Halifax Medical Malpractice Lawyer Blog

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" »

Apologizing Reduces Mistakes

A study performed at Montreal’s Jewish General Hospital has found that apologizing for mistakes may actually help reduce the incidents of mistakes.

Full Disclosure

Three years ago the hospital implemented a “full disclosure policy” regarding mistakes make during patient care. The policy of admitting mistakes resulted in a 50% drop in “adverse incidents” (otherwise known as medical errors) over the past 3 years.

Provincial health care officials in Quebec are looking to use the hospital’s policy as a model to create a province wide registry of adverse incidents.

Admitting Mistakes Reduces Lawsuits

I have already talked about how admitting medical mistakes leads to a reduction in the number of medical malpractice lawsuits.

Admitting Mistakes Reduces Mistakes?

However, this study suggests the admitting medical errors may actually serve to reduce the number of errors themselves!

I’m not sure what that might account for the reduction. Perhaps when doctors, nurses and healthcare staff don’t feel compelled to maintain the “code of silence” they are more likely to report dangerous medical situations so that the situations can be corrected which, in turn, prevents further problems.

Bernie Weinstein, a patient advocate at Jewish General Hospital summarized the issue:

…to be told “don’t worry; its ok” is not the answer…what you really want to hear is, “we know what went wrong, and we are doing something. And we apologize. It won’t happen again because we are going to do something to ensure it doesn’t”

So what do you think? If you or a family member suffered a medical error and the doctor or hospital apologized immediately would you be less likely to sue? Do you think apologizing for medical mistakes can actually help reduce mistakes?

Continue reading "Apologizing for Mistakes Reduces Mistakes!" »

Nurses Duty to Ensure Appropriate Care

A recent decision from Ontario has found that nurses have a duty to ensure patients receive appropriate care from a responsible physician when faced with a medical emergency.

The court found that the duty to ensure that the patient is seen by a appropriate physician exists even when the patient has already been seen by a resident physician.

Failed to Meet Standard of Care

In Milne v. St. Joseph’s Health Centre, Justice Morissette found that an experienced obstetrical nurse and an obstetrical resident both failed to meet the standard of care expected of a reasonable nurse and physician during the birth of Anne Louise Milne’s son Jessy.

Jessy suffered catastrophic brain damage due to a premature separation of Ms. Milne's placenta from her uterus, resulting in internal bleeding. Ms. Milne was admitted to the delivery unit of the St. Joseph’s Health Centre at 1:20 PM on August 18, 1997.

Nurse Suspected Medical Emergency

The obstetric nurse who took her vital signs and applied the fetal heart rate monitor strongly suspected that Ms. Milne had suffered a placental abruption. The nurse testified at trial that she understand that a placental abruption was a medical emergency and might require a cesarean section in order to prevent brain damage due to the lack of oxygen to the fetus.

At 2:00 PM Ms. Milne was assessed by an obstetric resident who performed an ultrasound which showed that the fetus was not breathing or moving.

Doctor Suspected Medical Emergency

The resident physician also suspected a placental abruption but neither one of them discussed their concerns with the other nor did they consider an appropriate course of action.

No One Talked to Doctor in Charge

The nurse testified that she expected the resident physician to contact the attending obstetrician in charge of Ms. Milne to determine her appropriate treatment.

Approximately 35 minutes after the resident examined Ms. Milne the obstetric nurse finally asked another physician to assess Ms. Milne. The physician immediately diagnosed Ms. Milne’s condition and ordered a emergency cesarean section.

Justice Morissette found that delivering baby Jessy even 10 minutes earlier would have prevented his severe brain damage.

Lack of Communication Can Have Catastrophic Consequences

In many hospitals nurses and physicians work in what is called a “team environment”. This case emphasizes the need for communication between team members. It also emphasizes the importance of coming up with a proposed plan of treatment with every patient.

Continue reading "Nurses Have a Duty to Ensure Doctors Meet the Standard of Care" »

One of the reasons why medical malpractice claims are so complicated, and so expensive, is because they require the testimony of medical experts, usually several medical experts to testify about both legal issues such as:

1. The standard of care;
2. Whether there was a breach of the standard of care;
3. Whether the breach resulted in the patient’s injuries;
4. What is the nature of the plaintiff’s injuries?

My book, The Consumer’s Guide to Medical Malpractice Claims in Canada, discusses the use of medical experts in medical malpractice claims and goes into detail to explain why you cannot win a medical malpractice case without solid medical experts on your side.

A recent case in Bridgewater, Nova Scotia simply proves my point.

In Vaughn v. Hayden, Justice McDougall of the Nova Scotia Supreme Court granted the defendant’s motion to strike out the plaintiff’s statement of claim.

Defendants Apply to Strike Out Claim
The defendants made a motion for Summary Judgment. Basically, the defendants asked the court to dismiss the plaintiff’s claim on the basis that there was not genuine issue for trial.

Defendant Doctor Had Expert Reports

The defendant provided the court with expert medical opinions from 2 doctors who testified that Dr Hayden, did not breach the standard of care and that any injuries that the plaintiff Mr. Vaughn may have suffered were not caused by negligence on the part of Dr. Hayden.

Plaintiff Didn't Have Any Expert Evidence

The plaintiff filed his own affidavit opposing the motion.

Justice McDougall struck out the plaintiff’s claim and stated:

“Furthermore, it would be a rare medical malpractice case that would have any real chance of success without some kind of supporting expert evidence establishing the breach of the standard of care and the causal connection between the negligent treatment and the resulting harms suffered”

I have been representing victims of medical malpractice for 19 years. It has always been my practice to recommend that a plaintiff get a supporting medical-legal opinion from a recognized expert confirming that there are solid grounds for a medical malpractice claim before filing a medical malpractice lawsuit.

This case just proves my point. You can't win a medical malpractice claim without expert evidence and you better know if the experts support your claim before you file a lawsuit.

Continue reading "Medical Malpractice Claim Struck Out for Lack of Expert Evidence" »

Court Approves Multi-Million Dollar Settlement

The Supreme Court of Nova Scotia has approved a settlement in a medical malpractice case awarding 4.5 million dollars in compensation to a child who suffered cerebral palsy as a result of injuries suffered during his birth.

Very Complex Claim

In the decision of Saulnier v. Tynski et. al, Justice Patrick Duncan said in his decision:

“Let me say that this obviously was a very complex medical malpractice claim.”

Payments for Life
Justice Duncan approved the settlement of 4.5 million dollars. 56% of the funds are being placed in a structured settlement to provide periodic payments to Jacob Saulnier for the rest of his life.

Parents Compensated for Extraordinary Services

The court also approved payment of $125,000.00 each for the child’s parents to recognize the burden that has been placed on them for the extraordinary services the now have to provide to their child to care for him as a result of his injuries. Justice Duncan said:

“I accept that these parents have already undergone a lot of stress and that they probably will continue to do so in trying to provide for their son, and that the settlement should do what it can accomplish in terms of trying to minimize the additional stressors.”

Medical malpractice cases are among the most complicated, time consuming, and risky kinds of personal injury litigation.

There is tremendous debate within the medical and scientific community as to the causes of cerebral palsy. Establishing causation in a medical malpractice claim is often a huge, sometimes insurmountable, hurtle.

No amount of money will ever change what happened to young Jacob Saulnier. However, this is a tremendous result in what was a challenging and complicated case.

Continue reading "$4.5 Million Award for Child Who Suffered Cerebral Palsy Due to Birth Trauma" »

Many people know a lawyer who handles the routine legal matters that most families have to deal with from time to time; buying and selling a house, preparing a will, dealing with speeding tickets, maybe even routine personal injury claims.

So when you or a family member has been injured by a doctor or a hospital your family lawyer is probably the first person you think of to turn to for advice.

But is your family lawyer the right person for the job? Maybe, maybe not. Medical malpractice is a very specialized area of the law.

What to Look For

While it is not necessary for a medical malpractice lawyer to have a medical degree, it is helpful for your medical malpractice lawyer to have a familiarity with various medical specialties and knowledge of human anatomy.

You want your medical lawyer to be familiar with the defence lawyers that are going to be involved in defending your malpractice claim. You also want your lawyer to have experience in handling complicated medical malpractice cases.

Ask your family lawyer if he or she handles medical malpractice cases on a regular basis. Dealing with personal injury cases, or car accident claims does not necessarily provide the kind of experience you will require in order to successfully prosecute a medical malpractice claim.

Frequently I am contacted by medical malpractice victims or their family members who want to settle out of court. Sometimes the lawyers file medical malpractice claims in the hopes that the doctor’s lawyers will settle quickly in order to avoid the time and expense of a trial. That type of strategy will fail miserably in a medical malpractice case. Why? Simply because most doctors in Canada are defended by the Canadian Medical Protective Association (CMPA). The CMPA is a non-profit defence fund whose sole purpose is to “vigorously defend” any and all malpractice claims brought against doctors in Canada.

Medical malpractice claims rarely settle and when they do it is usually just shortly before trial and after the plaintiff has spent tens of thousands of dollars for experts.

Just remember, your family lawyer may be a great lawyer but you should think long and hard about whether or not you want to him or her to handle your medical malpractice case. Ask a lot of questions so you can make an informed decision.

Continue reading "Should I Let My Family Lawyer Handle My Medical Malpractice Claim?" »

Continuing Treatment

Continuing treatment is a term that lawyers use to describe the length of time that you have continued to receive treatment from your doctor. In many cases, after a patient receives negligent treatment that causes an injury they continue to see their doctor or be treated in the hospital for the effects of the negligence medical care. Why is this important?

Statute of Limitations

Every province has a “Statute of Limitations” which is a time limit for filing certain kinds of claims. Generally, the time that you have to file a medical malpractice claim starts from the date the malpractice occurred.

Time Limit May Be Extended

However, the court may decide that the time to file your medical practice claim started to run, not from the date of the original malpractice, but from the last date that you received treatment from your doctor for the medical condition or complaint that was caused by the medical malpractice.

For example, if a surgeon perforates your bowel during surgery on January 1 and you suffer complications and have to undergo another surgical procedure on March 1 the court may consider that the time limit for filing a claim started to run not on January 1 but on March 1 because you were receiving continuing treatment for the medical problem caused by the negligence.

Claim May Be Barred

Once the statute of limitation runs out your right to file a medical malpractice can be barred forever. That is why it is very important for your medical malpractice lawyer to investigate the specifics timing of all of your doctor or hospital visits. This type of detailed investigation will help establish whether there was “continuing treatment” that may extend the time limit of filing your medical malpractice claim.

Continue reading "What Is “Continuing Treatment” And Why Is It Important To My Medical Malpractice Claim? " »

The Ontario Court of Appeal recently released its decision in Rowlands v. Wright allowing an appeal by a surgeon who had been found liable for medical malpractice at trail.

Dr. Wright performed laparoscopic gallbladder surgery on Ms. Rowlands to remove her gallbladder. Dr. Wright cut the patient’s common bile duct mistakenly believing it was the cystic duct. Ms. Rowlands brought a medical malpractice claim seeking compensation from Dr. Wright and was successful at trial.

In determining whether Dr. Wright had met the standard of care required of a reasonably competent surgeon the trial judge stated:

“...a finder of fact may use common sense in assessing the surgeon’s conduct as he followed the standard medical practice described by the experts.”

The trial judge determined that, as a matter of common sense, a doctor should make sure they are aware of what they are cutting when surgery is performed.

Standard of Care is is not Common Sense

The Court of Appeal ruled that expert’s evidence at the trial determined that the standard of care required a surgeon to obtain a “critical view” of the area being operated on. It is not necessary for the surgeon to be certain exactly what organ they are cutting.

As a result, the Court of Appeal dismissed the finding of liability against the defendant and a new trial was ordered.

I have clients come to see me who are certain what happened to them is the result of medical malpractice. Sometimes when I hear their stories it seems to me that, based on common sense, the doctor must have done something wrong.

However, in order to win a medical malpractice claim, the plaintiff must establish, on the balance of probabilities, what the standard of care required of the doctor actually was, that the doctor breached the standard of care, and that the breach is what caused the plaintiff’s injury.

I have had many cases where independent neutral experts have told me that, despite what seems to be “common sense” the standard of care was not breached and therefore there was no medical malpractice. This case simply reinforces the importance of getting an appropriate expert opinion early on in the preparation of a medical malpractice claim.

Continue reading "“Common Sense” Does Not Apply In Medical Malpractice Claims" »

Highest Cancer rates in Canada

Nova Scotia has the highest cancer rates in the country. According to the Canadian Cancer Society, 40% of Canadian women and 45% of men will develop cancer during their lifetime. I have been asked to review dozens of cases where clients have suffered various forms of cancer which they believe went undiagnosed by their doctor.

What Questions Should You Ask?

So what kind of questions do you need to ask to know whether you have a medical malpractice claim for failure to diagnose your cancer?

When I review a client’s claim involving someone who was injured (or died) from cancer I need to know the answers to the following questions:

Does anyone in your family have a history of cancer?

In order to properly diagnose a patient, doctors must take a patient’s history. That includes details of any significant illnesses that may run in the patient’s family. A patient whose family members have been diagnosed with or died from cancer are at higher risk of developing cancer themselves.

Therefore, if you doctor knows that you have other family members who died from cancer (or failed to ask you about this issue) your doctor may have been negligent in failing to take a proper medical history.

Were you under the care of a doctor when you think your cancer should have been diagnosed?
Unless you were seeing a doctor on a regular basis during the time frame that you were exhibiting symptoms that should have led to the diagnosis of your cancer, it will be next to impossible to establish that your doctor was negligent.

In other words, if you didn't see your doctor, how can your doctor be negligent in failing to diagnose your cancer?

Did you have any symptoms that should have warranted an x-ray?

Did you tell your doctor about any complaints or symptoms you were experiencing that should have led your doctor to request further follow-up tests that could have revealed your cancer?

What type of cancer were you diagnosed with?

This question is extremely important because there are certain types of cancer that are very treatable if they are caught early enough. In other words, if your cancer was diagnosed promptly, you may have been able to receive treatment that could have eliminated the cancer.

On the other hand, there are certain types of cancer that are almost invariably fatal. For example, by the time that a patient exhibits obvious symptoms of pancreatic cancer it is almost always too late to administer effective treatment.

What stage of cancer were you diagnosed with?

The stages of cancer are classified from stage 0 (being the least severe) to stage 4 (the most severe and deadly). If your cancer could have been diagnosed when it was in the earlier stages then it is possible that it could have been treated and eliminated.

How much time went by from the time you should have been diagnosed until the time a proper diagnosis was made?
This is one of the most important questions that we will need to answer in any case involving failure to diagnose cancer.

If a doctor fails to properly diagnose cancer but the negligence results in a delay of days or even weeks before treatment is administered, it is not likely that your medical negligence claim will be successful.

On the other hand, if the failure to diagnose results in a delay in treatment of months or years, it is far more likely that the patient will be able to successfully establish a claim for negligence.

Would the outcome be different?

Have you asked your cancer specialist (oncologist) if your treatment would be different, or your chances of recover better, if the cancer had been detected earlier?

Different types of cancer have different growth patterns and grow at different speeds. If you have a slow growing tumor, and made complaints that suggested the need for further diagnostic tests and x-rays, you may have the basis for a medical malpractice claim for failure to diagnose your cancer.

What is your prognosis?

What do the doctors think about your chances of survival and the treatment opinions that are available to you?

Are you a smoker?

This question is relevant for two reasons. Smokers are at an increased risk of developing lung cancer. That means that doctors should be looking for symptoms that may point to the possibility of lung cancer.

On the other hand, if you continued to smoke after being diagnosed, the defendant may argue that you decreased your chances of recovery.

What Happens Next?

After reviewing all of your medical records, x-rays, CAT scans and other relevant information we will need to have a medical expert review your records.

The medical expert will provide a medical-legal opinion on whether you doctor failed to meet the standard of care expected of a reasonably competent doctor and whether the breach of the standard of care caused or contributed to your cancer.

Only after all this is done will we know if you have reasonable grounds for a medical malpractice claim.

Continue reading "Failure to Diagnose Cancer: Do I Have a Medical Malpractice Claim?" »

ACOG Issues New Practice Guidelines

In the July 2009 issue of Obstetrics and Gynecology, the American College of Obstetricians and Gynecologists (ACOG) issued practice bulletin No. 106: Intrapartum Fetal Heart Rate Monitoring.

The new bulletin is the most recent statement from the College on interpretation of fetal heart rate tracings and management of labour.

Electronic Fetal Monitoring (EFM) has grown dramatically. In 1980 it was used on 45% of pregnant women to more than 85% of pregnant women in 2002. However, one of the authors of the study, Dr. George Macones, has stated that:

“Although EFM is the most common obstetric procedure today, unfortunately it hasn’t reduced perinatal mortality or the risk of cerebral palsy.”

Unfortunately, for those of us who represent children who have been injured during birth, it appears that the bulletin has been drafted to be even more protective of the practice of physicians than past clinical guidelines on the same subject.

While the data for the study may have been collected for the purpose of providing clinical guidance to obstetricians in managing labour, I have no doubt that the guidelines will be used in future medical malpractice claims to establish the standard of care for how doctors should interpret and react to different fetal tracings.

The revised guidelines have created a 3-tier classification system for EFM tracings:

Category 1 tracings are classified "normal" and do not require specific intervention.

Category 2 tracings are classified "indeterminate". They require further investigation and surveillance.

Category 3 tracings are classified "abnormal" and require immediate intervention. For example, providing oxygen to the mother, changing her position, stopping labor stimulation, treating maternal hypotension, or initiating prompt delivery if the tracings do not return to normal.

The guidelines contain a number of clinical recommendations including the following:

The false-positive rate of EFM for predicting cerebral palsy exceeds 99%.

The use of EFM is linked to higher rates of both vacuum and forceps operative vaginal delivery, as well as of cesarean delivery for abnormal FHR patterns and/or acidosis.

Recurrent variable decelerations on the FHR tracing should lead to consideration of amnioinfusion to relieve umbilical cord compression.

One of the most controversial statements in the study is that:

"Re-interpretation of the FHR tracing may not reliable; especially once the neonatal outcome is known.”

In other words, the guidelines suggest that the medical opinions of experts who have been retained to help injured plaintiffs shouldn’t be accepted because their evidence "may not be reliable".

The Guidelines fail to point out that the opposite is also true: re-interpretation of tracing may be reliable. It depends on the facts of each particular case.

Simply put, the guidelines suggest that medical experts are not entitled to “second guess” the opinion of the doctor in charge of the delivery.

The plaintiff in a medical malpractice claim bears the burden of proof. The plaintiff must provide expert evidence to establish that the defendant doctor(s) were in fact negligent!

These guidelines appear to be a transparent attempt to limit the evidence of experts who are willing to testify on behalf of plaintiffs.

It remains to be seen what weight, if any, the courts place on the guidelines.

Continue reading "Birth Injuries and Fetal Heart Rate Monitoring: New Guidelines Make it Harder to Sue?" »