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.


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.


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.


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.


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.


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


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" »

May 29, 2013

Supreme Court of Canada Upholds Judge’s “Copycat” Decision (In Part): Cojocaru v. British Columbia Women’s Hospital and Health Centre

Last week, the Supreme Court of Canada (SCC) issued a decision in a complicated medical malpractice case that raised the issue of when it is appropriate for judges to incorporate reasons taken from the briefs of one of the parties.


In Cojocaru v. British Columbia Women’s Hospital and Health Centre the mother, Monica Cojocaru had previously given birth by C-section. On the recommendation of her obstetrician, Dr. Yue, Ms. Cojocaru agreed to delivery of her baby, Eric Cojocaru, by “vaginal birth after Cesarean section”, otherwise known as VBAC.

During the labour, Ms. Cojocaru suffered a ruptured uterus (a known risk of VBAC) which restricted a supply of oxygen to her baby. The scar from the previous Cesarean section was the apparent reason for the uterine rupture. An emergency C-section had to be performed. However, Eric suffered brain damage causing cerebral palsy.

At trial, Eric and his mom brought a claim against the hospital, the nurses that were attending during the delivery, Dr. Yue, and the other physicians that treated mom during the delivery.
At trial, the nurses and doctors were found liable by the trial judge and the plaintiffs were awarded the sum of $ 4,000,000.00 in compensation.

Copycat decision

Although the judge rejected some of the plaintiffs’ submissions and discussed the legal issues and his conclusions in his own words, the trial judge’s reasons were copied almost entirely from the Plaintiffs’ written briefs.

The Defendants appealed on the basis the Judge’s plagiarism gave rise to an appearance of unfairness that merited overturning the judgment.

The British Columbia Court of Appeal agreed, and overturned the trial judge’s decision and sent it back for a new trial.

The parties appealed to the Supreme Court of Canada.

The unanimous decision of the Court was written by Chief Justice McLachlin.

Originality “desirable” but not required

McLachlin C.J. succinctly dealt with the main ground for the appeal:

“The main question on this appeal is whether a trial judge’s decision should be set aside because his reasons for judgment incorporated large portions of the plaintiffs’ submissions. For the reasons that follow, I conclude that while it is desirable that judges express their conclusions in their own words, incorporating substantial amounts of material from submissions or other legal sources into reasons for judgment does not, without more, permit the decision to be set aside.”

Longstanding practice

The court carefully examined the “long standing practice” in the courts in Canada, and the rest of the world, to incorporate portions of the written submissions made by the parties into written decisions.

The Court pointed out that judicial decisions can be set aside for a substantive legal error or a procedural error. A complaint that a judge’s decision is not sufficiently original, or has been plagiarized from a party’s brief is a procedural complaint. In other words, it does not go to the legal merits of the decision about whether the decision was reached in a procedurally manner.

The Court decided that copying, in whole or in part, submissions from various parties did not, in and of itself, constitute an error.

Cutting and Pasting raises concerns

However, the more a judge incorporates the unchanged written submissions of one party or another, the greater the concern that the judge has not independently and impartially reviewed the evidence and arguments.

The Court pointed out that:

“Judgments routinely incorporate phrases and paragraphs from a variety of sources, such as decided cases, legal treatises, pleadings, and arguments of the parties. … Often the sources are acknowledged, but often they are not.”

McLachlin C.J. stated, whether acknowledged or not, such passages are part of the judicial writing process and do not render the process procedurally unfair.

Independent assessment critical to judicial process

The greater concern is whether wholesale incorporation of a party’s written arguments suggest a Judge did not independently assess the facts and evidence.

In the case of the Cojocaru claim, the Supreme Court stated:

“Taking full account of the complexity of the case, and accepting that it would have been preferable for the trial judge to discuss the facts and issues in his own words, I cannot conclude that the trial judge failed to consider the issues and make an independent decision on them. On the contrary, the fact that he rejected some of the plaintiffs’ key submissions demonstrates that he considered the issues independently and impartially.”

“Better” not to copy

The quote went on to say:

“It would have been better if the reasons had not copied extensively from the plaintiffs’ submissions. However, to set aside the decision of the trial judge requires more. To rebut the presumption of judicial integrity, the defendants must establish that a reasonable person apprised of all the circumstances would conclude that the trial judge failed to consider and deal with the critical issues before him in an independent and impartial fashion. The defendants have not done so.” [Emphasis added]

Findings upheld

In the end, the SCC upheld the trial judge’s finding of liability against Dr. Yue, and ordered that Dr. Yue pay the full and entire amount of the award to the plaintiffs.

So, thirteen years after the birth of Eric Cojocaru, the boy, now a young man, finally achieves justice.

May 24, 2013

Appeal Court Upholds Jury Decision in Med Mal Trial: Goodwin v Olupona

Judge or Jury?

In most provinces in Canada, it is possible to have a civil case tried by judge alone or by judge and jury. I discussed this recently in an article on my Halifax Personal Injury Lawyer Blog, Do I have a right to a jury trial in personal injury claims?

The Nova Scotia Supreme Court recently stated in Anderson v. Cyr, a claim arising out of a motor vehicle accident:

“...there is a longstanding, traditional and substantive right of a party to a civil action in this province to a jury trial.”

Too complicated for a jury?

However, in the Anderson case, the court decided to strike out a request by the defendant to have the claim hear by judge and jury. Justice Wright decided that the combination of the large number of expert witnesses, the scientific and technical evidence to be submitted, the complicated damages issues and the length of the trial established “cogent” reasons to hold the trial in front of a judge alone.

That is not to say that juries are not capable of making a reasonable and fair decision in long trials with many experts that involve complicated medical and legal issues.

The Ontario Court of Appeal recently faced the question of whether or not they should overturn a jury’s decision in a complicated medical malpractice case: Goodwin v Olupona.


In the summer of 2002, Debra Goodwin gave birth to a twin boy and girl. Unlike his sister, Adam, the baby boy, was injured prior to birth and was subsequently diagnosed with spastic quadriplegia. Mr. and Mrs. Goodwin sued the health professionals and the hospital involved in Adam’s delivery.

Following a 32-day trial, and 8 days of deliberations, the jury found Nurse Burhanpurkar 75%liable and the hospital 25% liable for the injuries. The nurse and hospital appealed the jury’s decision.

The appellants argued the jury’s verdict was unreasonable in that it was not supported by the evidence and that the charge to the jury contained errors.

Court of Appeal

The Court of Appeal began their analysis by recognizing that a jury’s verdict will only be set aside if it is “so plainly unreasonable and unjust as to satisfy the court that no jury reviewing the evidence as a whole and acting judicially could have reached it.”

And that, “where there is some evidence to support the verdict, a jury will be accorded a high degree of deference.”

Expert required to prove standard of care?

The hospital argued that since there was no expert evidence with respect to the hospital’s standard of care, the jury had no basis to conclude the hospital was negligent. However, the Supreme Court of Canada had previously decided that it was open for a jury to find there was a breach of the standard of care without expert evidence (ter Neuzen v. Korn).

The Court of Appeal noted that whether expert evidence would be required turned on whether the nature of the issue could be decided on the basis of knowledge possessed by the jury, or on the other hand, if it required expert evidence because it went beyond the knowledge of the average juror.

Common sense

The Court of Appeal found that the juries finding that a hospital must provide staff and facilities capable of meeting the needs of patients is within the abilities of an average juror.

Seems like common sense right? If you are running a hospital you should ensure the hospital is properly staffed to meet the needs of the patients. Anyone need an expert to tell them that?

The Court of Appeal also rejected the Nurse’s argument that the jury had inadequate evidence to establish causation between her actions and the harm. The Court found that there was such evidence:

[75] In my view, there was evidence capable of supporting the jury’s findings of negligence and causation – that on a balance of probabilities but for Nurse Burhanpurkar’s failure to properly monitor the FHRs, for which the nurse and hospital bear a degree of responsibility, it was likely that Adam’s injury could have been avoided.

With respect to the charge to the jury the Court noted that an appellate court should not hold a trial judge’s charge to a jury to a standard of perfection. Rather the focus should be on whether or not the jury would have properly understood the law. The Appeal Court held that the jury was properly charged with respect to the “but for” test. They additionally found that none of the facts omitted by the trial judge were so important that their omission resulted in a substantial wrong. Finally, the Court concluded that the jury would have understood the law.
The Court of Appeal concluded by noting that the verdict of the jury was entitled to deference.

The appeal was dismissed and the respondents were awarded $40,000.00 in costs.

Common sense

This case is a perfect example of a jury exercising common sense in reaching it's decision and the Court of Appeal's ruling in this case simply reflects the fact that just because there may be complicated questions involved in a trial, not all of the answers are complicated.

Sometimes the answers are just common sense.

Here in Nova Scotia, parties to a lawsuit have a longstanding right to a jury trial and deference should paid to the ability of the average juror to hear the evidence and reach a decision that is based both on the evidence and on common sense.

May 17, 2013

Medical malpractice litigation helps improve patient care

I read with interest this article in the New York times written by Joanna Schwartz, a professor of law at the University of California, Los Angeles.

One of the (false) arguments trotted out by oppontents of medical malpractice litigation is that it prevents disclosure because doctors and hospitals take a "circle the wagons" approach to litigation that inhibits sharing of information that could improve patient safety.

However, a study done by Ms. Schwartz showed just the opposite:

My study also shows that malpractice suits are playing an unexpected role in patient safety efforts, as a source of valuable information about medical error. Over 95 percent of the hospitals in my study integrate information from lawsuits into patient safety efforts.

Access to Justice Improves Patient Safety

I have said it before but I think it is worth repeating. The ability of patients to seek accountability through the courts is a fundamental part of our civil justice system. Medical malpractice litigation plays an important part in improving patient safety by pointing out medical errors and how they can be corrected/prevented.

Ms. Schwartz notes:

But participants in my study said that lawsuits can reveal previously unknown incidents of medical errors — particularly diagnostic and treatment errors with delayed manifestations that other reporting systems are not designed to collect.

Want more information?

Want to learn more about how Canadian victims of medical malpractice are helping to improve our health care system? Get a copy of After the Error.

Although I contributed to the book I don't receive any financial benefit from sales. I just think that the book is an important step towards greater transparency in our health care system. The authors, Susan McIver and Robin Wyndham are passionate advocates for patient safety.