decision upholding the decision of Justice David MacAdam denying a patient who claimed she was the victim of medical malpractice the right to trial by jury.

In Anderson v. QEII Health Sciences Centre, the plaintiff suffered a brain injury which she claimed was due to negligent medical care.

Patient Wanted Jury

She sued the hospital where she was treated and the two physicians who were in charge of her medical care. When she set the matter down for trial she filed a jury notice. In other words, rather than having the trial heard by a judge alone she wanted the opportunity to present her claim to a jury of her peers.

Defendants did want a Jury

The defendants moved to strike the jury notice. In other words, they wanted to force the plaintiff to have her claim heard by judge alone. The defendants claimed that the medical evidence that would be submitted at the trial would be too complicated for the average juror to understand.

Jurors as capable as Judges

Justice MacAdam decided that jurors were just as capable as judges to understand complicated medical evidence.

I am not persuaded that given sufficient time, and an opportunity revisit areas of uncertainty, a jury of seven is not in as good a position to examine, weigh and determine scientific or any other issues, as a judge sitting alone. On what basis a judge, untrained in the scientific or technical area under review, is better qualified to determine whether a person with education and training related to the particular scientific or technical area in question, has acted properly or improperly, is unclear. Nothing in the submissions of counsel, particularly counsel for the individual defendants, satisfies me that this is either probable, or even a serious possibility.

Lack of Time a Disadvantage

However, Justice MacAdam felt that a jury trial would be a significant disadvantage in hearing claims involving complicated expert testimony because judges can take as long as they need to reach their decision whereas jurors are under time pressures.

Justice MacAdam stated:

There is, however, one difference in how a jury, as opposed to a judge alone, would be able to conduct a review of the evidence, including particularly the expert evidence, and the weighing of the submissions of counsel. Although it has been stated a jury can take as long as required, practically, they are limited to making an "almost" immediate decision. Whether it be hours, days, or even, in some cases, a couple of weeks, there are effectively time restraints on their reaching a conclusion.

No Time Limits on Juries

There are no time limits on how long a jury may take to render a decision. Juries can take as long as they need to consider all of the evidence before them. Juries also have the right to return to court to ask for instructions from the judge on any legal issues. Juries even have the opportunity to reply the testimony for various witnesses. They also take all of the medical reports and all other exhibits presented during the trial with them into the jury room.

However, that being said, most juries reach their decision in hours, days or sometimes weeks. Whereas judges in complex claims often take months to consider the evidence and render their decision.

In upholding Justice MacAdam’s decision to strike out the jury notice the Court of Appeal said:

With respect, to suggest, as have the appellants, that this case stands for the proposition that a judge may strike a jury notice simply because it would be more conveniently tried by a judge sitting alone, is a distortion of the carefully crafted and case specific reasoning in the judgment under appeal.

Medical malpractice claims almost always involve numerous experts and complicated medical evidence. However, they are no more complicated then many other types of complex civil litigation.

The simple fact is that medical malpractice claims are often complicated because the defendants make the case complicated. It is that complexity that has led some judges to deny injured victims the right to have their claims heard by a jury.

Informed Consent

I have posted before about informed consent to medical treatment and why it is so important in medical malpractice claims. Unfortunately, these types of claims are very difficult to win.

What Does Informed Consent Have To Do With My Nova Scotia Medical Malpractice Claim?

“Mature” Children Can Refuse Medical Treatment: Supreme Court of Canada

Neck Manipulation Caused Stroke

That's why I found a recent decision out of Newfoundland and Labrador very interesting.

A chiropractic patient recently won a difficult case against a local doctor alleging neck manipulation caused her stroke. The case was tried in St. John's.

In Gallant v. Brake-Patten the patient, Ms. Gallant successfully sued her chiropractor. She claimed that she suffered a stroke after undergoing neck manipulation.

Justice Harrington accepted the plaintiff's evidence that the chiropractor did not advise her of the risk of stroke. Harrington J. was also satisfied that Ms. Gallant would not have had the chiropractic treatment if she had known about the risk of stroke.

Finally, she was able to prove on the balance of probabilities that the neck manipulations actually caused her stroke. This is an issue that has been the subject of some debate among medical experts.

I have created a video explaining what informed consent is and why it is important in medical malpractice cases. You can watch it here or go to our video library to see this video and other videos with useful information about medical malpractice and personal injury claims.

Thanks to my colleague Ches Crosbie for alerting me to the decision. Ches is one of the premier medical malpractice lawyers in Newfoundland and Labrador.

Mistakes May Not Be Negligence

The Ontario Court of Appeal has ruled that a doctor’s “error in judgment” was not evidence of negligence.

Roger Lawrence was admitted to the Welland Hospital as a result of severe stomach pains. The physician treating him concluded that he was suffering from gallbladder colic. The following day the surgeon performed a laparoscopic cholecystectomy.

Over the next 12 days Mr. Lawrence’s condition alternately improved and deteriorated. He began to show signs of distress and was air lifted to Mount Sinai Hospital where he eventually died of necrotizing pancreatitis.

Standard of Care

As is usually the case in medical malpractice claims there were different opinions from the plaintiff’s experts and the defendant’s experts as to whether the defendant surgeon met the standard of care required of the reasonably competent doctor.

Treatment "Reasonable"

The opinion of the doctors called on behalf of the defendant was that the doctor’s approach to Mr. Lawrence’s treatment was “reasonable” and met the expected standard of practice.

At issue was the doctor’s decision to wait and see how Mr. Lawrence’s condition improved (or deteriorated) before taking further action.

Causation Not Proven

It was not clear from the evidence presented by the plaintiff at trial that earlier investigation or alternate treatment would have changed the outcome in Mr. Lawrence’s case. In other words, the plaintiff didn't prove that the alleged mistake caused Mr. Lawrence's death.

Consequently the trial judge ruled that the plaintiff had not established that the defendant was guilty of medical malpractice. The Court of Appeal upheld the trial judge’s decision and stated:

“In our view, the trial judge made no such error in finding not only that the respondent’s treatment of Mr. Lawrence did not fall below the standard of care but also that causation had not been established”

Mistakes Evidence of Negligence Not Proof of Negligence

This case is a perfect example of something that is often difficult to explain to patients who have been seriously injured or family members who have lost a loved one. Just because a doctor makes a mistake does not necessarily mean the doctor has committed medical malpractice.

An error of judgment may be evidence of negligence but an error in judgment is not, by itself, negligent. A plaintiff must show that the error in judgment fell below the standard expected of a reasonably competent doctor and that the error in judgment caused the patient’s injury.

Continue reading "Doctor’s “Error in Judgment” is not Negligence" »

Nurse Negligent

In a decision released last week, Justice Tausendfreund has ruled that a nurse at St. Joseph's Children’s Hospital was negligent and that the nurse’s negligence caused catastrophic brain injuries to a baby, Danny Vuong.

Danny’s mother, Ms. Giang was admitted to St. Joseph’s Hospital on June 12, 2991. Her pregnancy had been normal and uneventful.

Fetal Heart Monitor Results Not Normal

Two nurses were assigned to Ms. Giang to monitor the baby’s fetal heart rate. They used an electronic fetal heart monitor (EFM) to monitor the baby’s heart rate.

When the nurse checked the heart monitor it showed a range of 170 beats per minute, a reading that is outside the normal range. The nurse assumed that she had simply heard a normal acceleration of the baby’s heart rate. However, the nurse also recognized that the increased heart rate could also be a sign of tachycardia, an abnormal elevation in the heart rate which is a sign of fetal distress.

Didn't Check Again

But she didn't check the baby's heart rate again to see if it had returned to normal! 20 Minute Delay

Unfortunately, the nurse did not return to Ms. Giang to conduct another fetal heart rate monitor until 20 minutes later. By that time, the baby’s heart rate had dropped precipitously and an emergency C-section was performed.

The surgeon who performed the c-section found that the umbilical cord had been wrapped around Danny’s neck. Danny was born suffering from the results of acute hypoxia-ischemia resulting in severe brain damage.

Justice Tausendfreund ruled that:

“Had Danny been born 10 minutes earlier he would have been at great risk for some neurological injury, but he would not have sustained the depth or extent of injury he did.

“I find that had Danny been born 10 minutes earlier, it would have significantly and materially reduced both the extent and nature of the injury to Danny’s brain and would have significantly and materially reduced the degree of functional impairment.”

Nurse Failed to Meet Standard of Care

Justice Tausendfreund ruled that the nurse had failed to meet the standard of care expected of her. Had she acted in accordance with the standard of care and continued to monitor the baby’s heart rate to confirm her assumptions she would have realized that the baby was suffering a medical emergency. As a result, the Judge ruled that the nurse’s negligence was the cause of baby Danny’s catastrophic brain injuries.

Causation in Medical Malpractice Claims

This case shows how a difference of just minutes can mean the difference between life and death. The difference between having a healthy baby and a baby who will live his life severely debilitated by brain injury.

The vast majority of medical malpractice claims fail because the victim is not able to prove that the the health provider's negligence caused or materially contributed to their injury.

Continue reading "Nurse's Negligence Caused Child’s Brain Injury" »