Halifax Medical Malpractice Lawyer Blog

How often does medical malpractice happen in Canada?

The short answer is that the law suits that are filed in court are just the tip of the iceberg when it comes to medical malpractice claims in Canada.

Medical malpractice claims in Canada tend to get a lot of attention in the media. Everyone is concerned about the quality of health care that they receive, and claims that raise concerns about problems with medical care naturally get reported in the newspapers or on television.

Most Malpractice Victims Don't File Law Suits

But the fact is that most victims of medical malpractice never file a law suit.

More Than Half of Medical Mistakes "Preventable"

A famous research study conducted by Harvard Medical School determined that more than half of all injuries caused by medical management (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.

24,000 Canadians Die Every Year

In May 2004 the Canadian Medical Association published: "The Canadian Adverse Events Study: the incidence of adverse events in hospital patients in Canada". The report confirmed findings of similar studies in the United States, Australia, the United Kingdom, Denmark and New Zealand.

The Canadian study concluded:

• As many as 24,000 patients die each year due to “adverse events” (code words for a bad result).

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

• 1 in 13 adult patients admitted to a Canadian hospital encounter an adverse event.

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

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

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

A report by the Canadian Institute for Health Information (CIHI) indicated that nearly one quarter of Canadian adults (5.2 million people) reported that they, or a member of their family, had experienced a “preventable adverse event” (medical error).

Only a Few Law Suits Filed Each Year

According to the annual report of the Canadian Medical Protective Association (the CMPA), the group that defends most lawsuits filed against doctors in Canada, about a 1000 legal actions are commenced against doctors in Canada each year.

But the Canadian Medical Association says that 24,000 people die each year due to medical errors and more than 87,000 patients in Canada experience an adverse event.

Why Don't More Canadians File Medical Malpractice Claims?

So why aren't their more medical malpractice law suits in Canada?

Part of it certainly has to do with the difference in attitude between Canadians and Americans when it comes to litigation. We just aren't as likely to file a lawsuit as Americans are.

It certainly isn't because the CMPA is settling the claims of victims before they file their lawsuits. Their annual report shows they settle less than 500 claims per year.

Is it because they can't find a lawyer willing to take on a complicated and expense medical malpractice claim? Perhaps. Medical malpractice claims are complicated, time consuming, risky and very expensive. There are few lawyers willing to devote the time and money it takes to prosecute medical malpractice claims.

I believe that a bigger problem is that most patients don't know they have been the victim of negligence!

There are no national standards regarding the disclosure of medical errors to patients.

Related posts:

Majority of Infant Deaths Due to Medical Error Preventable

Medical Malpractice Kills More Than 24,000 Canadians Each Year

Overworked Nurses Causing Medication Errors

Continue reading "How Often Does Medical Malpractice Happen in Canada?" »

When someone dies or is seriously injured in a hospital, or after receiving medical care, it is human nature to feel that someone is responsible, that someone is to blame.

But from a legal standpoint, it may not actually be possible to prove that someone is liable (legally responsible) for the death or injury.

There are four things that you have to prove in order to win your medical malpractice case in Canada:

Standard of Care:

Doctors, nurses and other health care workers are human. They are not expected to be perfect. But they are expected to be reasonably competent.

You will need expert evidence to show what standard of care is expected of a reasonably competent doctor (or nurse). For example, doctors in the same specialty as the negligent doctor must be willing to testify that the conduct of the doctor fell below accepted standards.

Breach of the Standard:

You will need expert evidence to prove that the doctor (or nurse) did not meet the standard expected of a reasonably competent doctor (or nurse).

In other words, did they do something that they should not have done, or did they fail to do something that they should have done?

Making a simple mistake or getting a bad result is not enough – you must prove that it was a significant error which directly led to your injury.

Causation:

Not only must you prove that the doctor (or nurse) breached the standard of care; you must also prove that the breach actually caused your injury.

It is possible that a doctor can be negligent (breach the standard of care), but the negligence isn’t what caused the injury

For example, failing to wear surgical gloves during an operation is a breach of the standard of a competent surgeon. But it is not likely to cause you to suffer a stroke during your operation.

On the other hand, failing to wear gloves may very well cause or contribute to the surgical wound becoming infected, leading to serious injury or death.

Damages:

Finally, you have to prove what the financial consequences of the injury has been so that the court can award damages for pain and suffering, and any income loss or medical expenses as a result of your injury.

For example, you will need experts like physical medicine specialists to prove the extent of your injuries; vocational experts to establish how your injuries affect your ability to work; and actuarial or economic experts to calculate your past and future income loss and future pension loss.

Continue reading "What Do I Have to Prove to Win My Medical Malpractice Case in Canada?" »

Cape Breton Doctor Incompetent

The College of Physicians and Surgeons of Nova Scotia found Dr. Stani Osif guilty of professional misconduct and professional incompetence under the Nova Scotia Medical Act. I posted about the charges a couple of months ago: Cape Breton Doctor so "Incompetent" no Training Program can Help: College of Physicians.

Osif Ordered to Retrain

I see that the College has ordered Dr. Osif to undergo retraining and pass the Canadian College of Family Physicians certification test. According to a report by the CBC, if Osif doesn't complete the retraining, and pay the College $200,000.00 in legal fees, her license to practice medicine in Nova Scotia will be revoked. You can read the entire College decision here.

Osif Appeals

The CBC has now reported that Dr. Osif has appealed the College's decision to the Nova Scotia Court of Appeal.

Accuses Witnesses of Perjury

Osif has accused witnesses that testified at her hearing of giving false testimony. In other words, she has accused the people that testified against her of committing perjury!

Public Doesn't Understand Role of College

I found some of the comments posted on the CBC site interesting (and unfortunate) because they confirm the misunderstanding that the public has about the oversight/supervision that doctors have in Nova Scotia (and the rest of Canada).

One reader commented:

Maybe the College of Physicians and Surgeons of Nova Scotia should be censored by the government for not intervening sooner. How could something this harmful have gone unknown for so many years. Time for the College to be replaced too.

The College of Physicians and Surgeons in each province is the body that is responsible for licensing and disciplining doctors. Over the past 18 years that I have spent representing victims of medical malpractice, I have found that most members of the public misunderstand the role of the College.

Once a doctor is licensed to practice medicine they are assumed to be competent by the College unless shown otherwise. But the College does not engage in ongoing oversight of doctors. The College does not engage in ongoing testing of doctors to ensure that their skills are up to date. Most important; the College does not initiate disciplinary investigations unless it receives a complaint!

Patients Responsible

In other words, a great deal of the responsibility for the oversight and discipline of doctors lies with patients.

Patients Not Told About Medical Errors

The problem with this approach is that there is no legislation, no law, in Nova Scotia that requires doctors and hospitals to tell patients when they have made a mistake, or when the patient has been the victim of medical error.

Furthermore there are no national standards for disclosure of medical errors.

In fact, every province in Canada has legislation that says that Hospital's internal investigations into medical errors are privileged and confidential. In Nova Scotia, Section 60 (2) of the Evidence Act reads:

(2) A witness in any legal proceeding...is excused from answering any question as to any proceedings before, or producing any report, statement, memorandum, recommendation, document or information of, or made by

(a) a research committee of a hospital;

(b) a hospital committee established for the purpose of studying or evaluating medical or hospital care or practice in a hospital; or

(c) a research committee recognized by the Minister of Health and Fitness and approved for the purpose of this Section,

and that is used in the course of, or arising out of, any study, research or program carried on by a hospital or any such committee for the purpose of education or improvement in medical or hospital care or practice.

Thousands Die Every Year

According to the Canadian Medical Association Journal, medical errors kill more than 24,000 Canadians each year.

So if the patient has died, or if the patient or his or her family isn't told that their doctor made a mistake, how are the patients or their family supposed to know if they have the grounds for a complaint to the College of Physicians and Surgeons?

Doctor Filed Complaint

The Osif case is unique because the original complaint that launched the investigation came from one of her colleagues, another doctor. In my experience, that is very unusual. I expect many doctors feel that if they made a mistake they wouldn't want their colleagues to be filing complaints about them. Doctors are, understandably, reluctant to file complaints about their co-workers.

How Do We Improve Health Care?

So what can be done to improve health care by improving the oversight of doctors? In my view there has to be legislation that requires hospitals, doctors and nurses to report medical errors to patients.

I have no doubt that this type of legislation would be vigorously opposed by the medical profession (or I should say, by their lawyers). But if the ultimate goal is improving health care and patient safety then shouldn't everyone, patients included, have all the facts?

What do you think?

Continue reading ""Incompetent" Doctor Ordered to Undergo Retraining Appeals: Cape Breton" »

Altering medical records does not happen as often as it appears to happen on television or in the movies. However, it happens enough that experienced medical malpractice lawyers develop a sense of when further investigation into the legitimacy of a medical record or chart is warranted.

One of my favourite movies of all times is The Verdict with Paul Newman. I love the scene where he finally realizes that he can prove that the defendant doctor altered the medical files of the woman who was left in a coma because of the doctor’s negligence.

Lessons Learned From Past Cases:

Over the past 18 years, I have learned some lessons about when to suspect that a medical file may have been altered.

Notes on one report, not on another:

In one case I was involved in the specialist’s report that was received by my client’s family physician did not have (exculpatory) handwritten notes that appeared in the report in the specialist’s file.

Lesson:
Look for all copies of the record and compare them.

Different Versions of reports:

In one case the surgeon dictated three different versions of the operative report. The family doctor received the first version days after my client’s surgery. After my client’s condition deteriorated, he dictated a second version (which was found in the Hospital chart). After my client became comatose and was transferred to another hospital for corrective surgery he dictated a third version of the report which was in his office copy of my client’s chart.

Lesson:
Get the records, and get them fast.

Were they working?

In a claim involving allegations of nursing negligence, the nursing notes contained statements that the patient’s condition had been communicated to the attending physician. However the date of the entry was for a day that the nurse in question wasn’t working!

Lesson:
Compare staffing sheets/time cards with the medical chart to detect entries/notes by staff members that were not present/on duty that day.

Medication Errors:

Medication errors are a common mistake among nurses who are overworked or inexperienced.

In a claim involving a fatal overdose, the nursing notes indicated that the deceased had received the proper dosage of medication. However, the medication administration records, which were not supplied by the hospital when the chart was originally requested, showed that the medication had been administered to the patient twice.

Lesson:
Compare the medication administration records with the nursing notes and physicians orders.

Destroying Records:

In an anesthesia negligence claim the anesthesiologist tore up the original anesthesia record and prepared a new record with different data. One of the nurses involved in the operation retrieved the original record and scotch taped it together.

Lesson:
Interview everyone, including retired employees.

White out = Suspicious Records

In a birth injury claim two of the babies APGAR scores had been whited out and changed from a 0 to a 2 (normal).

Change the Numbers - Change the Result:

In a fatality claim the deceased’s blood pressure reading had been changed from 170/90 to 120/80 by using a different colour pen to alter the numbers 7 and 9. The change couldn’t been seen on the photocopy of the patient’s chart, but was reasonably obvious on examination of the original chart.

Lesson:
Whenever I have a reasonable suspicion that the medical files have been altered, I make an appointment to attend at the Hospital or the doctor’s office to view the original chart.

What to Look For:

Some “red flags” that I look for, based on past experience, that may indicate the possibility of altered medical records are:

• Crowding or squeezing entries above a signature, or between lines;
• Erasures, crossed out entries or white-out corrections;
• Changes in slant of handwriting;
• Using different pens or computer typeface to write one entry;
• Notes on different dates in the same colour ink from same pen;
• Notes in different colour ink (different pen) in the same chart note;
• A typed entry following handwritten entries, or vice versa;
• Missing original records that have replaced by photocopies;
• Entries that are self-serving;
• Half sheets instead of the standard size page (page cut in half);
• Additional notes on the original document, not on copies received by client;
• An unusually late date of dictation of a consult report;
• Any handwritten entry made by someone who erred significantly in treatment.

Continue reading "Altered Medical Files: "I think my records have been tampered with!"" »

In Canada there is no such thing as a claim for "wrongful life". In a ruling released last week, the Supreme Court of Canada denied leave to appeal a Court of Appeal decision that confirmed that Canadian law does not recognize the tort of "wrongful life" as a legitimate cause of action.

In Hergott, et al. v. Bovingdon the defendant doctor prescribed a fertility drug for the plaintiff mother. The doctor did not explain the risks of taking the drug to the mother.

The drug caused the mom to become pregnant with twins. Unfortunately, the twin pregnancy caused a premature birth, and the premature birth caused the twins to be born with severe disabilities.

At trial the jury found that the doctor was negligent in failing to explain the risks of the drug to the mother. In other words, the mom did not provide her "informed consent" to take the drug.

The trial judge also ruled that the doctor owed a duty of care to the twins, which entitled them to recover damages for their injuries. The judge awarded compensation to the parents for the cost of having to care for their severely disabled children after they reached the age of 18.

The Ontario Court of Appeal ruled that twins' claims were "wrongful life" claims, and therefore barred by Canadian law.

The Supreme Court of Canada denied leave (permission) to appeal the decision.

What does it mean?

The Supreme Court has essentially upheld the status quo on the type of claims that can be brought to court. The decision arguably has opened the door to the amount of damages that can be claimed in serious injury cases.

As the law stands now there are three types of claims that typically arise out of catastrophic birth injury cases.

Wrongful Life:

These claims are typically brought where a medical procedure for sterilization or abortion fails and a child is born as a result. Or, as in the Hergott v. Bovington cases, where a child is born with a severe disability as a result of negligence. The claim is typically brought by the child claiming compensation for the harm caused by their birth. In Canada, these types of claims have usually not succeeded. The courts have stated that a claimant cannot claim to have suffered harm as a result of their birth. In other words, the courts assume that it is better to be alive than never to have been born. The Supreme Court of Canada's decision not to hear the twins appeal in the Bovington case confirms that this remains the state of the law in Canada.

Wrongful Birth:

These types of claims are typically brought by parents of children that have been born with an injury. Typically the injury is the result of post-conception negligence by a doctor. For example where a child is born with Erbs Palsy, stretch injury to the brachial plexus that happens during a baby's delivery. These types of claims have generally succeeded.

Wrongful Pregnancy:

These types of claims are brought by parents on behalf of children. The claims typically involve an allegation of negligence resulting in an unplanned pregnancy due to a failed sterilization procedure. For example see the recent decision from New Brunswick where a mom was awarded $90,000.00 after she had a child as a result of a failed tubal ligation.

Expanding Recoverable Damages?

Less attention has been paid to the issue of the parents claim for the cost of caring for the twins after they reached the age of majority. The doctors lawyers argued that the Supreme Court of Canada decision in Krangle v. Brisco means that the defendant does not have to pay for the cost of a disabled child once the parent is not legally obliged to care for the child.

The Ontario Court of Appeal emphatically rejected this argument.

The trial judge rejected the appellant’s submission that Krangle stands for the proposition that the absence of a legal obligation on the parents to support the children after age eighteen is a bar to recovery. I agree with the trial judge. In Krangle, the child was not going to be supported by the parents once he was an adult. Therefore, they would not be incurring that cost. This was not because they were not entitled to incur the cost had they wished but because the group home was in the child’s best interest. The issue in that case was whether the parents would be obliged to reimburse the state for the cost of the child’s care, which turned on their legal obligation to provide support. If they had been responsible to reimburse the state, they would be seen as likely to incur the cost of future care and the court would have awarded damages to cover this cost.

I have represented parents whose children have suffered catastrophic injuries. In many cases the parents are overwhelmed by the costs and pressures of caring for a severely disabled child. As a result, their future care plan often involves placing the children in provincially funded care or group homes after the child reaches the age of majority.

The Bovington decision means that parents can make a claim for the extraordinary costs of caring for a disabled child, once they become an adult.

As the Court of Appeal put it:

A group home could only provide for their physical care but not their emotional well-being. Nor would the group home be able to give them intellectual stimulation and pleasure.

So there you have it. The Supreme Court holds the line on wrongful life but clears the way for claims for the costs of caring for a disabled adult child so that they can continue to receive the love and emotional support that only a parent can provide.

Continue reading "No "Wrongful Life" in Canada: Supreme Court" »

Moira Hennessey, an assistant deputy minister in Newfoundland and Labrador's health department has told the Cameron Inquiry that she was ordered not to question confusing figures about cancer test results according reports from the CBC.

“Forgot” to tell Bosses about Problems

She also testified that she “forgot” to pass on information on problems with cancer screening results to her bosses.

Ordered to Alter Records

Hennessey told Justice Margaret Cameron she altered a ministerial briefing note on the orders of her boss, the deputy minister of Health John Abbott.

Abbott had ordered Hennessy to change briefing notes to indicate that recommendations to fix the pathology lab had been implemented when in fact they had not.

"The note came back I can still see it, actually. The note came back to me with the words crossed, like slashed, through it," she said.

Error in Judgement

Hennessey denied any attempt to cover up problems in the department. When asked about why she had not told the Minister of Health the correct information, Hennessey responded:

"Regrettably, that was an error in judgment on my part,"

Didn’t Disclose Hundreds of False Test Results

Hennessey did not tell her boss that test results showed that more than 300 breast cancer patients had been given incorrect testing results.

It is hard to believe that bureaucrats could put the lives of hundreds of people at risk, simply because they didn't want to face the political fall out. Well...perhaps it isn't so hard to believe.

Continue reading "Officials told to Turn a Blind Eye to Cancer Test Results: N.L." »

Dr. Rajgopal Menon, the dismissed pathologist at the centre of a public inquiry into botched cancer screening tests and autopsies in New Brunswick, apologized to his former patients yesterday for any errors he may have made.

Menon "Apologizes"

“I wish to sincerely apologize to any patient if I have made an error in reading their pathology slides. I was not aware of any errors in my work."

More Problems Than Previously Reported

The expert hired to review Menon’s work, Dr. Rosemary Henderson testified yesterday that she found 14 incorrectly diagnosed cancer tests done by Menon in just a two year period. More than the 6 or 7 errors that had previously been reported.

Menon Casts Blame on Others

But today Menon changed his tune. He blamed his bosses whom he said “were out to get him” according to CBC reports.

Notes "Planted"

Menon claimed that signed notes of a 1998 meeting where Menon was told to clean up his act or face dismissal were fake.

"The meeting never happened," Menon insisted. "I think the notes were planted."

Menon "Blackmailed"

He claimed that New Brunswick’s College of Physicians and Surgeons tried to blackmail him into resigning.

"Maybe, in hindsight, it would have been better," Menon said when asked what he thought of the offer. "But that is like blackmail for me. . . . That is not professional medicine."

Hospital Was The Problem

Menon said the problem was not with him but the Hospital where he worked:

"As far as I was concerned, it was the administration," he said.

Doctor "Out To Get Him"

When questioned about a letter from another doctor expressing concerns about Menon’s competency, Menon told the inquiry:

"He wanted my job and I didn't want to give it," Menon said. "That was the only problem."

Everyone to Blame But Himself

You have to wonder what colour the sky is in the fantasy world that Menon lives in. It appears that the only people Menon didn’t blame for his incompetence are the cancer victims who were not able to receive treatment because he botched their test results telling them they were cancer free!

How many people have died or have not received proper medical treatment because of Menon? He obviously has not read my previous post Doctors: Say "I'm Sorry" and don't get sued!

What do you think? Is Menon incompetent or an innocent victim of an incredible smear campaign?

Continue reading "Disgraced Pathologist Menon “Sorry” but Blames Everyone in Sight" »

Dr. Stani Osif of Cape Breton has been found guilty of "incompetence and professional misconduct" in a number of incidents at Northside General Hospital in North Sydney between 2003 and 2006 according to a story in today's Chronicle Herald.

In June 2007 the College of Physicians and Surgeons of Nova Scotia suspended Dr. Osif's license to practice medicine.

In January 2008 the College ruled that Dr. Osif was guilty of incompetence and professional misconduct.

The College is now holding a hearing to determine how Osif should be disciplined.

In cases where the College determines that there is evidence of professional misconduct, incompetence, or conduct unbecoming, the complaint is referred to a hearing committee.

The hearing process is like a mini-trial, with witnesses providing sworn evidence and legal arguments from a lawyer acting for the College and a lawyer representing the doctor.

Discipline can range from dismissal of the complaint to removal of the doctor from practice.

The panel holding the disciplinary hearing heard argument yesterday that Osif's medical skills are so lacking there may not be a training program adequate to bring her up to standards.

The Herald reported that:

College lawyer Marjorie Hickey said the gravity of the incidents, which included a second potentially life-threatening misdiagnosis, called for further sanctions.

The finding of professional misconduct indicated a deliberate disregard or indifference to patients’ well-being, Ms. Hickey said.

"We’re not dealing here with a case of one isolated incident . . . in an otherwise unblemished career..."

Were you a patient of Dr. Osif? What do you think should happen?

Continue reading "Cape Breton Doctor so "Incompetent" no Training Program can Help: College of Physicians" »

Robbin Reeves underwent a liver transplant surgery at the Vancouver General Hospital in February 2006. He woke up with severe burns to his neck and shoulder.

Reeves has filed a medical malpractice claim in which he claims that during the surgery his heart stopped and doctors performed an open cardiac massage. Reeves’s lawsuit claims doctors tore one of the chambers of his heart and, in the rush to prepare for the emergency surgery, alcohol on his neck and shoulder caught fire, leaving him with serious burns.

You can read more details here.

A review of surgical pathology practices at the Miramichi Regional Hospital found there were "big problems" with the work of Dr. Rajgopal Menon according to a report in the Chronicle Herald today.

The latest revelation in the ongoing inquiry into the botched cancer screening fiasco in New Brunswick came yesterday.

Dr. Rosemary Henderson, medical director of the Queen Elizabeth Hospital in Charlottetown, and pathologist, Dr. Bruce Wright, conducted a review of Menon's cases at the request of New Brunswick's College of Physicians and Surgeons more than a year ago.

Henderson and Wright's report identified problems with Menon's work including:

Slow turnaround time;

Incomplete work;

Failure to trim surgical pathology specimens properly, and

Failure to disclose his visual problems.

The report was particularly concerned with Menon's failure to disclose his visual problems.

"Given the importance of vision to a pathologist, the college may wish to consider whether or not this represents an ethical and/or legal failure to disclose a significant medical problem,"

Related posts relating to the Menon Inquiry:

Health Authority Knew About Pathologist's Problems: Miramichi

Deputy Minister Received Complaints about Disgraced Pathologist: New Brunswick

Negligent Cancer Screening Put Patients at Risk: Miramichi Hospital

Negligent Cancer Screening in New Brunswick May Lead to Criminal Charges and Medical Malpractice Claims

The National Post has reported that a mother from New Brunswick who became pregnant after a failed tubal ligation has been awarded $90,000.00 in compensation.

The woman, who was 26 years old at the time of the procedure, had three children to support, her husband was seriously ill, his business was failing and the couple had lost their house and car. To prevent the expense of further additions to the family, she had a tubal ligation, a permanent sterilization procedure thousands of Canadian women undergo every year.

After she became pregnant, she filed a medical malpractice lawsuit against the doctors that performed the procedure and the Hospital where the procedure was performed.

Madam Justice Paulette Garnett of the New Brunswick Court of Queen's Bench concluded the hospital had failed to properly maintain the tubal-ligation equipment, leading to the failure.

Justice Garnett acknowledged how suing for the birth of a healthy child might be perceived:

"Sometimes the birth of a child is not a blessing. It is often a burden," Justice Garnett wrote in her judgment.

"Medical science has made it possible for families to limit the number of children they have, and, in this country, the vast majority of them do ... The fact that (she) now treasures her unplanned child is irrelevant. It is relevant that she has to feed, clothe and educate her."

You can read the entire decision here.

Continue reading "New Brunswick Court Orders Compensation for Mother of Baby Born after Failed Tubal Ligation" »

In a story related to my post yesterday, I came across a story on Radio Boston that aired a few months ago that explores the issue of medical apologies.

It is an interesting report and worth listening to. You can listen to the whole story here.