Halifax Medical Malpractice Lawyer Blog

You Lose, You Pay!

In Canada, the courts have what is known as a “loser pays” rule. What that means, in most cases, is that the person that loses a lawsuit has to pay some (or all) of the legal fees and expenses of the person that wins the lawsuit.

Discourages Frivolous Lawsuits

The theory behind the “loser pays” rule is that it is supposed to discourage frivolous lawsuits. In other words, if you know you will have to pay the defendant’s legal fees if you lose, you may think twice before filing a lawsuit that doesn’t have merit.

Discourages Legitimate Claims?

Although the idea of the loser pays rule is to discourage frivolous lawsuits, in practice it actually has the effect of discouraging people with legitimate lawsuits from pursuing their claims.

Assume, for example, that you have been seriously injured as a result of medical malpractice. You can’t work, your bills are piling up, and you can’t pay your mortgage. Then your lawyer tells you that if you file a lawsuit and lose, you might have to pay the defendant doctor or hospital tens of thousands of dollars.

What are the chances that you are going to proceed with your lawsuit? Pretty slim, right?

Injured Patients Can't Take the Risk

I have had dozens of cases over the years where impartial medical experts advised me that my client’s injuries were the result of medical malpractice. But, the injured patient decided not to file a medical malpractice claim because they were afraid that if they lost the lawsuit, they might be ordered to pay legal costs to the doctor that they had accused of medical malpractice.

Not a Level Playing Field

The sad fact is that the C.M.P.A., the organization that defends most doctors in Canada, has almost unlimited financial resources compared to injured patients who have little or no ability to finance the significant costs of medical malpractice litigation.

Being ordered to pay thousands of dollars in legal costs to a successful plaintiff when defending a negligent doctor is a drop in the bucket to the C.M.P.A.

Careful Case Selection Critical

I am extremely selective in the medical malpractice cases that I agree to take on. I will not agree to represent a patient in a medical malpractice claim unless I am convinced that their claim has merit and that the injured patient (or their family) has a reasonable chance of successfully recovering compensation for their injuries.

Severely Injured Patients Have No Choice

Deciding to file a medical malpractice lawsuit is one of the most important, and difficult, decisions that my clients will ever make. But most of my clients who have been catastrophically injured as a result of medical negligence literally have no choice. They face huge medical bills and may never be able to work. Filing a medical malpractice claim is the only hope that they have of ever receiving compensation, and justice, for what happened to them.

Continue reading "Canada’s “Loser Pays” Rule Not Fair to Medical Malpractice Victims" »

Why Did You Write The Book?

I get asked that a lot. There's a ton of work that goes into writing a book about medical malpractice claims. Most books about the topic are written by lawyers, for lawyers, and they are pretty dry reading.

I wanted to write a book that the average person could pick up and read and come away better educated and informed about the medical malpractice claims process and what is involved in filing a medical malpractice claim.

What Makes a Good Doctor?

The British Medical Journal once surveyed people in 24 countries around the world and asked them: “What makes a good doctor?”

The answers included qualities like compassion, understanding, honesty, humanity, competence, commitment, empathy, respect, creativity and a sense of justice.

What Makes a Good Lawyer?

I believe that the qualities shared by great doctors are also traits shared by great lawyers. Especially, a sense of justice.

Since graduating from law school I have devoted my career to trying to help people who truly need help, people looking for fairness, people who need justice.

That is why I do medical malpractice litigation and that is why I wrote The Consumer’s Guide to Medical Malpractice Claims in Canada. To provide information to people who have been seriously injured as a result of medical malpractice. To help people who have been betrayed by the person or persons that they had to trust the most, their doctor, their nurse, their health care provider.

Most Victims Never File a Claim

Every research study that has been done about medical malpractice claims has concluded that most victims of medical malpractice never contact a lawyer or file a claim.

What You Need to Know

You may not actually have the grounds for a medical malpractice claim, but you do need to have certain important information to know if you have a potential claim and what you need to do to protect your rights if you have been a victim of medical malpractice.

I wrote The Consumer’s Guide to Medical Malpractice Claims in Canada so that people who may have suffered a loss as a result of medical malpractice can have this information.

Continue reading "The Consumer’s Guide to Medical Malpractice Claims in Canada" »

You may have a medical malpractice claim if you have been injured as a result of a preventable error or negligent care while receiving medical treatment.

Most Medical Injuries Preventable

A famous study by Harvard Medical School determined that over half of all injuries caused by medical mismanagement (in other words, not caused by the patient’s initial injury or disease) were preventable, and another quarter of those incidents were caused by negligence.

Canadian Medical Association Report

A report published by the Canadian Medical Association (CMA) Journal confirmed the findings of similar studies in the United States, Australia, the United Kingdom, Denmark and New Zealand.

The C.M.A. study concluded that:

1. As many as 24,000 patients die each year due to “adverse events” (doctor’s code word for a bad result or a mistake).

2. 87,500 patients admitted annually to Canadian acute care hospitals experience an adverse event.

3. 1 In 13 adult patients admitted to a Canadian hospital encounter an adverse event.

4. 1 in 19 adults will potentially be given the wrong medication or wrong medication dosage.

5. 37% of adverse events are “highly” preventable.

6. 24% of preventable adverse events are related to medication error.

5 Million Medical Mistakes

A report by the Canadian Institute for Health Information indicated that nearly ¼ of Canadian adults (that’s 5.2 million people!) reported that they, or a member of their family, had experienced a “preventable adverse event”. In other words, a medical error.

So there you have it, nearly ¼ of all Canadians, or a member of their family, have experienced a preventable adverse event that may be the result of medical malpractice.

Mistakes May Not Be Negligence

Not all mistakes are the result of negligence and just because a doctor was negligent does not necessarily mean you have a viable medical malpractice claim. That’s why I wrote The Consumer’s Guide to Medical Malpractice Claims in Canada. So that patients and their family members who may have suffered an injury as a result of medical malpractice can learn what they need to know to determine if they have a legitimate medical malpractice claim.

You can get a free copy of my book by contacting me through this blog or by calling my office toll-free 1-877-423-2050.

When someone dies unexpectedly, or suffers a serious but unexpected injury, while they are in a hospital or under the care of a doctor, it is human nature to assume that the hospital or doctor must have made a mistake. Many clients come to me and say: "How could this have happened? The doctor must have screwed up!"

We all want to believe that when something really bad happens to good people, someone will be held responsible. But that is not always the case.

Burden of Proof

The plaintiff (you) has the burden (responsibility) of proving your claim.

Beyond Reasonable Doubt

Anyone who has watched Law & Order or similar shows on television has heard the term: “proof beyond reasonable doubt”. But that is not the burden that applies in a medical malpractice claim. That is the burden of proof that applies to criminal prosecutions.

Balance of Probabilities

In a medical malpractice compensation claim you have the burden of proof: “on the balance of probabilities”. In other words, is it more likely than not that the doctor (or nurse or other health care provider) was negligent and did that negligence cause your injuries?

Scales of Justice?

The easiest way to understand this burden is to consider a pair of scales. All of the evidence for your claim is placed on one side of the scale. All of the evidence against your claim is placed on the other side of the scale. As long as the scales tip to the side for your claim, even a little bit, then you have met the burden of proof on the balance of probabilities.

What Does OJ Have to Do With The Burden of Proof?

OJ Simpson is a living example of the difference between the criminal and civil standards of proof. As everyone in the world now knows, O.J. Simpson was acquitted of murdering his wife, Nicole Simpson and her friend Ron Goldman because the jury did not believe that the prosecutors had proven the criminal charges beyond reasonable doubt.

However, when the Goldman family sued O.J. Simpson civilly for causing Ron Goldman’s death, the jury decided that the family had proved on the balance of probabilities that O.J. Simpson was responsible for Ron Goldman’s death.

Continue reading "Medical Malpractice Claims: The Burden of Proof and O.J. Simpson" »

Most of my medical malpractice clients have suffered catastrophic injuries that prevent them from being able to return to work or, in the case of infants and children, will prevent them from ever being able to work.

Economic Losses from Medical Malpractice

There are 2 ways to calculate economic losses suffered as a result of medical malpractice. The court will have to determine whether you have suffered an actual income loss or whether you have suffered a diminished earning capacity.

Income Loss from Medical Malpractice

If your are injured as a result of medical malpractice and your injuries prevent you from being able to work for days, weeks, months, or permanently then you can make a claim for the actual income you have lost as a result of the medical malpractice.

Income loss includes both:

Past Income Loss: You are entitled to be compensated for your actual income loss up to the date of settlement or trial. Usually this loss is one that is capable of being calculated fairly accurately. For example, if you were being paid $500.00 a week and you can't work for 4 weeks as a result of your injuries, you are entitled to receive 4 weeks pay ($2,000.00) to compensate you for your past loss of income.

Future Loss of Income: If your injuries are going to prevent you from being able to work in the future, you are also entitled to be compensated for that loss. Unfortunately, there is no such thing as a crystal ball. Claims for future loss of income can be difficult to calculate with precision. No one knows, for sure, what the future will hold.

When valuing a claim for future loss on income, the court will have to consider whether your injuries will prevent you from being able to work for two months, two years or forever.

Calculating claims for future income loss usually requires us to retain the services of an actuary or an economist who are experts in calculating past and future income loss claims. These experts take into account factors like cost of living increases or raises that you would be entitled to receive during your career, the normal retirement age for persons of similar employment, the pension benefits you would expect to receive on retirement, and a host of other factors.

Diminished Earning Capacity:

In some cases, the evidence may prove that you, or your family member, will never be able to work. However, we may not be able to calculate exactly what that loss will be. For example, when a 3 ½ year old child suffers a severe brain injury, who is to say whether that child would have grown up to be a plumber, a doctor, or a rock star?

In cases where the exact amount of the future income loss is not certain, the court will consider awarding, compensation for what is called “diminished earning capacity”.

Everyone’s ability to work is an asset. In other words, your physical abilities, education, training and experience are all assets that provide you with the opportunity to earn an income. If any or all of those abilities have been limited or reduced to some extent by your injuries, you may be entitled to an award for diminished earning capacity.

Again this type of claim usually requires us to hire experts to calculate exactly how reduced your ability to work is and to what extent your ability to earn income has been diminished.

Continue reading "Income Loss in Medical Malpractice Claims" »

The goal of the court in any claim for compensation for personal injuries is to try and put the injured person (or their surviving family members) in the same position they would have been had the negligence (malpractice) not occurred.

Money cannot replace the loss of a loved one or truly compensate for the loss of a limb or a catastrophic injury. But the courts try to provide a fair and reasonable measure of financial compensation to innocent victims who have been injured as a result of the negligence of others.

These basic principles apply to all compensation claims, including medical malpractice claims.

Non-Pecuniary Damages: Pain and Suffering

A non-pecuniary claim is one that does not result in a direct out of pocket financial loss but is still considered to be worthy of compensation. Non-pecuniary damages are sometimes referred to as compensation for “pain and suffering” but they cover any non-financial loss.

A better way to describe non-pecuniary damages is that it is compensation for pain and suffering and loss of amenities of life. In other words, the court tries to compensate the injured person for their pain and the loss of all of the enjoyable activities that they were able to perform before they were injured.

How Do The Courts Calculate Pain and Suffering?

There is no such thing as a “pain-o-meter”. A medical malpractice victim cannot be hooked up to a machine that prints out the financial value of their pain. What a judge (or jury) does in determining your compensation for pain and suffering in a medical malpractice claim is use their experience and discretion to consider how your injuries have limited your ability to function, your normal day to day activities, your hobbies or your ability to work?

Cap on Compensation Claims

The Supreme Court of Canada has placed a cap on the amount of compensation that medical malpractice victims can receive for non-pecuniary damages. The cap was set in 1978 at $100,000.00, taking inflation into account, it is now generally accepted to be around $300,000.00.

But that amount is only paid to the most severely injured victims. If you are considering a medical malpractice claim for non-pecuniary damages, it is important to have an experienced lawyer assisting you to ensure that you provide the court (or the jury) with all of the relevant information that they will need to consider when assessing your claim for “non-pecuniary damages”.

Continue reading "Medical Malpractice Claims: What can I get compensated for?" »

The latest edition of my book, The Consumer’s Guide to Medical Malpractice Claims in Canada: Why 98% of Canadian Medical Malpractice Victims Never Get a Penny in Compensation, is now on its way back from the printers.

You can get a copy of the book by contacting me through this blog. However, I am going to be posting excerpts from the book over the next few weeks to give you a taste of the information contained in the book.

Lynn Butler sent me a very kind note after reading a copy of the book. Here is what she had to say:

“I found The Consumer’s Guide to Medical Malpractice Claims most helpful. I would definitely recommend the guide to anyone seeking information: it was very informative, factual and easy to read. I would certainly recommend the guide to anyone wondering if they have grounds for a medical malpractice lawsuit.”

Jeff Baggaley contacted me about a pediatric medical malpractice claim. After reading the book he sent me a note to say:

“I have read your book on pursuing a malpractice claim in Canada. Let me say at the outset that your book is an invaluable and excellently written introduction to essential information which the possible claimant needs to know.

As you say, it saved me a lot of time for I am able to read it, and re-read it, as time permits. I very much appreciate the service your book provides.”

If you think you or a family member may have been a victim of medical malpractice you can contact me through this blog for a free copy of my book or you can call me toll free at 1-877-423-2050.

Caps on Medical Malpractice Compensation

Several jurisdictions in the United States have a cap on the amount of compensation that victims are entitled to receive in their medical malpractice claims. The amount of the cap, and what is capped, varies state by state.

No Malpractice Caps in Canada (sort of)

In Canada, while there are no caps specifically targeted at medical malpractice claims, the Supreme Court of Canada has created a cap that applies to all serious personal injury claims.

Since most people who contact me for medical malpractice claims have suffered catastrophic injuries, the Supreme Court of Canada’s ruling effectively caps the amount of compensation they are entitled to receive.

Supreme Court Caps Claims

In 1978 in a landmark case known as Teno v. Arnold the Supreme Court of Canada ruled that no matter how seriously injured you are the maximum amount for compensation you can receive for non-pecuniary damages (what is commonly referred to as “pain and suffering”) is $100,000.00.

Cap Supposed to Lower Insurance Rates

The reasoning behind the cap was primarily to prevent insurance rates from skyrocketing and becoming unaffordable for consumers. Unfortunately there was little evidence before the court that insurance rates would be effected by a compensation cap.

Taking inflation into account the amount capped on pain and suffering is currently considered to be slightly more than $300,000.00. But that maximum amount is only paid to the most catastrophically injured victims, persons who suffered quadriplegia, severe brain damage and similar injuries.

Victims Often Don't Get Full Award

Even plaintiffs that receive awards that seem large often never see the amount decided by the judge or jury. Many personal injury compensation awards are dramatically reduced on appeal. These reduced or reversed judgments are almost never reported by the media.

But doctors in Canada are not insured by for profit insurance companies like in the United States. In Canada malpractice coverage is provided by a non-profit defence fund called the Canadian Medical Protective Association. Consumers don't pay for this insurance, so rising rates are not an issue.

Given the enormous costs of pursuing a medical malpractice claim, the Supreme Court of Canada’s cap on compensation presents a real barrier to fair recovery for innocent victims of medical malpractice.

Is It fair?

What do you think? Is it fair that compensation for malpractice victims is capped? When a patient is injured as a result of a doctor's negligence is it fair that the victim's compensation is capped so that the doctor may have lower insurance premiums?

Continue reading "Medical Malpractice Compensation Caps: The Difference Between the United States and Canada" »

Hospital Infections Widespread Problem

Infections acquired while getting healthcare for an unrelated condition is becoming a common, and dangerous, problem in hospitals across North America.

MRSA (Methicillin-Resistant Staphylococcus Aureus) has been in the news a lot. MRSA is a potential deadly infection caused by bacteria that has become resistant to most antibiotics. For example take a look at this news story.

Recent medical studies show that many healthcare providers do not follow proper sanitary procedures designed to reduce infection when treating patients.

However, because hospitals are full of sick people, they are also full of bacteria and viruses. Therefore, it is very difficult to prove that the virus or bacteria that infected you, or your loved one, was the result of the negligence of your doctor or hospital personnel or simply the result of being exposed to bacteria or virus in the hospital environment.

In order to determine if the infection that you or your loved one acquired was a result of medical malpractice we need to conduct an investigation to answer a number of questions:

What was the medical condition that you were being treated for?

What was the bacteria or virus with which you were you were infected?

Was their an actual mistake which led to the infection?

A careful examination of the facts and medical records as well as a medical opinion from an epidemiologist will help determine if your hospital acquired infection was a result of medical malpractice.

Continue reading "Hospital Acquired Infections: Is it Medical Malpractice? " »

"What's the difference between Misdiagnosis and Failure to Diagnose?"

The majority of medical malpractice claims that I am asked to review involve either a misdiagnosis of a medical condition (recognizing the symptoms but getting the diagnosis wrong) or the failure to diagnose a medical condition (not recognizing that there is a medical problem that requires treatment).

Making a mistake may not be malpractice

Just because the doctor that treated you made a mistake in diagnosing your illness, or failed to diagnose your illness at all, does not necessarily mean that you have a medical malpractice claim.

"How do I know when misdiagnosis is malpractice?"

There are a number of questions that need to be answered in order to determine whether a misdiagnosis (or failure to diagnose) actually led to medical malpractice:

What were you symptoms that you described to your doctor?

What was the misdiagnosis (wrong diagnosis)?

What was the correct diagnosis?

Who eventually gave you the right diagnosis?

How long did it take before you received the correct diagnosis?

How long did it take before you received proper treatment? (For example, was it weeks, months, or years?)

If your doctor doesn’t properly diagnose your symptoms, but another doctor discovers the problem shortly afterwards, you may have difficulty proving that a delay of a few days or weeks or even months made a difference in the outcome of your illness.

Long delays may not matter

There are some medical conditions where even a long delay in diagnosis has little effect on the outcome (or prognosis) of the patient’s treatment. For example, some types of cancer (pancreatic) have such a bad prognosis (outcome) that there is little that can be done no matter how much time you have to seek treatment.

On the other hand, some types of cancer grow so slowly that even a long delay in diagnosis will not affect the eventual outcome of the illness. For example, prostate cancer grows very slowly. The majority of men over the age of 50 have some early signs of prostate cancer. But prostate cancer usually grows so slowly that other types of illnesses (or old age) cause the patient’s death long before the prostate cancer.

But even short delays can be critical

On the other hand, there are some types of medical conditions that are so serious that a delay of hours or even minutes can make the difference between whether the patient will have a favorable outcome or be left totally and permanently disabled. For example, subdural hematomas (bleeding on the brain) or epidural abscesses (a lesion on the spinal cord) are medical emergencies where a delay of hours can be deadly.

Every case is different

The simple fact is that just because your doctor may have made a mistake in diagnosing your illness, or may have delayed in coming up with the proper diagnosis, does not mean that you have the grounds for successful medical malpractice claim.

The bottom line

The bottom line is that your medical malpractice claim will depend on the specific facts in your case. If you think you or a family member have been the victim of medical malpractice, you should get the advice of an experienced medical malpractice lawyer as soon as possible.

Continue reading "Misdiagnosis or Failure to Diagnose in Medical Malpractice Claims" »

When I am asked to review a possible claim for a client wondering if they have been a victim of medical malpractice, it often takes months of investigation and requires reviewing hundreds of pages of medical records and reports. In many cases I have to get a medical expert to provide a medical-legal opinion on the issue of standard of care or causation.

However, there is a way for you to figure out for yourself if you have medical malpractice claim that is worth talking to a lawyer about to see if you may have a claim.

Two Simple Questions:

There are two questions that you need to ask yourself. If there is a clear cut answer to both questions, then you may have a medical malpractice claim that is worth pursuing.

The first question you need to ask yourself is:

“What did my doctor (nurse or health care professional) do or fail to do that was careless?”

If there is no clear answer to this question, or if there was a series of problems or errors that led to your injury, or if you are not exactly sure what caused the problem that you are concerned about, your medical malpractice claim may be difficult to prove

The second question you need to ask yourself is:

“If the medical malpractice had not happened, how would things be different for me now and in the future?”

In order to be entitled to receive compensation you must be able to clearly establish that you suffered an injury as a result of your doctor’s (or health care provider) negligence. If your doctor was negligent, but you did not suffer any injury, then you probably don’t have a claim that is worth pursuing.

For example, if you received the wrong medication and spent months worrying about it, but suffered no ill effects, than you probably don’t have a claim that is worth pursuing.

In other words, unless you can clearly explain to a judge or a jury what the injury is and how it is going to affect your life then it might be difficult for you to receive enough compensation to make it worth the expense of a complex medical malpractice trial.

I go into more detail on these questions and a number of other issues that you need to be aware of in my book: The Consumers Guide to Medical Malpractice Claims in Canada: Why 98% of Canadian Medical Malpractice Victims Never Get a Penny in Compensation. You can get a free copy of the book by contacting me through this blog or by calling my office at (902) 423-2050.

Medical Malpractice can happen in two ways:

1. Negligence is when your doctor causes an injury because he or she failed to meet the standard expected of a reasonably competent physician;

2. Assault and Battery happens when your doctor does not have your informed consent to perform the medical procedure that caused your injury.

Consent to Medical Treatment:

Everyone has a legal right to decided what can be done with his or her own body. Lawyers refer to this right as autonomy.

What that means, in plain language, is that your doctor needs your permission (the legal term is informed consent) before your doctor can treat you.

What is Informed Consent?:

You can only give valid permission if you are provided with all of the information necessary to make an informed decision about your proposed medical treatment.

For example, assume you have the following conversation with your doctor:

Doctor: “I want to perform surgery on your leg. Do I have your consent?”

Patient: “Um…why do you want to do the surgery?”

Doctor: “Because it will stop the pain in your leg. Do I have your consent?”

Patient: "You can do anything you want as long as it stops the pain!

Patients Just Want to Be Cured

Many patients are concerned about curing or fixing the problem, illness or pain that brought them to the doctor in the first place. So when their doctor tells them that the proposed medical treatment will cure the problem, many patients simply agree without asking further questions.

What are the Consequences?

However, in order to give proper informed consent you must be able to understand the reasonable and foreseeable consequences of giving your permission, or not giving your permission, for the medical procedure.

What Shoud your Doctor Tell You?

It is generally accepted that in order to provide proper permission for medical treatment, your doctor must explain:

• The nature of the proposed medical procedure;

• The reasonable alternatives to the proposed medical procedure; and

• The relevant risks, benefits, and uncertainties related to each alternative.

How Do You Give Permission?

Your permission or consent may be expressed in words or implied by your actions. For example, when you are undergoing a surgical procedure your doctor will usually get you to sign a consent form as part of the consent process to confirm your permission to perform the medical procedure.

No Permission = Assault

Any medical procedure that is performed without proper informed consent is considered to be an assault. The doctor who performed the medical procedure will be responsible for any injury suffered by the patient in the course of the medical procedure.

He Said - She Said

Unfortunately, it is often difficult to win medical malpractice cases involving allegations of informed consent. Often the question of whether the risks were properly explained to the patient boils down to the doctor’s word against the patient.

Ask Questons - Make Notes!

Therefore, it is important to document the consent process by asking lots of questions and making notes of any discussions you have with your doctor before you undergo a medical procedure. Particularly, any discussion you have with your doctor about the risks, benefits and alternatives of the proposed medical procedure.

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Continue reading "What Does Informed Consent Have To Do With My Nova Scotia Medical Malpractice Claim?" »