Halifax Medical Malpractice Lawyer Blog

Judge or Jury?

In most provinces in Canada, it is possible to have a civil case tried by judge alone or by judge and jury. I discussed this recently in an article on my Halifax Personal Injury Lawyer Blog, Do I have a right to a jury trial in personal injury claims?

The Nova Scotia Supreme Court recently stated in Anderson v. Cyr, a claim arising out of a motor vehicle accident:

“...there is a longstanding, traditional and substantive right of a party to a civil action in this province to a jury trial.”

Too complicated for a jury?

However, in the Anderson case, the court decided to strike out a request by the defendant to have the claim hear by judge and jury. Justice Wright decided that the combination of the large number of expert witnesses, the scientific and technical evidence to be submitted, the complicated damages issues and the length of the trial established “cogent” reasons to hold the trial in front of a judge alone.

That is not to say that juries are not capable of making a reasonable and fair decision in long trials with many experts that involve complicated medical and legal issues.

The Ontario Court of Appeal recently faced the question of whether or not they should overturn a jury’s decision in a complicated medical malpractice case: Goodwin v Olupona.

Facts

In the summer of 2002, Debra Goodwin gave birth to a twin boy and girl. Unlike his sister, Adam, the baby boy, was injured prior to birth and was subsequently diagnosed with spastic quadriplegia. Mr. and Mrs. Goodwin sued the health professionals and the hospital involved in Adam’s delivery.

Following a 32-day trial, and 8 days of deliberations, the jury found Nurse Burhanpurkar 75%liable and the hospital 25% liable for the injuries. The nurse and hospital appealed the jury’s decision.

The appellants argued the jury’s verdict was unreasonable in that it was not supported by the evidence and that the charge to the jury contained errors.

Court of Appeal

The Court of Appeal began their analysis by recognizing that a jury’s verdict will only be set aside if it is “so plainly unreasonable and unjust as to satisfy the court that no jury reviewing the evidence as a whole and acting judicially could have reached it.”

And that, “where there is some evidence to support the verdict, a jury will be accorded a high degree of deference.”

Expert required to prove standard of care?

The hospital argued that since there was no expert evidence with respect to the hospital’s standard of care, the jury had no basis to conclude the hospital was negligent. However, the Supreme Court of Canada had previously decided that it was open for a jury to find there was a breach of the standard of care without expert evidence (ter Neuzen v. Korn).

The Court of Appeal noted that whether expert evidence would be required turned on whether the nature of the issue could be decided on the basis of knowledge possessed by the jury, or on the other hand, if it required expert evidence because it went beyond the knowledge of the average juror.

Common sense

The Court of Appeal found that the juries finding that a hospital must provide staff and facilities capable of meeting the needs of patients is within the abilities of an average juror.

Seems like common sense right? If you are running a hospital you should ensure the hospital is properly staffed to meet the needs of the patients. Anyone need an expert to tell them that?

The Court of Appeal also rejected the Nurse’s argument that the jury had inadequate evidence to establish causation between her actions and the harm. The Court found that there was such evidence:

[75] In my view, there was evidence capable of supporting the jury’s findings of negligence and causation – that on a balance of probabilities but for Nurse Burhanpurkar’s failure to properly monitor the FHRs, for which the nurse and hospital bear a degree of responsibility, it was likely that Adam’s injury could have been avoided.

With respect to the charge to the jury the Court noted that an appellate court should not hold a trial judge’s charge to a jury to a standard of perfection. Rather the focus should be on whether or not the jury would have properly understood the law. The Appeal Court held that the jury was properly charged with respect to the “but for” test. They additionally found that none of the facts omitted by the trial judge were so important that their omission resulted in a substantial wrong. Finally, the Court concluded that the jury would have understood the law.
The Court of Appeal concluded by noting that the verdict of the jury was entitled to deference.

The appeal was dismissed and the respondents were awarded $40,000.00 in costs.

Common sense

This case is a perfect example of a jury exercising common sense in reaching it's decision and the Court of Appeal's ruling in this case simply reflects the fact that just because there may be complicated questions involved in a trial, not all of the answers are complicated.

Sometimes the answers are just common sense.

Here in Nova Scotia, parties to a lawsuit have a longstanding right to a jury trial and deference should paid to the ability of the average juror to hear the evidence and reach a decision that is based both on the evidence and on common sense.

I read with interest this article in the New York times written by Joanna Schwartz, a professor of law at the University of California, Los Angeles.

One of the (false) arguments trotted out by oppontents of medical malpractice litigation is that it prevents disclosure because doctors and hospitals take a "circle the wagons" approach to litigation that inhibits sharing of information that could improve patient safety.

However, a study done by Ms. Schwartz showed just the opposite:

My study also shows that malpractice suits are playing an unexpected role in patient safety efforts, as a source of valuable information about medical error. Over 95 percent of the hospitals in my study integrate information from lawsuits into patient safety efforts.

Access to Justice Improves Patient Safety

I have said it before but I think it is worth repeating. The ability of patients to seek accountability through the courts is a fundamental part of our civil justice system. Medical malpractice litigation plays an important part in improving patient safety by pointing out medical errors and how they can be corrected/prevented.

Ms. Schwartz notes:

But participants in my study said that lawsuits can reveal previously unknown incidents of medical errors — particularly diagnostic and treatment errors with delayed manifestations that other reporting systems are not designed to collect.

Want more information?

Want to learn more about how Canadian victims of medical malpractice are helping to improve our health care system? Get a copy of After the Error.

Although I contributed to the book I don't receive any financial benefit from sales. I just think that the book is an important step towards greater transparency in our health care system. The authors, Susan McIver and Robin Wyndham are passionate advocates for patient safety.

This recent decision from the Ontario Supreme Court highlights the difficulties faced by families who want to pursue a medical malpractice claim for the loss of a loved one.

Sharon Mangal was admitted to the William Olser Hospital on February 16, 2004 to give birth to her second child through caesarean section. Although she ultimately gave birth to a healthy baby girl, Sharon did not survive the procedure.

Sudesh Mangal, Sharon’s husband, along with Vincent and Sarina Mangal, her children, sued the hospital and the doctors alleging their negligence caused Sharon’s death.

The defendants in the case were the obstetricians, nurses, and the anesthesiologists who cared for Sharon Mangal during her labour and delivery, and William Osler Health Centre where the surgery took place. Marocco J. meticulously reviewed the evidence put forward against each of the defendants.

Standard of Care

In any medical malpractice claim, the plaintiff has the burden of proving what the expected standard of care was for each of the defendants and that one or more of the defendants breached the standard of care. In other words, the plaintiff has to prove that one or more of the defendants was negligent.

The plaintiffs have the burden of establishing that, but for the negligent act, the injury would not have occurred. Or in this case, Sharon’s family must prove that timely and appropriate treatment from the Hospital and the doctors and nurses involved would, more likely than not, have avoided the Sharon’s death.

The Medical Evidence

Marocco J. noted that Ms. Mangal’s pregnancy was not routine because she had developed high blood pressure and she had an enlarging fibroid in her uterus. This was important because while the existence of a fibroid was not unusual, it did create a higher risk of bleeding after delivery.

The delivery

The delivery proceeded without complications and after delivery of a healthy baby, Sharon Mangal appeared to be doing well. Dr. Chandran, the obstetrician, left directions with the nurse and returned to her office. The judge noted this was the standard practice.

Everything appeared to be fine with Ms. Mangal until about 11:30 a.m. when the nurse on duty noted some bleeding and that Ms. Mangal's blood pressure readings had dropped.

Justice Marocco determined that although there was a delay in acting on this information, the nurse did notify the relevant professional on or about noon – thereby satisfying the expected standard of care.

Dr. Girvitz saw Sharon at 12:35 p.m. He did not order coagulation studies when he saw Sharon because she was not bleeding at the time, and, according to the doctor, her blood was not watery. Dr. Girvitz thought Sharon was stable at the time of his assessment. The judge found that the failure to order a transfusion at this point did not fall below the standard of care.

Delay in reporting test results

Coagulation tests were eventually ordered. Marocco J. noted there was unacceptable delay in reporting these tests back to the Post-Anesthetic Care Unit, where Sharon was receiving treatment.

However, because coagulation factors were ordered before the test results arrived, the delay in the test results did not delay the administration of coagulation products.

22 minutes

Marocco also assessed the timing of the decision to return Sharon to the operating room. The judge concluded from the evidence that she should have been sent to the operating room around 1:30 p.m. She only arrived in the O.R. at 1:52 p.m.. This 22 minute delay constituted a breach of the standard of care.

Causation

The next step for the Ontario Court was to decide if the breach of the standard of care led to Sharon Mangal's death: “whether it is more likely than not that failing to decide to operate at 1:30 p.m. contributed to Ms. Mangal’s death”.

The judge determines that Sharon died as a result of Disseminated intravascular coagulation a clotting disorder commonly referred to as DIC that occurred around 2:07 p.m..

The evidence established that in the William Osler health Ceneter, once the decision to operate is made it takes approximately one hour and ten minutes (1:10) to actually commence surgery (the time from decision to incision).

Justice Marocco found that if the decision was made to operate on Sharon at 1:30 p.m., as would have been appropriate, she would not actually have been in surgery until 2:40 p.m.

Unfortunately, the evidence indicated that Sharon was in DIC at 2:07 p.m..

As a result, the court determined that despite the negligence in the care provided to Sharon Mangal, the failure to meet the standard of care did not cause her death.

Conclusion

The judge found there was conduct of the defendants that fell below the standard of care. However, the family was not able to prove that this conduct led to Sharon Mangal's death. Accordingly the case was dismissed.

This case is an example of the tough road that medical malpractice victims face. Even though Sharon’s family lost their wife/mother, and they could prove that the medical professionals fell short of their standard of care, they could not prove the deficiencies actually led to her death.

As a result, they were unable to recover anything to compensate them for their tremendous loss.

Continue reading "Doctors negligent, but family loses medical malpractice claim: Mangal v. William Osler Health Centre " »

Child Claims Millions Due to Birth Injury

An Alberta court recently decided a case involving a child who was permanently injured during her birth. The case A.T.-B. v. Mah contained an interesting analysis of a variety of legal issues that typically arise in medical malpractice claims.

I thought the case was worth writing about because of the judge's views regarding the plaintiff's claim for compensation for "pain and suffering."

Background

The plaintiff (“A”) was born by caesarian section in 2001. She claimed the defendant, Dr. Mah, was negligent during the delivery process. During her birth, A's supply of oxygen was reduced, causing her permanent and severe brain injuries. According to all of the experts that testified, A will require 24 hour care and supervision on a minute-by-minute basis for the rest of her life.

She claimed damages of $15,000,000 for her loss of earning capacity, loss of the economic advantages of marriage, past and future cost of care, the expenses to manage her remaining life activities and damages for pain, suffering, and the loss of enjoyment of life.

What is pain worth in Canada?

What I found interesting was the Court’s assessment of the non-pecuniary damages (pain, suffering, and loss of enjoyment of life).

Canada has a "cap" on the amount of money injured plaintiffs are entitled to receive for pain and suffering. The rule comes from a 1978 case, Andrews v. Grand & Toy where the Supreme Court of Canada set the “cap” for the “worst case scenario” plaintiffs at $100,000.00.

This amount has been adjusted for inflation since then and now sits at approximately $328,000 in Nova Scotia (it is slightly different in each province since the cost of living in each province is different).

This amount is a stark contrast to the millions frequently awarded in the U.S.A. in states that do not have a cap on non-pecuniary damages.

Worst Case

The Plaintiff in A.T.-B. v. Mah sought to recover the maximum amount for non-pecuniary damages. The Defendant doctor argued that the child was not hurt badly enough to get the maximum award. Justice Graesser of the Alberta Court of Queens Bench recognized the problem with the “worst case scenario” situation and stated:

[543] In personal injury cases, looking for the worst harm in the worst circumstances to the most vulnerable victim is an unfortunate and hopeless analysis. Is it worse to be blind or deaf? Quadriplegic or without much cognitive functioning? Is it worse to be conscious of your loss, or oblivious to it? These arguments are more philosophical thought experiments than legal analysis, and therefore are a poor foundation on which to base useful jurisprudence. A key purpose of the law is to provide predictable results. Trying to rank different but terribly deleterious outcomes is too imprecise a basis for the calculation of damages.

Imprecise calculations?

Graesser J. interestingly compared the cap on damages in personal injury cases to the larger awards granted in defamation cases. Surely the pain and suffering of quadriplegics should warrant higher amounts than the damage to a reputation?

One case, Young v. Bella [2006], involved a graduate student who had her reputation severely damaged by a professor. The Supreme Court of Canada upheld a jury award of $430,000 in non-pecuniary damages. The SCC declines to consider whether the cap from Grand & Toy v. Teno should apply to non-pecuniary damage awards outside of the personal injury context.

Additionally, in Hill v. Church of Scientology the SCC decided a libel case between a Crown lawyer and the church. The SCC confirmed the total jury award of $1.6 million, including a $300,000.00 award for non-pecuniary damages.

Courts have also been willing to reject the cap in sexual abuse cases. In S.Y. v. F.G.C. the British Columbia Court of Appeal awarded non-pecuniary damages of $250,000. In making this decision the Court stated that the “cap” was not applicable to cases of intentional torts of a quasi-criminal nature.

Flawed reasoning?

So what are the reasons for capping non-pecuniary damages for personal injury cases?

In Teno v. Arnold and Andrews v. Grand & Toy the Supreme Court of Canada gave 4 reasons why they felt it necessary to cap damage claims:

1. The claim of a severely injured person for damages for non-pecuniary loss is virtually limitless. The fact that there is no objective yardstick for measuring such loss leaves this area open to inconsistent and widely extravagant awards. The concern I have with this point is that it ignores that fact that judges render their decisions after considering precedents established in other cases, so this fact alone should rein in "wildly extravagant" awards."

2. Damages for non-pecuniary losses are not really "compensatory" as no money can provide true restitution. Accordingly, such damages should be viewed as simply providing additional money to make life more endurable. I refer to this as the: “No amount of money can change what happened, so why should we try?” argument. In fact, I get that argument from defence counsel a lot in sexual abuse cases.

3. Under the law, the plaintiff will be fully compensated for future loss of income and future care costs. I call this the: “We’re paying your bills, what more do you want?” argument.

4. Exorbitant awards for general damages can lead to an excessive social burden (i.e. unaffordable increases in insurance and social costs). But there was no evidence provided on this issue at the original trial or at the court of appeal. It was raised for the first time by the Supreme Court of Canada and appears to have formed one of the foundations of their decision. On this issue the Court in Teno v. Arnold said (at page 333):

The very real and serious social burden of these exorbitant awards has been illustrated graphically in the United States in cases concerning medical malpractice. We have a right to fear a situation where none but the wealthy could own or drive automobiles because none but the wealthy could afford to pay the enormous insurance premiums which would be required by insurers to meet such exorbitant awards

The flaw in this reasoning is that Canada and the United States have very different systems when it comes to defending medical malpractice claims. In Canada, there is a Canadian Medical Protection Association which is responsible for defending most (95%) medical malpractice claims. I touched on the role that the CMPA plays in reducing the number of medical malpractice lawsuits in Canada in a previous article.

I don’t believe the comparison between Canada and the USA is relevant. Additionally, no evidence was provided about what effect, if any, not having a cap would have on auto insurance premiums.

This is the same argument that auto-insurers make in every province when they want caps on compensation inured auto accident victims. But close examination of the facts always shows that damage awards have almost nothing to do with increasing (or decreasing) auto insurance premiums.

In Andrews v. Grand & Toy Justice Dickson said (at page 265):

I would adopt as the appropriate award in the case of a young adult quadriplegic like Andrews the amount of $100,000. Save in exceptional circumstances, this should be regarded as an upper limit of non-pecuniary loss in cases of this nature. [Emphasis added]

The statement “save in exceptional circumstances” logically means there should be exceptions to the rule. The problem is that in the 35 years since the SCC trilogy not a single claim has succeeded in establishing "exceptional circumstances" sufficient to beat the SCC’s cap.

So the Court’s statement has ultimately been treated as a cap on the compensation that every single injured Canadian is entitled to receive for their injuries. In ter Neuzen v. Korn, Justice Sopinka went so far as to say that the $100,000 cap that the Supreme Court of Canada imposed as a "rule of law" was a legal limit for non-pecuniary damages in personal injury cases.

So much for exceptional circumstances.

Applying the cap to A.T.-B.

In assessing the pain and suffering of the plaintiff, the Court was presented with a number of cases involving plaintiffs who were similarly injured. The Plaintiff’s lawyers submitted cases involving plaintiffs who would have been similarly or less injured yet received the maximum award, while the Defendant’s lawyers submitted cases involving plaintiffs who were similarly of more injured yet did not receive the maximum award. With respect to this approach the Court stated:

[564] I do not intend in this decision to go through all of the cases submitted to me, distinguish or explain them, illustrate why A. is worse off than all of the other plaintiffs who received lesser awards, and why A. is entitled to the maximum available award. Suffice it to say that there are cases which obviously attract the maximum award by virtue of their injuries and the effect of their injuries, notwithstanding that there may be others who characterize someone else’s injuries as worse.

Ultimately the Court awards the maximum amount permitted under the Grand & Toy cap, adjusted for inflation.

I have to say that despite the fact that the court upheld what is (in my view) an unfair cap on compensation for non-pecuniary damages, Justice Graesser did exercise some common sense in the application of the rule. The approach eliminates the "worst case" argument and may make it easier for seriously injured victims to receive the maximum amount of compensation allowed under the Supreme Court of Canada cap.

Continue reading "Multi-million dollar award to child who suffered birth injury: Court examines compensation for "pain and suffering" " »

Recent findings out of the Oregon Health and Science University questions the existing understanding that decreased blood flow to a premature fetus’ brain necessarily kills its brain cells.

The Doctors at the University and its attached Children’s hospital have discovered that low blood flow to the developing brain does not necessarily result in permanent loss of brain cells, but rather that it prevents the cells’ abilities to mature. The implications for medical malpractice and birth injury layers is that it may be possible to reverse, or at least mitigate the damage caused by lack of oxygen.

Dr. Stephen Back, professor of pediatrics and neurology at the Oregon University is quoted as saying that the new findings mean:

“...we can focus greater attention on developing the right interventions, at the right time early in development, to promote neurons to more fully mature and reduce the often serious impact of preterm birth. We now have a much more hopeful scenario.”

Approximately 8-percent of births in Canada are pre-term births. There are a number of added risks when a child is born even a few weeks early. One of the major risks is hypoxia or ischemia.

Hypoxia and ischemia are potential causes of cerebral palsy. For more information about the causes of cerebral palsy you can read the article on our website: Birth Injuries Caused by Oxygen Deprivation

According to Statistics Canada there are over 42,000 Canadians living with cerebral palsy. Hopefully studies like those out of the Oregon University can help to bring those numbers down in the future.

It is still too early to say whether this research will lead to fewer cases of CP or help in the rehabilitation of brain injured infants. But the results are promising. Infants are 10 times more likely to be diagnosed with cerebral palsy than with cancer. Premature babies are especially vulnerable.

Continue reading "Is it possible to reverse infant brain injury caused by ischemia? " »

CBC-TV’s The Fifth Estate is spearheading an initiative to rate and rank Canadian hospitals.

As a medical malpractice lawyer I applaud any effort that makes health care in Canada more transparent. Peter Drucker is famous for saying: "What gets measured gets managed". So I have to think that using public data to educate the public about hospital performance and asking the public for feedback about hospitals can't help but have a positive influence in the care that patients receive.

The CBC collected data from the Canadian Institute of Health Information (CIHI) and ranked the hospitals using certain criteria.

The hospitals are then awarded letter grades. The specific areas ranked by CBC include:

1. Mortality after major surgery;
2. Nursing-sensitive adverse events, surgical patients;
3. Nursing-sensitive adverse events, medical patients;
4. Readmission after surgery;
5. Readmission after medical treatment.

Of the over-200 hospitals assessed: 20 hospitals received A averages, 140 received B’s, 34 got a C-rating, while 8 hospitals received D’s, the lowest grade given. The 8 hospitals with the lowest grades were in British Columbia, Alberta and Saskatchewan.

Patient Feedback

The other part of the initiative involves patient feedback using this website.

The questionnaire asks users to rate their hospital experience from 1-star (meaning poor) to 5-stars (meaning excellent). The questions ask you to assess whether:

1. You were treated with courtesy and respect?
2. Care was explained to you in a way you could understand?
3. You were attended to in a timely manner?
4. You were treated in a clean environment?
5. You would recommend the hospital to family and friends?

The idea is that the rating site will serve a number of purposes. Patients will be able to check the site prior to choosing which hospital to attend and will be able to make informed decisions as a result – for example: a patient requiring prompt treatment can avoid the hospital ranked poorly for timeliness. Additionally, the primary aim of the website is to encourage the hospitals to pay close attention to the feedback and use it to improve the quality of their services.

Admittedly the sample size for most hospitals is small right now. but if the website catches on I think this could prove to be a very valuable tool.

Halifax Hospital Ratings

Of course since I'm in Halifax, the first thing I did was check out the ratings for the two hospitals here.

IWK Health Centre – The CBC did not receive enough information to fully rate the IWK but received A+’s in 3 of the 5 ranked criteria. Also, patient feedback was provided by 48 people and it was generally very positive with an average of 4 stars.

QEII Health Sciences Centre – Given an overall grade of B. The QEII received B’s for the first 4 areas with an A+ in the ‘re-admission’ criteria. Patient feedback was provided by 87 people with an average of 3 stars.

Right idea

If we can use websites to rank our movies (rottentomatoes.com), our professors (ratemyprofessor.com), our restaurants (yelp.com), and pretty much every other service available, why shouldn’t we use it to rate our healthcare?

If constructive feedback is provided by patients, we can only hope hospital administrators will take note.

By the way, you can leave me some feedback by leaving a comment.

Pat Malone, in my opinion, is one of the most capable medical malpractice lawyers in the United States. That is why I frequently read his D.C. medical malpractice blog.

I am currently representing the family of a young man who died because he received the wrong medication during his treatment in hospital. So an article Pat recently wrote on Hospital Medication Errors caught my attention.

Medication errors common

Pat notes that medical errors in hospitals are far more common than one would assume. He goes on to say that one of the reasons for this is that patients and their loved ones are usually not informed when a mistake occurs.

Patients kept in the dark

The article reports that researchers at Johns Hopkins University School of Medicine, generally considered the top medical school in the U.S. and one of the best in the world, analyzed 839,553 medical errors across the country. The medical errors were reported using MEDMARX, an anonymous, confidential, self-reporting system. The researchers determined that, when an error did occur, patients and their families were very rarely informed. In fact, the study determined that less than 2-percent of all of the errors were disclosed to the patients!

What about Canada?

We would like to believe that things would be different in Canada, wouldn’t we? Well, here in Canada the Canadian Medical Association’s Code of Ethics specifically states that medical professionals are obliged to take all reasonable to steps to prevent harm and, if harm should occur, doctors must disclose it to their patients.

Also, there is a Canadian Medication Incident Reporting and Prevention System (CMIRPS) which is a national program which collects, analyzes and shares information regarding medical accidents.

And the Disclosure Guidelines from the Patient Safety Institute of Canada specifically state:

“Whenever a patient suffers harm, whatever the reason, the healthcare provider or organization has an obligation to communicate to the patient about that harm and, if applicable, the event that led to the harm.”

The Guidelines go on to states that disclosure should occur if the mistake causes any harm or risk of harm. However, disclosure is discretionary if there is a near miss or close call. If the medical professional is uncertain about whether harm has occurred they recommend that disclosure take place.

Are Code of Ethics and Guidelines being followed?

The Code of Ethics and the Guidelines would suggest that Canadians would likely be informed if a mistake was made in their care or medication right? Not quite.

A 2007 report from the Canadian Medical Association Journal specifically notes that Canadian patients are:

“...no more likely to be informed about harmful errors than patients elsewhere.”

It is important that you express any concerns you have to you medical professionals. Remind them of any allergies you have suffered and of any other drugs you are receiving.

Want More Information?

If you or a loved one have suffered injuries that you think may be due to medical malpractice you can buy a copy of my book: Health Scare - The Consumer’s Guide to Medical Malpractice Claims in Canada: Why 98% of Canadian Medical Malpractice Victims Never Receive a Penny in Compensation on Amazon.com. All proceeds from book sales go to charity.

Free Copy to Blog Readers

But supporters who read this blog can contact me through this blog or call us toll free in Atlantic Canada 1-877-423-2050 and we will send you a copy at no charge.

The Supreme Court of Canada released an important decision for medical malpractice plaintiffs today.

Summary

In Ediger v. Johnston, the plaintiff “C” suffered from brain damage caused during her birth. C now lives with spastic quadriplegia and cerebral palsy. She is tube-fed, confined to a wheel chair and is completely dependent on others for all of her daily needs. She has a significantly reduced life expectancy of 38 years.

The physician delivering C, Dr. William Johnston decided to use a mid-level forceps procedure. But he did not inform nor warn C’s mother of the risks of this delivery method. At some point during the delivery Johnston decided to abandon the forceps method and left the room to make arrangements for a Caesarean section. In the meantime C’s umbilical cord was obstructed lead to her injuries.

At trial the judge found the doctor breached the standard of care in that he both should have had surgical backup available before attempting the forceps procedure and he should have obtained consent from C’s mother before commencing the procedure. The trial judge awarded C a total of $3,224,000 in damages.

At the British Columbia Court of Appeal, the doctor successfully appealed the decision. I wrote about the unfortunate British Columbia Court of Appeal decision Court of Appeal Overturns Award to Brain Injured Baby - Ediger v. Johnston

The B.C. Court of Appeal ultimately determined that C’s injuries were not the result of Dr. Johnston’s actions. The B.C. Court of Appeal confirmed that the Courts were adopting a strict test with respect to proving causation in medical malpractice cases. Following that decision in 2011, I said that the case confirmed that medical malpractice cases remained “complicated, risky and difficult to prove.”

Today, the Supreme Court of Canada reversed the Court of Appeal’s decision and ordered that C receive compensation.

The SCC noted that “A ‘mid-level’ forceps delivery is the riskiest type of forceps delivery” and Dr. Johnston did not inform Mrs. Ediger of the potential risks associated with this delivery method. The SCC also paid attention to the fact that, prior to initiating the forceps procedure, Dr. Johnston never inquired about the availability of an anaesthetist or operating room staff in the event that a C-section was required.

SCC Analysis

Standard of Care

The Supreme Court of Canada agreed with the trial judge that Dr. Johnston did not meet the required standard of care, and this caused of the injuries. In their decision the unanimous Court stated:

[53] Dr. Johnston was required, before he initiated the forceps procedure, to take reasonable precautions that would have been responsive to the recognized risk of bradycardia and the injury that results if bradycardia exists for more than 10 minutes. Because it is undisputed that Dr. Johnston failed to take these precautions, which would have resulted in a faster delivery and likely prevented injury from bradycardia, the trial judge’s causation finding is sound. [My emphasis]

The Court also affirmed the trial judge’s findings that Mrs. Ediger would likely have rejected the forceps method in favour of a C-section, had she been properly informed of the risks.

The decision is important because the Supreme Court of Canada implicitly recognizes that a discussion of informed consent is not simply a check list of possible harms/risks. rather the discussion is one that must be "responsive" to the risks involved.

Causation

Previously I had lamented the strict interpretation of causation used by the BCCA. However the SCC had this to say on the legal test to be applied in determining causation:

[36] The Court of Appeal’s reasons also suggest that it understood the trial judge to have improperly relied on Snell v. Farrell, [1990] 2 S.C.R 311, in order to draw an “inference of causation” (paras. 83-85). Snell stands for the proposition that the plaintiff in medical malpractice cases — as in any other case — assumes the burden of proving causation on a balance of the probabilities (ibid., at pp. 329-30). Sopinka J. observed that this standard of proof does not require scientific certainty (ibid., at p. 328); Clements, at para. 9. The trier of fact may, upon weighing the evidence, draw an inference against a defendant who does not introduce sufficient evidence contrary to that which supports the plaintiff’s theory of causation. In determining whether the defendant has introduced sufficient evidence, the trier of fact should take into account the relative position of each party to adduce evidence (Snell, at p. 330).

In paragraphs 39 and 40 of their decision, the SCC commented on the level of certainty required to prove causation:

...As a result, Holmes J. concluded that, although she could not be certain of the precise mechanics leading to cord compression, “[t]he only reasonable inference from all the evidence is that the mid-forceps attempt likely caused the cord compression that in turn caused the bradycardia” (para. 135).

[40] There was no palpable and overriding error in this conclusion.

Good decision?

This decision by the SCC is a victory for medical malpractice victims. The ruling rejects the unduly narrow interpretation of causation applied by the B.C. Court of Appeal. It confirms that certainty is not required to prove cauastion, and confirms that discussions regarding informed consent need to be responsive to the risks involved.

Want More Information?

If you or a loved one have suffered injuries that you think may be due to medical malpractice you can buy a copy of my book: Health Scare - The Consumer’s Guide to Medical Malpractice Claims in Canada: Why 98% of Canadian Medical Malpractice Victims Never Receive a Penny in Compensation on Amazon.com. All proceeds from book sales go to charity.

Free Copy to Blog Readers

But supporters who read this blog can contact me through this blog or call us toll free in Atlantic Canada 1-877-423-2050 and we will send you a copy at no charge.

Recently my wife and I took our family to Florida for Spring break. My son Liam made friends with Richard, from Texas. Liz and I had several interesting discussions with Richards parents.

One of the topics we discussed were the differences between the Canadian and American health care systems.

I hear complaints about the wait times of sick patients. Our American friends couldn't comprehend that patients in Canada might have to wait months, or even years for treatment.

However, I do not often hear complaints from Canadians about hospital bills, something our friends from the South know a lot about.

American health care costs

For those Americans who are uninsured, or underinsured, facing a mountain of medical bills is a real possibility. At the ‘top-notch’ hospitals in the U.S. patients are usually required to pay up-front.

“Asking for advance payment for services is a common, if unfortunate, situation that confronts hospitals all over the United States”, according to Julie Penne (Communications Manager for MD Anderson Cancer Center).

The total cost that Sean Recchi, a 42-year-old from Ohio, was told to pay in advance was $83,900 for the treatment plan and initial doses of chemotherapy. Due to his recent employment decisions, Sean had a basic health insurance plan that only covered treatments up to $2,000. per day, an amount way below the costs required by MD Anderson. A breakdown of Sean’s bill shows some extravagant markups, including an approximately 400% markup on the cancer drug Rituxan.

Steven Brill, author of the article Bitter Pill: Why Medical Bills Are Killing Us, makes an interesting observation:

“When we debate health care policy, we seem to jump right to the issue of who should pay the bills, blowing past what should be the first question: Why exactly are the bills so high?”

Brill goes on to note that in 2013 Americans are estimated to spend $2.8 trillion on health care, which is 20% of their GDP and, percentage-wise, approximately double most other developed countries.

Health care costs in Canada

The cost of medical care in Canada is mostly carried by government, rather than individuals. But does this mean that the total cost of care is cheaper? Or more expensive?

According to the Canadian Institute for Health Information, the total cost of healthcare in Canada is approximately $207 billion per year.

With just over 9 times the population, the USA spends just about 14 times the amount that Canada spends on health care every year. Canada spends 11.6% of our GDP on healthcare.

Imagine what the government of Canada would spend on healthcare if the hospital bills and other expenses were inflated as they are in the U.S.?

While we frequently hear complaints from Canadians about the state of the healthcare system, I think we have to be thankful that we don’t face Sean Recchi’s predicament.

Comments?

What do you think? Have an opinion on the healthcare situation in Canada? Let me know by leaving a comment below.

Pat Malone is a friend of mine and an excellent malpractice lawyer in Washington D.C. He's also a great source of information about issues pertaining to medical malpractice. That's why I frequently read his blog and just came across once of his recent posts Should Mehmet Oz Operate on You?

Who is Dr. Oz?

You would have to be living under a rock (or not own a television) not to know that Dr. Oz is an American surgeon who was featured on the Oprah show and now has his own television series – The Dr. Oz Show. His daily program focuses on medical issues.

So what does Dr. Oz have to do with medical malpractice law? As Pat Malone explains, Dr. Oz was a surgeon at the New York Presbyterian Hospital until his showbiz career took off. Since then, he operates there just one day a week.

From the OR to the Television Studio

The New Yorker wrote an article about Oz's television success. The article speaks about Oz’s qualifications and expertise and then delves into the oddity that is show business:

“Oz is an experienced surgeon, yet almost daily he employs words that serious scientists shun, like ‘startling,’ ‘breakthrough,’ ‘radical,’ ‘revolutionary,’ and ‘miracle.’ There are miracle drinks and miracle meal plans and miracles to stop aging and miracles to fight fat.”

Dr. Oz has moved from being a full-time surgeon at one of the top hospitals in the United States, to a daytime-television entertainer. There is no issue with his move into show-biz. The issue is whether he should be permitted to continue to perform life-threatening surgeries intermittently?

Pat asks whether Dr. Oz’s skills can stay up-to-date without the constant practice that other, full-time, surgeons receive.

10,000 Hours

In his book, Outliers, Malcolm Gladwell popularized the theory that it takes 10,000 hours to become really successful, or a world-class expert, at any specific task.

No doubt this theory applies to doctors as well – it is clear that thousands of hours are required for surgeons to master their skills.

Can You Forget How to Ride a Bike?

Perhaps Dr. Oz would say that surgery is like riding a bike. After spending thousands of hours in operating rooms, he can't forget what he has learned.

It's true that scientists have proven that you can't forget how to ride a bike.

But what if they stop practicing regularly, like Dr. Oz has? Do skills deteriorate if you are not practicing those skills every day? Surely conducting triple bypass surgery is not like riding a bike.

Surgery isn't Like Riding a Bike!

This study from Columbia University showed that surgical skills deteriorated within months and " fine motor skills, required to perform more difficult tasks, deteriorated more than skills needed for easier tasks."

Turns out that maintaining surgical skills isn't like riding a bike. What a surprise.

Continuing Education isn't Continuing Practice

Most medical associations and Hospital policies require doctors to mantain some level of continuing education. According to the New York Presbyterian Hospital website they have a continuing education program. The program is mostly clinical in nature and is provided to medical and surgical staff through the Columbia and Cornell Universities.

However, continuing education programs are usually meant to keep physicains informed about the latest developments in the profession. The programs are not meant to replace clinical practice: in other words, actually performing medical skills on a day-to-day basis.

Why I Wouldn't Want Dr. Oz to Operate on Me

I think it's fair to say that (fortunately) there is little chance I will ever need Dr. Oz's services. I have no doubt he is a skilled surgeon. But is he as skilled as he was before he began his television career?

Every hospital has their version of "Dr. Oz". A senior doctor who is highly skilled, and well respected. But perhaps the doctor has taken on other administrative duties that reduces their OR time. Maybe the doctor spends a great deal of time teaching medical students or travelling to lecture to other doctors at continuing medical education programs.

So my answer to Pat Malone's hypothetical question is that if I was undergoing complicated, life threatening surgery I wouldn't want "Dr. Oz" who is only in the operating room once a week. I would want the surgeon who is in the OR every day practicing their skills by actually treating and helping their patients.

Medical Malpractice?

Surgeons owe a duty to their patients be in-practice and ready-to-go when called upon to perform a surgical procedure.

If a surgeon’s ‘rustiness’ results the doctor failing to meet the expected standard of care and causes harm to a patient, that would almost certainly be grounds for an action against the surgeon. It would also raise a potential claim against the hospital for permitting the surgeon to perform the operation while out-of-practice.

What Do You Think?

If you had to undergo surgery would you want Dr. Oz to be doing the procedure? Please let me know in the comments.

A client of mine sent me a link to a story about a case in Manitoba. She thought I would be interested in the article because the situation was so similar to a case I was involved in a few years ago in New Brunswick.

According to the article, last month a four year old girl from Manitoba suffered a brain injury following botched dental surgery. Jairlyn Roulette was supposed to undergo a routine surgical procedure on October 11, but ended up with a permanent disability. Jairlyn needed some teeth capped, some fillings and an extraction and her dentist thought it would be best to subject her to general anesthetic.

In other words, Jairlyn was going to be unconscious throughout the dental procedure.

Half an hour into the procedure, Jairlyn went into cardiac arrest. Jairlyn survived the episode, but she has suffered brain damage as a result.

Apryl Roulette, Jairylyn’s mother, told CBC that her daughter was awake but unresponsive. She is worried that:

“She’s never going to be the same little girl running around, laughing, yelling talking. I don’t know if she’ll ever talk again.”

There is currently investigation underway into the incident. Apryl Roulette is reportedly considering her legal options regarding her potential to sue Children’s Dental World.

Déjà Vu

My heart goes out to Jairlyn and her family. Unfortunately, I know exactly what the family is going through because I have been through it with another family.

Five years ago I represented the family of Davey Paul, a little boy who went to George Dumont hospital to have some cavities filled. They did the procedure under general anaesthesia. He also ended up with terrible brain injuries.

Davey’s parents were facing millions of dollars in future medical expenses to care for Davey and they asked for my help. We pursued a claim against Davey’s dentist, the anesthesiologist and the hospital where the procedure was performed. The Moncton Times and transcript reported on the multimillion dollar payment to Davey.

Dangers of Anesthesia

Davey’s case made me realize the huge risks of general anaesthesia.

The Appeal of "Sleep Dentistry"

There is a trend these days to what some dentists are calling sedation dentistry or sleep dentistry. Google both term and you will see what I mean. In sleep dentistry, the dental procedure takes place while the patient is unconscious under general anesthesia.

Sounds good doesn't it? Go to sleep and when you (or your child) wakes up your teeth will be fixed.

Serious Complications

There are many possible complications from general anesthesia. Some of them not particularly serious or life threatening, but some of them are medical emergencies:

• Allergic reaction to anesthetic agents (potentially fatal);

• Cardiovascular problems;

• Depression of respiration (breathing);

• Aspiration causing choking (the risk is higher with children);

• Brain injury from hypoxia ( lack of oxygen);

• Embolism causing stroke;

• Death.

Given the real and potentially fatal risks associated with using general anesthetic, the experience I gained in Davey’s case makes me question why any dentist would do a procedure like this outside of a hospital that is properly equipped to deal with the type of medical emergency that occurred in this case.

Unnecessary risks?

It is common sense that the safest place to undergo any procedure under general anaesthetic is in a hospital where emergency equipment and personnel are available to assist if there are any complications.

In the United Kingdom, the British Dental Association (BDA) requires that general anaesthetic only be used in a hospital which has critical care facilities.

This is not required in Nova Scotia. Instead, the Provincial Dental Board of Nova Scotia permits the use of general anesthesia in a dental office by licensed dentists who have completed an accredited post-graduate anesthesia program.

The big problem, in my view, is not whether dentists have received the proper training to administer general anesthesia; although this is a legitimate concern.

Emergencies Require Critical Care

The real problem is whether dentists’ offices are properly equipped and whether dental staff have the medical training to deal with the medical emergencies that can arise if something goes wrong! As the British Association points out, when things go wrong under anesthesia getting proper care is critical, a delay of seconds can make the difference in preventing serious brain damage or death.

What do you think?

I was asked this question the other day by a new mom. As a medical malpractice lawyer in Halifax, I frequently get calls from parents throughout Atlantic Canada whose babies have suffered a birth injury.

Usually they want to know how the injury happened or if the injury was caused by anything the doctors or nurses did during the mom's labour and delivery. Sometimes they just want someone to explain the medical terms the doctors have used.

Erb's palsy and Brachial plexus injuries

Which brings me back to this mom’s question. I explained to her that Erb’s palsy is a type of injury to the brachial plexus (a network of nerves that runs from your neck to your shoulder and into your arm down to your hand).

If the brachial plexus nerves are stretched or torn, it can reduce movement and function in the hand, arm, and shoulder. Usually, the more serious the injury to the nerve the more significant the loss of function will be.

I explained to this young mom that Erb’s palsy is a specific type of injury to the brachial plexus nerve (called an avulsion) where the brachial plexus nerve is completely torn.

If the injury is not corrected the baby can lose some or all of the function in his or her arm.

What causes Erb’s palsy?

As I have already explained, Erb’s palsy is caused when the brachial plexus nerve is torn. The real question is what created the force that caused the brachial plexus nerve to tear?

Shoulder Dystocia

The vast majority of Erb’s palsy injuries are caused when a baby experiences shoulder dystocia during birth. Put simply, shoulder dystocia means that one (sometimes both) of the baby’s shoulders get “stuck” in the birth canal.

There are a variety of techniques that a nurse or doctor can use to successfully deliver a baby who experiences a shoulder dystocia.

However, in some cases, excessive force from pulling, vacuum extraction or the use of forceps can unnaturally stretch the baby’s shoulder to the point where the brachial plexus nerve is torn.

According to the Canadian Pediatrics Society, birth trauma is the most common cause of Erb’s palsy.

Most Babies Recover

Fortunately, 75% of infants completely recover full function of their arm within the first month after birth. However, 25% of babies who have suffered a brachial plexus injury go on to experience some form of permanent impairment and disability.

More Information

I gave this new mom a copy of the article I have written about the Erb’s palsy injuries.

I also thought it might be helpful for her to read “The Facts About Erb’s Palsy”, an article written by a young lady who suffered an Erb’s palsy injury during her delivery.

Finally, I suggested she take a look at Spencer’s Birth Injury , a blog published by two new parents of a little fellow who suffered an Erb’s palsy injury during his delivery.

Have any questions? You can cal me toll-free in Atlantic Canada at 1877-423-2050 or you can contact me through our website.