September 19, 2014

Medical Malpractice Claims against Doctors Continue to Drop: But is it because of improvements in medical care?

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.

August 19, 2014

Are Overworked Nurses Causing Medical Errors?

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.

August 18, 2014

Nova Scotia Medical Errors Registry a Step in the Right Direction: Still a Long Way to go

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.

July 28, 2014

How often does Medical Malpractice happen in Canada? The answer may surprise you.

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.

Conclusion

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.

June 20, 2014

What is the Safest Time to be admitted to Hospital? Weekend Admissions Carry Higher Risk of Death.

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.

Continue reading "What is the Safest Time to be admitted to Hospital? Weekend Admissions Carry Higher Risk of Death." »

March 25, 2014

Defence Experts “Crossed the Line”: Boyd v. Edington

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.

Continue reading "Defence Experts “Crossed the Line”: Boyd v. Edington" »

March 3, 2014

Cost of Care in Cerebral Palsy Claims

I was reviewing a report the other day from an Occupational Therapist who has provided me with an opinion as to the Future Care needs for one of my clients, a child who suffers from Cerebal Palsy (CP) as a result of birth trauma.

I was struck by how sophisticated experts in this field have become and how advances in technology have created products that can help reduce some of the significant challenges that victims of CP (and their familes) face in trying to lead a normal productive life.

What causes CP?

I have written several articles about CP and other serious brain injuries.

CP is not a disease nor is it genetic. Rather it is an infliction that can occur through complications during birth. See for example: Cerebral Palsy Claims: The link between medical malpractice and CP.

CP happens when damaged motor centres in the brain cause abnormal muscle coordination and reflexes.

Care needs

While the effects of CP vary in each case, the assistance needed to properly care for a child with CP can be extraordinary.

However, there are a number of useful products available to help those who suffer from this affliction. I have broken the list down into 3 categories: (1) Personal movement (2) Transportation and (3) Communication.

Personal movement

Someone afflicted with CP may have trouble walking or moving around. Devices to help with personal movement can be both practical for daily life and therapeutic.

Wheelchairs: Particularly useful when both legs have been affected and walking is impossible or extremely difficult. There are different types of wheelchairs specially designed for people with CP.

Adaptive tricycles: Specially designed trike for people with special needs. These trikes can help those with CP improve their muscle strength and coordination in addition to being a fun activity.

Standing equipment: Similar to those standing scooters that parents provide to their toddlers to teach them to walk, there are a number of similar products designed to help children with CP to stand and hold themselves upright.

Bath chairs: Some people with CP struggle to sit up, making bathing difficult. There are adaptive chairs that enable people with CP to take a bath on their own. The best bet would be to talk to a physical or occupational therapist about the best type of bath chair to choose from.

Stair glides: Getting up and down stairs can be impossible for some people with CP. A mechanical lift or glide can be invaluable, especially for those in storied houses.

Transportation

Car seats: The American Academy of Pediatrics assigns different recommendations for car seats when travelling with a special needs child. Adaptive car seats will keep your child upright, secure and safe while you are on the road. The type of adaptive seat you select will depend on the extent of the child’s affliction.

Adaptive vehicles: Rather than using an adaptive seat, you may want to consider an adaptive vehicle. If your child requires the use of a wheelchair to ambulate, you may want to consider an adaptive vehicle that will allow them to travel easily with the chair.

Communication

Just as important as their ability to move around, you want your child to be able to communicate and express themselves. CP can affect speech and the ability to write, draw, and paint.

There are some specialized tools available to assist them in finding their voice.

Speech devices: Some people with CP suffer from muscle spasms in their mouth and throat area, making speech difficult. There are devices, including apps for the iPad, available to allow people with speech impediments to communicate without needing perfect voice control.

Adaptive art supplies: Children with CP sometimes have problems gripping or grasping items. This can make it difficult for them to benefit from ‘arts-and-crafts’ activities. There are special paint brushes, oversized markers and crayons and other modified art supplies that will help people with CP to express themselves artistically.

Writing tools: Similar to the art supplies, there are adaptive writing instruments to help people with CP to write or draw.

Conclusion

By making the best use of today’s technology we can improve the lives of those with Cerebral Palsy.

One of the many challenges in representing children who have suffered CP as a result of a birth injury is ensuring they are provided with sufficient compensation to help the injured child do more for himself/herself so that the child can lead a happy productive life.

Just because you have CP doesn’t mean you should miss out on everyday activities, adventures or artistic expression.


January 9, 2014

How Long is Too Long? The 30 Minute C-Section Rule: Ediger (Guardian Ad Litem) v. Johnston

This article is an excerpt from a paper I presented at the national Birth Trauma Litigation conference in Toronto. The paper considers the implications of the Supreme Court of Canada's decision in Ediger (Guardian Ad Litem) v. Johnston.

Eidger involved (among other things) allegations that the defendant failed to meet the appropriate standard of care in not performing a timely C- section.

The arguments in Ediger with respect to the standard of care required for emergency caesarean section are similar to those made more than ten years ago in Commisso v. North York Branson Hospital.

In Commisso, the attending obstetrician made the decision to proceed with an emergency caesarean section after a failed, mid-forceps trial. The time elapsed between the failed forceps attempt and the actual delivery of the baby was 17 minutes.

The plaintiffs argued the infant could have been delivered more quickly if the mid-forceps trial had been conducted in OR with a double set-up. The plaintiffs relied upon scientific literature that established permanent brain damage results from asphyxia lasting 10 minutes or more.

10 Minute Standard?

The plaintiffs claimed therefore, that any reasonable standard of care had to ensure that delivery of the baby could take place within the ten-minute time frame before permanent damage was certain.

In Commisso, the Trial Judge rejected the plaintiffs’ argument of a double set-up standard and refused to recognize a ten minute standard for emergency c-sections. Instead, the Ontario Court of Appeal stated that the appropriate standard of care as follows:

“Where a fetus is at risk … the doctor must move as expeditiously as possible to deliver the baby, having due regard for the safety of both patients—baby and mother.”

Ediger (Guardian Ad Litem) v. Johnston

One of the issues discussed by the Supreme Court of Canada in Ediger is whether the trial judge erred by concluded that the defendant, Dr. Johnston, failed to arrange for an “immediately available” surgical back-up.

The Plaintiffs argued that before proceeding with a mid-level rotational forceps delivery, the standard of care required that the procedure be undertaken in an operating room with a surgical team standing-by in the event that the forceps procedure was unsuccessful (“double set-up”). This would allow full delivery within 2 to 5 minutes of a failed forceps attempt. The trial judge specifically rejected this standard.

In the alternative, the plaintiffs argued Johnston failed to meet the standard of care by not ensuring that a surgical team was “immediately available” in the event of an emergency caesarean section was required. This standard was consistent with the guidelines of the Society of Obstetricians and Gynaecologists of Canada.

30 Minute Standard?

The defendant Johnston argued the standard of care was met by the so called "thirty-minute rule" which required a back-up surgical team to be available within 30 minutes of the decision to proceed with an emergency C-section.

Johnston argued that the standard of care required that an anesthesiologist be standing by (immediately available), but claimed that even if an operative team had been standing by in this particular situation, the plaintiff’s injuries could not have been prevented.

Standard Must be Responsive to Risk

It is well established that the degree of care required is commensurate with the potential danger to the patient. See for example Badger v. Surkan, a decision of the Saskatchewan Court of Appeal.

The Supreme Court of Canada in Ediger clearly stated the standard of care must be responsive to the risk in question and the potential harm arising from it.

The Supreme Court soundly rejected Johnston’s circular standard of care argument, finding the defendant was arguing for a standard of care that could never prevent the harm it was supposed to guard against.

“The problem with the standard of care, as interpreted by Dr. Johnston, is that it would be unresponsive to the risk in question and potential harm arising from it. … Dr. Johnston’s interpretation of “immediately available” standard of care would mean that the attending physician would never be liable for breaching the standard where fetal bradycardia results and leads to debilitating injury.”

The Supreme Court of Canada went on to say:

“… We have no difficulty concluding that the trial judge contemplated a standard of care that would have been responsive to the recognized risk of fetal bradycardia associated with mid-level forceps deliveries.”

The Supreme Court referred to “the undisputed evidence” that a baby begins to suffer injury approximately 10 minutes from the onset of bradycardia.

The Supreme Court of Canada stated at paragraph 53 of its decision:

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

Is a New Standard Necessary?

I would suggest there is universal agreement in the scientific and medical communities that permanent brain damage results when fetal bradycardia lasts longer than 10 minutes.

The Supreme Court of Canada has stated that the standard of care must be responsive to the risk in question and the potential harm arising from it. Doctors are required to provide a reasonable standard of care.

Reasonable, in this context means care based on a reasonable response to the patients clinical circumstances.

Any reasonable person, physician or otherwise, would say that if you know fetal bradycardia will cause brain damage after more than 10 minutes, then any standard that advocates for a time to delivery longer than 10 minutes is not responsive to the risk of harm.

Physicians will argue that in every hospital in Canada the 30 minute "rule" from decision to incision is the current standard of care.

But remember, the Supreme Court of Canada said in Ter Neuzen v. Korn that if the standard of care itself is negligent, the court can reject the standard.

Is 10 Minutes the New Standard?

Isn’t the inevitable conclusion that, in circumstances where fetal bradycardia is likely, the standard of care requires the attending physician be in a position to proceed with an emergency caesarean section in 10 minutes or less?

Continue reading "How Long is Too Long? The 30 Minute C-Section Rule: Ediger (Guardian Ad Litem) v. Johnston" »

January 2, 2014

Clinical Practice Guidelines as Standard of Care in Birth Injury Claims

Wikipedia defines a Clinical Practice Guideline as:

"... a document with the aim of guiding decisions and criteria regarding diagnosis, management, and treatment in specific areas of healthcare."

Clinical Practice Guidelines (CPG's) are frequently referenced in medical malpractice claims and frequently there is a debate as to whether CPG's establish the standard of care a prudent physician is required to meet in a particular circumstance.

Birth Injury Claims

Anyone who practices obstetric malpractice will be familiar with the Society of Obstetricians and Gynecologists of Canada (SOGC) policy statement on Attendance at Labour and Delivery and their various guidelines for obstetrical care and the American College of Obstetricians and Gynecologists (ACOG) guidelines for perinatal care.

The SOGC guidelines state:

"In all hospitals providing obstetrical care and birthing units, the attending physician must take into consideration the risk of each individual patient, the course of her labor, and the number of patients in labor."

The CMPA claims that CPG’s “do not define a standard of care, but may inform the standard of care.”

However, the Canadian Association of Emergency Physicians has this to say about Clinical Practice Guidelines:

“Clinical practice guidelines (CPGs) set out standard directions and approaches that assist clinicians to provide appropriate care for specific clinical conditions.”

Isn’t that exactly what the standard of care is supposed to do; provide appropriate care considering the patients specific clinical condition?

If it Quacks Like a Duck…

The CMPA may prefer to call CPG’s something other than a definition of the minimum standard of care. But because they are concise statements of what the medical profession (and obstetricians and gynecologists in particular) view to be appropriate care, the SOGC and ACOG clinical practice guidelines (CPG’s) are clearly relevant evidence to establish the legal standard of care.

CPG’s may be viewed as a base line for providing competent care depending on the patient’s individual circumstances.

Clinical Practice Guidelines for C-Section

Many obstetric malpractice cases involve allegations of undue delay in proceeding with an emergency cesarean section.

The SOGC and ACOG guidelines both suggest a hospital must have the capability of performing an emergency C-section within 30 minutes of the decision to operate.

But is there a sound basis for the 30 minute guideline and has the Supreme Court of Canada in Ediger implicitly affirmed a shorter time frame (higher standard)?

The “Science” Behind the 30 Minute Rule

Sustained bradycardia is probably the most obvious circumstance that may require an emergency C-section. There are other clinical signs that should cause a prudent healthcare professional to consider the need for emergent surgical intervention, including:

Prolonged deceleration;

Recurrent late or variable decelerations with minimal or absent variability.

Potential causes to be considered include placental abruption, excessive bleeding, uterine rupture, cord prolapse, severe preeclampsia, among others.

Most of the current scientific knowledge about the adverse effects of hypoxia, ischemia, and asphyxia come from studies on primates where the blood flow or oxygen to a primate fetus was interrupted.

How Fast Does Brain Damage Happen?

The earliest experiments suggest that acute asphyxia lasting less than 8 minutes may not cause irreparable brain damage. Asphyxia lasting more than 8 but less than 10 minutes produced some transient neurological symptoms. Asphyxia lasting more than 12 minutes caused significant and permanent brain damage.

Later studies indicated that a period of 12 to 13 minutes of total asphyxia could cause brain damage, and total asphyxia lasting more than 20 minutes typically led to the death of the fetus.

Critics of the thirty-minute-decision-to-incision rule have suggested in circumstances like complete abruption and complete cord occlusion delivery must occur in less than 5 minutes and no more than 15 minutes in order to avoid permanent damage.

Should the 30 Minute "Rule" be Changed?

There is significant scientific literature that is critical of the thirty-minute rule, and prudent practitioners must recognise the decision to perform an emergency caesarean section should not be based on an arbitrary temporal guideline but rather the specific clinical signs and symptoms in each particular case.

In my next post, I will examine the 30 minute "rule" and a recent decision by the Supreme Court of Canada that arguably suggests a new standard is necessary.

Continue reading "Clinical Practice Guidelines as Standard of Care in Birth Injury Claims" »

December 27, 2013

Standard of Care in Obstetric Malpractice Cases: Birth Injury Claims in Canada

Birth Trauma Claims

I had the pleasure of being invited to speak at the Birth Trauma litigation conference in Toronto this year. The conference was fascinating and I learned a lot from the other lawyers, physicians and nurses who presented at the conference.

I was asked to speak on the topic of Standard of Care in Obstetric Malpractice Cases.

I have had a number of calls from other lawyers asking for a copy of my paper so I thought it might be helpful to post excerpts here.

Overview

I propose to briefly touch upon the broad statements the Supreme Court has made regarding the issue of standard of care in medical malpractice claims generally, highlight how the courts have addressed this issue in obstetric cases and finally discuss the recent decision in Ediger (Guardian Ad Litem) v. Johnston, and ask the question whether the decision in Ediger has affirmed a new standard of care applicable to emergency cesarean births.

Anyone involved in medical malpractice litigation is familiar with statements from the Supreme Court of Canada in Wilson v. Swanson, and Sylvester v. Crits.

“[Physicians are] bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same experience and standing, and if he holds himself out as a specialist, a higher degree of skill is required of him than one who does not profess to be so qualified by special training and ability.”

Battle of Experts

Obstetric malpractice cases are frequently a battle of the experts in the inevitable conflict between professional witnesses called by opposing parties with respect to the appropriate standard of care.

“Given the number of available methods of treatment from which medical professionals must at times choose, and the distinction between error and fault, a doctor will not be found liable if the diagnosis and treatment given to a patient correspond to those recognized by medical science at the time even in the face of competing theories.”
Ter Neuzen v. Korn

Negligent Standard

However, Ter Neuzen also goes on to say health care professionals may still be found negligent even when acting within the generally accepted standard of care if the standard of practice itself is found to be negligent. The Court noted an accepted practice may be found to be negligent where the standard contains risks that are obvious to anyone without the aid of diagnostic or clinical expertise.

I believe this well accepted statement of law is relevant when considering the importance of the Supreme Court’s ruling in Ediger.

No Rearview Mirror

As the saying goes, hindsight is 20/20. The Supreme Court has cautioned that a trier of fact must be careful not to rely on the perfect vision provided by hindsight when assessing standard of care.

For example, in Lapointe et al. v. Chevrette, the Court stated this:

“In order to evaluate a particular exercise of [a doctor’s] judgment fairly, the doctor's limited ability to foresee future events when determining a course of conduct must be borne in mind.”

Locality Rule?

In Wilson, the Supreme Court of Canada stated:

“A medical man must possess and use that reasonable degree of learning and skill ordinarily possessed by practitioners in similar communities in similar cases.”

Is there a different standard of care for rural practitioners when compared to those practicing in an urban setting or teaching hospital? Admittedly, this is not an issue limited to obstetric claims.

The existence of a locality rule with respect to the standard of care has been found in obstetric cases in British Columbia like Simpson v. Holervich, a decision of their Court of Appeal, as well as non-obstetric cases like Mitchell v. Block, a decision of the Alberta Court of Queen’s Bench.

In yhe Newfoundland and Labrador decision Briffet v. Gander & District Hospital Board, the court held that “similar communities” means a province-wide standard:

“…viewing the standard of care on a local or small geographic basis entails the risk of setting up varying standards not truly representative of a proper standard of medical care.”

While the locality argument has not been expressly over ruled by any appellant court, the issue, at least in Ontario, appears to have been put to bed by the decision of Power J. in Crawford (Litigation Guardian of) v. Penny.

The defendant physician argued, among other things, that as a rural general practitioner, he could not be expected to provide the same level of care provided by an obstetric unit in a major urban center.

Power J. was critical of any rule that countenanced an inferior quality of medical care for rural Canadians. Power J. stated:

“It would be a sad comment indeed for the law to imply a lesser standard of care in some communities as opposed to others. This is not to say, however, that all physicians possess the same ability and have access to the same resources. These physicians and localities must recognize their limitations and refer patients, where possible, to experts and to larger medical facilities.”

Simply put, the courts recognize a physician in Meat Cove Cape Breton may not be able to get an MRI or CT scan done as quickly as a doctor in Halifax, Nova Scotia. However, both doctors are expected to know the basic standards of obstetric medicine and also recognize when they are faced with a problem beyond their expertise.

Busy Doctor Standard

Despite Crawford v. Penny, the locality rule, under a different name, still tends to come up frequently in medical malpractice litigation.

In the recent Ontario decision of McLintock v. Alidina, a non-obstetric case, the defendants raised what I call the “busy doctor” defense. The plaintiff, Anne McLintock, alleged negligence on the part of her family physician, Dr. Alidina, because Alidina failed to advise the plaintiff of the results of her mammogram testing. McLintock had to undergo a course of 25 radiation treatments and surgical intervention as a result of the alleged delay.

Alidina defended the claim, in part, on the basis that the standard of care she was required to meet as a “busy family practitioner” was lower than the standard of care described by the plaintiff’s expert, Dr. Bloom.

Bloom was former Chief of Family Medicine at Mount Sinai Hospital in Toronto and, at the time of trial, was Chief of Family Medicine at the University Health Network (Toronto Western Hospital).

Bloom testified that a significant portion of his time was devoted to management responsibilities and his clinical practice consisted of four half days and one evening per week. His evidence was that he saw on average 14 patients per day and that as a result of his association with Toronto Western Hospital, he had access to “all of the resources in the world.”

Dr. Alidina testified, on the other hand, that she saw on average 35 to 50 patients per day.

Alidina claimed the standard of care required of a busy family doctor was lower than the standard of care required of Dr. Bloom who worked in a major teaching hospital.

Shaughnessy J. specifically rejected the busy-doctor standard. At paragraph 67 of his decision, Shaughnessy stated:

“I do not accept the defense position that the volume and nature of Dr. Bloom’s practice in contrast to that of Dr. Alidina in some way defines the standard of practice in notifying a patient of further mammogram views and an ultrasound. … The standard of care applicable to a family physician in 2000 in the Province of Ontario is the same whether the patient attends the Toronto Western Hospital or a community clinic in Pickering, Ontario. Dr. Bloom and Dr. Chapman [the defendant’s expert] both agreed the standard of care for a family physician is not less for walk-in patients than it is for family patients who have booked appointments. … The family physician must provide excellent care which is responsive to the patient needs.”

Unfortunately for Ms. McLintock, her claim was dismissed on the basis of her failure to establish damages arising from Alidina’s breach of the standard of care.

Observer Variability

Significant disagreements between experts are common in obstetric malpractice cases.

Inter-observer variability, where different experts have different opinions regarding the interpretation of electronic fetal monitoring or imaging results, is the norm.

However, counsel must also be aware of the concept on intra-observer variability where the same physician may have a different opinion regarding the interpretation of the same diagnostic test when considered at a later date.

A relatively recent decision of the British Columbia Supreme Court is a good example. In Lotocky et al. v. Markle et al, Macaulay J. had to consider the opinions of various experts who offered different interpretations of a fetal heart monitor strip taken during a non-stress test.

The plaintiffs’ position was that the non-stress test was equivocal and should have resulted in further follow-up by the attending physician.

J. Macaulay reflected on the difficulty faced by judges in similar circumstances:


“The authorities referred to in my standard of care discussion are of particular significance when I consider the question of intra-observer variability as it relates to the interpretation of August 18 NST strip. Numerous experts have viewed the strip. They offered a significantly different range of interpretations of the same data, without regard to other data, including the auditory signals associated with the NST itself that an experienced nurse would pay attention to. … Even if I preferred the overall interpretation of any of the plaintiffs’ experts to that of Nurse Callander or any defence expert, I am not permitted to choose between mutually acceptable approaches just because I prefer one result over the other.”

Experts Make or Break Obstetric Cases

When leading evidence with respect to standard of care, it is not sufficient for plaintiff counsel to produce a witness who is merely critical of the defendant’s conduct. Context is important: the evidence must establish, on the balance of probabilities, that the defendant was clearly wrong when considering all of the clinically relevant evidence.

I will publish further excerpts from my paper in future posts....

November 10, 2013

Lest we forget

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July 12, 2013

Diagnostic errors costly: Medical malpractice claims in Canada vs. United States

Misdiagnosis a common cause of malpractice claims

According to a recent study in the Journal BMJ Quality & Safety, diagnostic errors (medical misdiagnosis) are the biggest cause of medical malpractice payouts in the United States.

Researchers at Johns Hopkins University reviewed a 25 year data base of malpractice claims compiled by the NatioPractitioneroner Database. The database contained details of 350,706 medical malpractice claims between 1986 and 2010.The study also measured the frequency, severity and costs of different medical malpractice occurrences.

Errors in diagnosis (misdiagnosis) made up approximately 28.6 percent of paid medical claims. This was the highest of any of the areas of medical malpractice identified.

Other causes of malpractice

The study found that the following causes of injury occurred in the corresponding amounts:

• Other causes of injury related to treatment: 27.2%

• Surgery: 24.2%

• Obstetrics (birth injuries): 6.5%

• Medication errors: 5.3%

• Anesthesia: 3%

Deadly mistakes

Interestingly, and perhaps worryingly, the most frequent type of malpractice leading to death was also diagnostic error at 40.9 percent.

Breaking down the ‘diagnostic error’ label even further, the study found that failure to diagnose was the most common diagnostic error at 54.2 percent. The remainder was made up of delay in diagnosis, at 19.9 percent, and improper diagnosis, at 9.9 percent.

Diagnostic errors are more common than you think

As a medical malpractice lawyer in Nova Scotia, I can certainly say my experience reflects the findings from the study. While surgical and birth injuries are comparatively rare, I most frequently encounter patients who have suffered injuries as a result of diagnostic errors on the part of doctors and other medical professionals.

As I have previously posted, approximately 7.5 percent of Canadian patients experience some form of diagnostic error. In this post from a few years ago I provide some advice on Patient Safety: 10 Tips to Prevent Diagnostic Errors

Continue reading "Diagnostic errors costly: Medical malpractice claims in Canada vs. United States" »