Halifax Medical Malpractice Lawyer Blog

More on the cancer screening fiasco unfolding in New Brunswick. The Miramichi Hospital claims in a lawsuit filed by the disgraced pathologist that is the subject of potential criminal charges that there were issues about the doctors work as far back as 1998.

Dr. Rajgopal Menon was suspended by New Brunswick's College of Physicians and Surgeons following a complaint from the Miramichi Regional Hospital Authority about Menon's "deficient practice" involving "erroneous interpretations of surgical specimens."

Menon sued the Hospital over the allegations. In a defence filed by the Hospital Authority officials claims that Menon's:

"lack of professional standards have resulted in patients being placed at risk as well as other physicians, and in particular surgeons, who must rely on (him) for accurate and timely pathological diagnosis."

The Hospital's allegations are a double edged sword. If the facts in the defence are correct, it may mean that cancer patients who have been "placed at risk" (not able to receive timely treatment) due to Menon's "lack of professional standards" may have a potential medical malpractice claim against the Hospital Authority for failing to take proper steps to ensure patient safety when it became aware of the risks due to Menon's "lack of professional standards".

The Canadian Press has reported the story of one man whose father died of cancer in 2007 just weeks after the disease was discovered by his doctors in Tracadie, New Brunswick.

The man's son, Roger Vautour:

...was told by officials at the Miramichi Hospital that laboratory tests on his father in 2003 were handled by Dr. Rajgopal Menon and will be part of a comprehensive review of the pathologist's work.

The "comprehensive review" is going to involve over 15000 test results from potential cancer patients stemming back more than a decade! The potential liability for the doctor, and the Health Authority, is difficult to fathom.

A New Brunswick doctor faces potential criminal charges and possible liability for medical malpractice as a result of an investigation into negligent cancer screening.

Pathologist Dr. Rajgopal S. Menon was suspended by New Brunswick's College of Physicians and Surgeons last year after a complaint from the regional health authority that he put patients at risk by missing instances of cancer following evidence of negligence in breast and prostate cancer biopsies performed by Menon in 2004 and 2005.

The latest review is going to include 15,000 cancer screening tests performed by the doctor stretching all the way back to 1995.

The Canadian Press reported that Health Minister Mike Murphy has asked the RCMP to determine if there was criminal negligence in the doctor’s handling of the tests:

"It’s as serious as it gets," Murphy told a news conference in Fredericton.

"It is very difficult to speculate as to whether anyone has lost their life, but it would not be unlikely. . . . We do know of a number of cases where he completely missed the diagnosis and rendered it benign when in fact it was malignant."

If the doctor's faulty test results caused a misdiagnosis of cancer, a delay in receiving proper treatment, or death as a result of misdiagnosis Menon is sure to be facing claims from cancer victims seeking compensation for medical malpractice.

The problem is that the time limit in New Brunswick for filing claims for medical malpractice is two years from the date of the negligent act. If the misdiagnosis took place more than two years ago, where does that leave cancer victims' and their families?

The answer may be found in the decision of the Supreme Court of Canada in Novak v. Bond and the Ontario Court of Appeal in Urquhart v. Allen Estate.

Continue reading " Negligent Cancer Screening in New Brunswick May Lead to Criminal Charges and Medical Malpractice Claims " »

Medical errors (Iatrogenic events) among newborns are common and often preventable according to a recent article in the journal Lancet.

In the report To Err is Human, medical errors were estimated to have caused 44,000 deaths in the U.S. every year. A similar Canadian study estimated medical errors kills 24,000 Canadians each year.

However, available reports have focused mainly on adults and (older) pediatric patients, not newborn babies, who are a high-risk group.

The authors of the study found that the main risk factors for new borns who experienced a medical error were low birthweight and gestational age; length of hospital stay; a central venous line; mechanical ventilation; and support with continuous positive airway pressure.

"This study allows the cause, severity, and preventability of iatrogenic events in neonatology to be defined," the authors said. "A third of all iatrogenic events and more than a quarter of severe iatrogenic events were preventable. Iatrogenic events seem to be less preventable in neonates that in adults and children, in whom 40-60% of adverse events are preventable."

The authors of the Lancet article conclude that 40-60% of adverse events (medical errors) are preventable. The Canadian study estimated that 37% of adverse events were "highly" preventable. Unfortunately there are no Canadian standards that require the reporting of medical errors.

Clearly Hospitals in Canada and the U.S. have significant room to improve patient safety.

Prescription errors are a major problem for elderly patients, according to a new study published in the journal Medical Care, the official journal of the American Public Health Association.

The authors of the study found that 26.2% of elderly patients who participated in the study received inappropriate or suboptimal drugs as treatment. However, patients who received care from geriatric specialists had significantly lower rates of prescription error.

The authors of the study suggest that seniors make sure that they have a very good primary care physician (family doctor) and that they consider seeing a geriatrician for complex healthcare management needs or multiple chronic disease management.

A report published in the May 25, 2004 edition of the Canadian Medical Association Journal entitled: "The Canadian Adverse Events Study: the incidence of adverse events in hospital patients in Canada" had similar findings.

Some of the highlights include:

24,000 patients die each year due to “adverse events” (medical mistake).
1 in 13 adult patients encounter an adverse event.
1 in 19 adults will be given the wrong medication or wrong medication dosage.
24% of preventable adverse events are related to medication error.

The most common areas for an adverse event to occur was surgery followed by medicine related errors.

Unfortunately, the solution suggested by the American Public Health Association; make sure you have a good family doctor and see a gerontologist; just doesn't work for many Canadians.

5 million Canadians do not have a family doctor. How are these people supposed to receive quality medical care when they cannot even find someone to manage their basic medical needs?

Thanks to the lawyers at the D.C. Med Mal Blog for posting the journal report.

The medical treatement that cancer patients receive depends on the personal characteristics on the doctor treating the patient, according to a new study published in the Journal of the National Cancer Institute.

According to the study:

...adjuvant radiotherapy following breast conservation surgery (BCS) is considered to be an indicator of quality of care for the majority of women with breast cancer, but many women do not receive adjuvant radiotherapy.

The study confirmed the results of previous research that indicated a patient's personal characteristics (age, race, marital status etc.) determined the level of care received.

However, the study also found that the doctors characteristics also played a role in whether patients received the expeceted level of care. The study found that patients were more likely to receive adjuvant radiotherapy if they had a surgeon who was female, had a medical degree (as opposed to an osteopathicdegree), or was trained in the United States.

Given the differences in the delivery of medical care here in Canada and the United States, one cannot assume the reports findings would carry over to Canada. But the issue is one worth studying.

A psychiatrist who misjudged a patient's risk of suicide was found not to have been negligent when the patient subsequently committed suicide.

In Buyze v. Malla the deceased, Mr. Buyze had been treated several times by various doctors for depression and suicidal thoughts. He was seen in the emergency department by the on-call psychiatrist, the Defendant Dr. Malla who diagnosed him with:

...major depression with anxiety and a history of suicidal ideation...

Buyze was admitted to the psychiatric ward of the Hospital. He subsequently left the Hospital ward and was later found to have comitted suicide by over dosing. After Mr. Buyze's body was found, the Defendant Malla added the words “no attempts/no plans.” to his diagnosis of Mr. Buyze.

The trial judge ruled that:

...history has proved that Dr. Malla erred in his assessment of Mr. Buyze’s risk of suicide. I am not persuaded, however, that Dr. Malla breached the standard of care expected of a reasonably prudent psychiatrist.

The court stressed that an error of judgement is not necessarily negligence and that the court must be careful not to judge an individual’s conduct on the basis of consequence alone.

The court quoted a decision from the New York Court of Appeal in Fiederlein v. City of New York Health and Hospitals Corporation where the American Court said:

The prediction of the future course of a mental illness is a professional judgment of high responsibility and in some instances it involves a measure of calculated risk. If liability were imposed on the physician…each time the prediction of future course of mental disease was wrong, few releases would ever be made and the hope of recovery and rehabilitation of a vast number of patients would be impeded and frustrated. This is one of the medical and public risks which must be taken on balance, even though it may sometimes result in injury to the patient or others.

The Buyze decision highlights the difficulty of psychiatric malpractice claims. In most medical negligence claims the expected outcome of a case can be accurately predicted on the basis of accepted scientific and medical evidence.

However, in psychiatric cases the outcome often involves not only considering the scientific and medical evidence, but the vagaries of human behavior. The courts are loathe to hold doctors responsible for failing to forsee the inherently unpredictable behavior of psychiatric patients.

An obstetrician's failure to obtain informed consent was not the legal cause of an infant's brain damage, according to a decision from Ontario.

The Ontario Court of Appeal just released a ruling upholding a trial decision dismissing a claim of obstetric malpractice.

In Cruz v. Robins the trial judge held that the use of forceps during the infant plaintiff's delivery caused the baby's brachial plexis injury and brain damage. The judge found that the parents, Mr. and Mrs. Cruz should have been consulted and should have been informed of the option of a caesarean section and its risks. Further, he found that they should have been advised of the risks involved in proceeding with a mid-forceps delivery. Nevertheless, the trial judge concluded that had the appellants been advised and given the choice, the same result would have occurred.

In other words, even if the parents had known the risk, they would have agreed to assume the risk.

Even though the plaintiff's were able to prove that the defendant doctor was negligent in failing to obtain proper informed consent, they were not able to prove that the failure would have changed the outcome of the delivery. The Court of Appeal repeated the words of the trial judge who said:

[Dr. Robins’] failure to seek and obtain informed consent is of no consequence to the outcome of this case. The same procedure would have been pursued and the same results would have been experienced.

The decision highlights the huge hurdles plaintiff's face in medical malpractice claims and why 98% of Canadian victims of medical malpractice never recevieve compensation for their injuries.

In Canada there are no national standards or policies regarding the disclosure of medical errors ("adverse events") to patients. Provinces and health care organizations have been left to decide for themselves what obligations health care providers have to disclose medical errors to patients.

In 2005 The Canadian Patient Safety Institute (CPSI ) formed a committee to create national guidelines for the disclosure of "Adverse Events".

In 2007 CPSI released their draft national guidelines for consultation with various national and provincial health care organizations.

The results of CPSI's consultations are outlined in this report.

I found the results of the consultation interesting. 81% of those surveyed during the consultation claimed that their organization had developed a policy or procedure for disclosure of adverse events (medical errors).

But more than half of those surveyed (53%) said their organization doesn't offer training (or they don't know if training is offered) regarding disclosure of adverse events.

I have said it before, health care policies can be helpful but only if health care professionals know what the policies are and are properly trained in how to apply the policies.