Halifax Medical Malpractice Lawyer Blog
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Proper medical treatment requires proper diagnosis

It goes without saying that getting the right diagnosis is the first step in receiving proper medical care. Obviously if a patient isn’t properly diagnosed then the treatment they receive isn’t likely to address their illness or condition (except perhaps by chance).

So medical misdiagnosis is a serious threat to patient safety. In fact medical misdiagnosis is the number one cause of medical malpractice lawsuits in Canada.

The Institute of Medicine has reported that diagnostic errors have become a serious problem. The report finds that most people will be misdiagnosed during their lifetime! One of the authors of the study, Dr. Victor Dzau of the National Academy of Science, Engineering and Medicine called the report a “serious wakeup call”.

How do doctors diagnose illness or injury?

Physicians are taught, very early in their medical training how to conduct a proper diagnosis. They have to use a process called the “differential diagnosis”.

The Canadian Medical Association Journal has found that preventable medical errors contribute to between 9000 to 24,000 deaths in Canada every year.

Considering how critical obtaining a proper diagnosis is to providing proper medical care and considering how serious the consequences can be, one would think that health care profession would want to know how often medical misdiagnosis happens so that they can improve patient safety.

No one is keeping track of errors

Astonishingly, no one in Canada is actually tracking the rate of medical misdiagnosis!

The Institute of Medicine report calls for improvement in communication and teamwork between health care providers. One of the recommendations of the report is something that I have been advocating for some time; that health care providers make patients and their family members an active part of the diagnosis process.

Simply put, the more information that patients and family members have the more willing and able they are to understand the diagnostic process and to be able to provide physicians with helpful information that could assist the health care professionals.

What happens next?

Now that the issue has been given more attention hopefully heath care professionals will take active steps to try to determine how often doctors are making diagnostic errors so that the mistakes can be corrected.

Knowledge is Power

Once you understand how often mistakes are being made it becomes easier to identify why the errors are happening so that they can be prevented.

Want More Information?

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

The revised edition of the book contains a new chapter on the link between medical malpractice and birth injuries, and cerebral palsy claims caused by hypoxia and ischemia.

All proceeds from book sales go to charity.

Free Copy to Blog Readers

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

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The Ontario Court of Appeal has released an interesting decision in the case of Cathy Frank v. Legate et al. Victims of medical malpractice in Canada face a number of barriers in getting access to justice. The claims process can be complicated, time consuming and expense. The odds are stacked against plaintiff’s in medical malpractice claims for a variety of reasons. However, as this case illustrates, a doctor in Ontario tried a novel tactic in attempting to limit medical malpractice claims her.

Dr. Cathy Frank is an obstetrician in Ontario who is the defendant in a number of medical malpractice claims. The doctor adopted the unusual strategy of suing the lawyers who represented the plaintiffs who were suing Dr. Frank. The defendant doctor alleged that statements made by the plaintiff’s law firm in their statement of claim and on their website were defamatory.

Dr. Frank also claimed that she was the victim of malicious prosecution, that the plaintiffs’ lawyers were guilty of champerty and maintenance (a very old legal principle that prohibits plaintiffs from starting litigation with an improper motive), intentional interference with economic relations and intentional infliction of mental distress. Dr. Frank sought punitive damages from the plaintiffs’ lawyers.

The lawyers for the medical malpractice plaintiffs moved to have the doctor’s claim struck out and were successful. The doctor appealed to the Ontario Court of Appeal. The Court of Appeal agreed with the trial Judge’s decision to strike out every single ground of Dr. Frank’s claim. The Ontario court’s decision soundly rejected each of the doctor’s legal arguments.

With respect to the doctor’s claims of defamation. Justice Hourign stated:

“In my view, the motion Judge correctly concluded that the seven impugned statements in the appellant’s statement of claim were clearly incapable of bearing a defamatory meaning.”

Justice Hourign was critical of the doctor’s tactics and stated at paragraph 45 of the decision:

“The appellant effectively seeks to prohibit law firms from describing allegations that form the basis of the potential or ongoing claims. If this type of statement amounted to defamation, no law firm in the Province could ever solicit clients because they could not provide the necessary information for people to determine if they should consult a lawyer about a potential claim. The class action process, for example, would be effectively evisorated if lawyers were restricted in their communications in the manner urged upon us by the appellant.”

I have stated many times that the vast majority of medical malpractice victims don’t even know that they may have a potential claim. One of the reasons I wrote my book Health Scare: The Consumers Guide to Medical Malpractice Claims in Canada, was to educate the public about medical malpractice claims in general and to provide them with information about their legal options.

This decision is a victory for medical malpractice victims. If Dr. Frank had been successful it would have no doubt have had the effect of making it even more difficult for medical malpractice victims to find lawyers willing to assist them with the time consuming, expensive and difficult struggle to receive access to justice and fair compensation.

Legate & Associates is one of the premiere medical malpractice law firms in Ontario and their lawyers are to be commended for their fight against such intimidation tactics.

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Did you know that there are certain times when it is more dangerous to go to the hospital?

What’s the most dangerous time to go to the hospital?

As Canadians we are proud of our health care system. We expect hospitals, doctors and nurses to provide us with excellent care no matter when we are forced to go to the hospital. That’s not an unreasonable expectation.

But what many people don’t know is that studies have shown there are certain times of the day, certain days of the week and certain months of the year that carry a higher risk of medical complications or death.

  • Did you know there is a higher risk of death for patients admitted to hospital on weekends?
  • Or that there is a huge increase in the risk of cerebral palsy for babies born at night?

In this educational video I explore some of the recent studies surrounding hospital and patient safety. I hope you find it interesting.

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Before your doctor performs any medical procedure on you he or she is supposed to get your permission. The process the doctor is supposed to go through is called informed consent.

Informed Consent: What does it mean?

As I explain in the video, getting proper informed consent is more than just getting a signature on a piece of paper. In fact the Canadian Medical Protection Association, that represents most doctors in Canada has an interesting article about informed consent.

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What is the CMPA?

The Canadian Medical Protective Association represents almost every doctor in Canada. The Association is a mutual defence fund that operates sort of like insurance. If a doctor is sued for malpractice, the CMPA will defend the claim and if the doctor is found liable for the plaintiff’s injuries, the CMPA will pay the compensation out of its $3 billion dollar reserve fund.

The CMPA also represents doctors in matters dealing with College of Surgeon and Physician complaints, disciplinary matters, criminal charges, and matters dealing with hospital privilege issues.

Where the CMPA differs from an insurance company is that it doesn’t have shareholders that expect it to make a profit. If an insurance company has a claim worth $50,000.00 that is going to cost $100,000.00 to defend, it makes sense to settle. It saves the company money which means more profit for shareholders.

The CMPA on the other hand can (and will) spend $100,000.00 to fight a claim that is only worth $25,000.00. That makes it very expensive for injured patients to be able to afford justice. See for example: Costs in Medical Malpractice Claims Can be a Barrier to Justice

Annual report shows an interesting trend

The CMPA’s annual report for 2013 is now available online. The report is interesting because it shows a significant drop in medical malpractice claims against physicians across the country. This is a trend that started more than ten years ago.

The report indicates that in 2013 there were just 842 medical malpractice claims filed against doctors across Canada. Compare that to more than 1,400 lawsuits filed in 1995.

The decrease in claims is even more dramatic when you consider that over the last ten years the numbers of doctors in Canada has increased by more than 50%.

So there has been a stunning decrease in the percentage of medical malpractice claims filed over the last ten years.

Has there been some miraculous improvement in health care across Canada that has led to this decrease in claims?

There is no evidence to suggest that medical care in Canada has been improving or that medical errors are happening less frequently. So what accounts for the change? I have written before about how difficult it is for injured patients to sue to recover compensation for their injuries in medical malpractice claims. You can read more here: 99% Of Potential Medical Malpractice Victims Never File a Claim!

Tax dollars pay to defend doctors

What most members of the public don’t realize is that provincial governments use public funds to reimburse doctors CMPA premiums. For example, Ontario pays 90% of the annual CMPA premiums for obstetricians in that province.

What that means is when you or your family member is injured by a doctor it is your own tax dollars that is paying (for the most part) to fight your medical malpractice claim.

Claims dropping, premiums increasing

What is also interesting about the report is that, although the number of medical malpractice claims against doctors has been decreasing steadily for the last ten years, the premiums that the CMPA charges to doctors has been increasing.

The increase in premiums appears to be connected to the increase in the defence legal costs for defending doctors in College of Surgeons and Physicians complaints, dealing with disputes regarding their hospital privileges and defending physicians in criminal matters.

Why the sweet deal for doctors?

One has to ask what the justification is for using public money to defend doctors in negligence claims.

You are required to have automobile insurance for your car. You pay for the premiums for that insurance out of your own pocket. If you get in a car accident, your insurance company will defend you and pay the claim if you are found to have been negligent. No tax dollars involved and why should it be since you and I should be personally responsible if we are negligent.

The cost of funding our car insurance comes entirely from our own pockets.

Not so with doctors. Public tax dollars are used to pay doctors CMPA premiums. If a doctor is sued for negligence, public tax dollars are used to pay for the doctors’ defence. If the doctor is found liable for malpractice, part of the compensation paid to the victim comes from premiums paid for by public tax dollars.

Does this seem fair to you?

Why should public tax dollars be used to reduce access to justice for injured patients or the families who have lost loved ones due to a doctors negligence?

Let me know what you think in the comments.

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Are staffing demands putting patient safety at risk?

Last week the media reported two stories of interest to patient safety advocates.

The Province of Nova Scotia released statistics from its medical errors registry suggesting that, in the last six months, medical errors had caused almost thirty cases of serious injury or death in hospitals throughout Nova Scotia. If you are interested, you can read my article about the problems with Nova Scotia’s medical errors registry.

News also broke about a nurse working at the Cape Breton Regional Hospital who worked so much overtime that she was paid more than the hospital CEO. According to the Cape Breton District Health Authority registered nurse Catherine Bedard was paid more than $257,000.00 last year. That is more than triple the $81,000.00 an experienced nurse is paid under the Nova Scotia Nurses Union’s Collective Agreement.

Lots of overtime = long hours

Even taking into account time and a half or double time payments for working holidays, the numbers suggest that nurse Bedard must have been working upwards of 80 hours per week.

Overworked nurses a concern

Why is this news a concern to patient safety advocates?

Over six years ago I raised a concern about nurses being overworked. Statistics Canada released a report showing that nurses who worked longer hours reported more medication errors stating:

“Among nurses who usually worked overtime, 22% reported medication errors, compared with 14% of those who did not work overtime.”

It is not hard to see how nurses who are forced to work more hours may be more tired, distracted and prone to errors.

24% of Canadian adverse events due to medication errors

Almost 1/4 of medical errors are caused by medication mistakes.

The Canadian Medical Association released a study “The Canadian Adverse Events Study: The Incidents of Adverse Events in Hospital Patients in Canada” that found that 1 in 19 adults will be given the wrong medication or wrong medication dosage and that 24% of preventable adverse events were related to medication errors.

Unfortunately Nova Scotia’s new Adverse Event Medical Registry does not provide a breakdown of the nature of the adverse event and whether it was due to medication errors or other causes. As I wrote in my article yesterday, this is a serious flaw in the registry procedure.

Who is supervising workload at CBRH?

The fact that a single nurse is working such an astonishing number of hours raises concerns about workload and ultimately patient safety at the Cape Breton Regional Hospital (CBRH). It is a simple fact that when we are forced to work longer hours we become more tired, more error prone and more subject to distraction.

Hopefully last week’s revelations will result in the Province taking a close look at staffing levels at Cape Breton Hospitals and the other Health Authorities across the Province.

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Last week Nova Scotia released the result of its new policy which requires hospitals to report adverse events (medical speak for errors or mistakes).

According to the Province in the last six month there were 27 separate incidents, 21 of which where an “adverse event” led to serious disability or death.

Step in the right direction

I give the Province credit for moving forward with the Adverse Events Registry. Any effort to improve transparency in health care is something I support. Ultimately improve transparency will lead to more accountability and better patient safety and health care.

More work needed

However, as a stands now the registry is still a work in progress and has a long way to go before it will help fulfil its role in improving patient safety.

As I have written before, there are no national standards for disclosure of medical errors.

Almost ten years ago the Canadian Patient Safety Institute called for national guidelines for the disclosure of adverse events. After two years of study and consultation with the various provincial and national medical and health organizations CPSI released draft national guidelines for the disclosure of adverse events.

It was interesting that the overwhelming majority of organizations consulted (81%) claimed to have developed a policy of procedure requiring disclosure of adverse events. But the most concerning discovery was that more than half of the survey respondents (53%) said that there was no training (or they did not know if training was offered) regarding what constitutes an adverse event and how the information is to be reported.

Medical malpractice kills more than 24,000 Canadians each year. Even more people are left with serious injury or disability.

Health care workers are overworked and understaffed. The average age of Canadian nurses and doctors is getting closer and closer to retirement. Problems with understaffing are only going to increase as large numbers of medical professionals leave the health care field.

Problems with the Nova Scotia registry

Some of the problems with the Nova Scotia’s Adverse Events Registry are as follows:

1. There are no sanctions for failure to report;

2. There does not appear to be any training program for health care staff associated with the registry to help staff identify what constitutes an adverse event and how the information should be reported;

3. The registry relies on hospitals to report the medical errors to the registry. However, if hospital staff do not report the error to the hospital the hospital cannot pass on the information to the registry. There is no method for patients to report medical errors to the registry;

4. One of the biggest flaws is that fact that if a hospital denies that they made a mistake than they are not required to report the incident to the registry. For example, in just about every medical malpractice lawsuit the doctor, nurses or hospital deny that a mistake was made;

5. No reporting of complication rates: Hospitals keep track of surgeon’s complication rates after surgery. If a particular surgeon has a much higher rate of complications after surgery than his or her colleagues, that information should be considered and reported to the Adverse Events Registry;

6. Some types of adverse events are not included in the registry. For example, hospital acquired infections can cause serious injury or death and are a common occurrence in many hospitals across Canada and in Nova Scotia in particular. Yet the medical registry does not require hospitals to report the number of patients who end up suffering from, or dying from, hospital acquired infections;

7. The registry does not provide particulars of the nature of the adverse event;

8. The registry does not provide any information about what, if any, steps were taken to address the adverse event and any errors that may have caused the problem.

A first step

Nova Scotia Adverse Events Registry is a first step in the right direction. However, there is still improvements necessary before the registry will fulfil its goal of improving patient safety and health care for Nova Scotians. Here is hoping that the Registry won’t end up being windowdressing rather than a real attempt to improve patient care and safety.

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In the six years that I have been writing this blog the article that has been consistently viewed the most, year after year, is the one published on September 29, 2008: How often does Medical Malpractice Happen in Canada?

Therefore, I thought it might be useful to take another look at the issue to see if the statics have changed or if there is any new information to shed some light on the question.

The American experience

In 1999 the Institute of Medicine in the United States published To Err is Human: Building a Safer Healthcare System. This landmark report investigated patient safety in American hospitals. The authors concluded that between 44,000 to 98,000 preventable deaths happened every year in hospitals across the United States because of medical errors.

The shocking numbers were a wake-up call to Americans. However, subsequent studies found that medical errors and their fatal consequences may be even more prevalent than suggested in the Institute of Medicine Report.

For example, the journal Health Affairs published a report in 2011 indicating that adverse events (medical mistakes or errors) happen in up to 1/3 of all hospital admissions, a figure 10 times greater than previous estimates.

In 2012 Wolters Kluwer Health reported that almost 1/3 of Americans had a family member or friend that had experienced a medical error.

The Canadian experience

In 2004 the Canadian Medical Association published “The Canadian Adverse Events Study: The Incidence of Adverse Events in Hospital Patients in Canada. Despite our public belief (hope?) that the Canadian health care system is somehow better or more efficient than the United States the CMA report confirmed that medical errors were just as prevalent in Canada as in the United States.

The Canadian Adverse Events Study concluded:

7.5% of patients admitted to acute care hospitals experienced an adverse event.

Approximately 24,000 Canadian patients die every year as a result of adverse events in hospitals. Keep in mind this figure does not include deaths that happen as a result of medical negligence that occurs outside the hospital setting.

Here in Canada the Canadian Institute for Health Information has reported that more than 5 million Canadians (approximately 1/4) of all Canadian adults have reported that they, or a family member, had experienced a “preventable adverse event” in other words, a medical error.

Health Care Quarterly published a study in 2009 that 1 in 6 Canadians (about 4.2 million people) reported that they had experienced a medical error in the previous two years.

A report published in 2012 called attention to the “epidemic” of fatal medical errors in Canada stating between 38,000 to 43,000 deaths happen every year in Canada as a result of failed health care. According to the authors of the report, the actual number of deaths across the country is likely much higher because of high rates of non-reporting.

The Canadian Adverse Events Study found that 37% of adverse events were “highly” preventable and almost 1/4 of adverse events (24%) were due to medication errors.

Staggering costs

The economic cost of medical errors across Canada is hard to comprehend. A study published by the Canadian and Patient Safety Institute in 2012 estimated that the economic cost of preventable medical errors between 2009 and 2010 (one year) was $397,000,000.00.

Again it is important to point out that this estimate represents only a small fraction of the entire cost of medical errors across Canada because the report did not include costs incurred after discharge from hospital. The long term cost of caring for a disabled person or a severely injured child can amount to tens of thousands or even hundreds of thousands of dollars per year.

Many errors, few claims

Despite the thousands of medical errors that occur across Canada every year only a comparatively few medical malpractice lawsuits are filed in Canada every year.

Why don’t Canadians file medical malpractice claims?

There are any number of reasons why there are comparatively few medical malpractice lawsuits filed in Canada every year. I explored some of these reasons in my previous article.

Maybe Canadians are less litigious than Americans. Sometimes medical errors don’t cause significant (or any) injury. The National Post explored this question in an article published last year.

I believe the main reason Canada has so few medical malpractice lawsuits is the fact that most patients simply do not know that they may have been the victim of medical malpractice.

Given that there are no national standards requiring the disclosure of medical errors to patients, many potential victims of medical malpractice are never told there was an error made in their care that may have caused or contributed to their injuries.

The Canadian Patient Safety Institute created a committee to draft national guidelines for the disclosure of adverse events. The draft national guidelines were provided to national and provincial health care organizations in 2007 with a request for their feedback.

CPSI published the results of their consultation in 2008. While 81% of the organizations surveyed stated that their organization had a policy for disclosure of adverse events, more than half (53%) said that the organization did not offer training regarding the disclosure of adverse events to patients and family members.


Until there are mandatory rules requiring disclosure of adverse events to Canadians I expect many victims of medical errors are going to suffer without knowing the reason for their injuries, without being provided the opportunity to find out what happened to them, and without being provided an opportunity to seek appropriate compensation.

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Weekends are dangerous in Hospitals

Last week the Canadian Institute for Health Information released a study that examined four million urgent acute care hospital admissions between 2010-2013. The study found that there was a 4% higher risk of death for patients admitted to hospital on a weekend rather than a weekday.

The statistics did not apply across the board. The so called “weekend effect” did not occur in hospital admissions for obstetric, pediatric or mental health patients.

The authors of the report point to longer delays for diagnostic tests on the weekend and hospitals having lower staffing levels on weekends as possible reasons for the increased mortality risk.

Different risks at different times

This study confirms what other reports have found on the past, that there are recognized increases in risk of injury or death at different times during the week or the year.

For example, the American Journal of Obstetrics and Gynecology studied the records of two million births over a fourteen year period in California. The study found a huge increase in the risk of cerebral palsy for children born at night.

Specifically, children born between 10:00 pm and 4:00 am were 22% more likely to suffer from cerebral palsy than children born at other times during the day.

You can read more in my article: Birth Injuries More Common during Nightshift.

Summertime is dangerous

Studies in the United Kingdom, United States and Australia have all identified that hospitals experience an increased rate of medical errors in the summertime. In fact, the effect is so well known it actually has a nickname.

In the United States they refer to it as the “July Phenomenon” and in the UK they call it the “August Killing Season”.

The studies identify a spike in medical errors and deaths in the summertime when new medical school graduates begin their training. You can read more about it in my article: Beware the July Effect: Hospital Deaths Spike in the Summertime.

How do you protect yourself?

Obviously there is not much we can do to schedule when we become ill and require a hospital admission.

So how do you protect yourself from medical errors after hospital admission?

Take a look at this article by Consumer Reports that provides a thorough checklist of things you can do to decrease your risk of medical complications.
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In the recent decision of the Ontario Superior Court of Justice Boyd v. Edington, Dr. Richard Edington was ordered to pay $15 million dollars to Danielle Boyd and her family as a result of a catastrophic and debilitating brain injury she suffered due to Dr. Edington’s failure to diagnose the fact that she was suffering a stroke caused by dissection of one of her vertebral arteries.

15 Million dollars in compensation

The parties agreed, before the trial, on the amount of damages the plaintiffs would be entitled to receive if Dr. Edington was found to be responsible for Boyd’s injuries. The National Post reported on this story in part due to the significant amount of the damage award.

As I pointed out to the National Post reporter, damage awards in excess of 10 million dollars were once unusual. But larger awards have now become more common as plaintiff’s experts become more sophisticated in showing the significant cost in caring for a severely injured person.

The courts have also become more sensitive to the lifetime effects of catastrophic injuries that can impact ones earning capacity. In Ontario, there have been a number of damage awards in excess of 10 million dollars over the last few years. The insurance industry has taken note, and expressed concern, in an article in the trade journal Canadian Underwriter magazine.

Experts supposed to be neutral

What I think is most interesting about the decision is Justice Sproat’s commentary on the conduct of the defendants experts.

Experts have a special place in the courts in Canada. They are the only witnesses that allowed to offer their opinions rather than limiting their testimony to facts like every other witness.

However, despite the adversarial nature of court proceedings, experts are required to maintain their impartiality, regardless of which side they have been retained to testify for.

Experts become Advocates

In the Boyd v. Edington case it is clear Justice Sproat felt the defendant’s experts had crossed the line from impartiality to advocacy.

Ms. Boyd reported she had consumed one or two alcoholic drinks the day she reported to the Emergency Department at the hospital.

All of the defendants experts latched onto this fact to suggest that alcohol use may have been the cause of Ms. Boyd’s garbled speech she spoke to the nurses at the hospital, a condition called alcohol nystagmus. Garbled speech is also a sign of stroke.

Justice Sproat stated at paragraph 68:

“The evidence of the defence witnesses on the subject of Ms. Boyd’s alcohol consumption leads me to conclude that… they had crossed the line from objectivity to advocacy.”

Justice Sproat stated further at paragraph 74:

“I found the efforts of the defence witnesses to justify Dr. Edington’s inclusion of alcohol in his differential diagnosis completely unreasonable. I further find that the defence experts exhibited partiality and advocacy in their evidence in this regard.”

High Stakes

As the amount of damage awarded in the Boyd v. Edington case shows, in medical malpractice cases there is a lot at stake. Experts are paid a great deal of money to provide the court with their opinion in order to assist the court in rendering a fair and just decision.

When defence witnesses cross the line from impartial experts to hired guns it hurts not only the plaintiff but our entire justice system.

In Boyd v. Edington the end result worked out in favour of the plaintiff. Unfortunately, that is not always the case.
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