Halifax Medical Malpractice Lawyer Blog

Why Did You Write The Book?

I get asked that a lot. There's a ton of work that goes into writing a book about medical malpractice claims. Most books about the topic are written by lawyers, for lawyers, and they are pretty dry reading.

I wanted to write a book that the average person could pick up and read and come away better educated and informed about the medical malpractice claims process and what is involved in filing a medical malpractice claim.

What Makes a Good Doctor?

The British Medical Journal once surveyed people in 24 countries around the world and asked them: “What makes a good doctor?”

The answers included qualities like compassion, understanding, honesty, humanity, competence, commitment, empathy, respect, creativity and a sense of justice.

What Makes a Good Lawyer?

I believe that the qualities shared by great doctors are also traits shared by great lawyers. Especially, a sense of justice.

Since graduating from law school I have devoted my career to trying to help people who truly need help, people looking for fairness, people who need justice.

That is why I do medical malpractice litigation and that is why I wrote The Consumer’s Guide to Medical Malpractice Claims in Canada. To provide information to people who have been seriously injured as a result of medical malpractice. To help people who have been betrayed by the person or persons that they had to trust the most, their doctor, their nurse, their health care provider.

Most Victims Never File a Claim

Every research study that has been done about medical malpractice claims has concluded that most victims of medical malpractice never contact a lawyer or file a claim.

What You Need to Know

You may not actually have the grounds for a medical malpractice claim, but you do need to have certain important information to know if you have a potential claim and what you need to do to protect your rights if you have been a victim of medical malpractice.

I wrote The Consumer’s Guide to Medical Malpractice Claims in Canada so that people who may have suffered a loss as a result of medical malpractice can have this information.

Continue reading " The Consumer’s Guide to Medical Malpractice Claims in Canada " »

You may have a medical malpractice claim if you have been injured as a result of a preventable error or negligent care while receiving medical treatment.

Most Medical Injuries Preventable

A famous study by Harvard Medical School determined that over half of all injuries caused by medical mismanagement (in other words, not caused by the patient’s initial injury or disease) were preventable, and another quarter of those incidents were caused by negligence.

Canadian Medical Association Report

A report published by the Canadian Medical Association (CMA) Journal confirmed the findings of similar studies in the United States, Australia, the United Kingdom, Denmark and New Zealand.

The C.M.A. study concluded that:

1. As many as 24,000 patients die each year due to “adverse events” (doctor’s code word for a bad result or a mistake).

2. 87,500 patients admitted annually to Canadian acute care hospitals experience an adverse event.

3. 1 In 13 adult patients admitted to a Canadian hospital encounter an adverse event.

4. 1 in 19 adults will potentially be given the wrong medication or wrong medication dosage.

5. 37% of adverse events are “highly” preventable.

6. 24% of preventable adverse events are related to medication error.

5 Million Medical Mistakes

A report by the Canadian Institute for Health Information indicated that nearly ¼ of Canadian adults (that’s 5.2 million people!) reported that they, or a member of their family, had experienced a “preventable adverse event”. In other words, a medical error.

So there you have it, nearly ¼ of all Canadians, or a member of their family, have experienced a preventable adverse event that may be the result of medical malpractice.

Mistakes May Not Be Negligence

Not all mistakes are the result of negligence and just because a doctor was negligent does not necessarily mean you have a viable medical malpractice claim. That’s why I wrote The Consumer’s Guide to Medical Malpractice Claims in Canada. So that patients and their family members who may have suffered an injury as a result of medical malpractice can learn what they need to know to determine if they have a legitimate medical malpractice claim.

You can get a free copy of my book by contacting me through this blog or by calling my office toll-free 1-877-423-2050.

When someone dies unexpectedly, or suffers a serious but unexpected injury, while they are in a hospital or under the care of a doctor, it is human nature to assume that the hospital or doctor must have made a mistake. Many clients come to me and say: "How could this have happened? The doctor must have screwed up!"

We all want to believe that when something really bad happens to good people, someone will be held responsible. But that is not always the case.

Burden of Proof

The plaintiff (you) has the burden (responsibility) of proving your claim.

Beyond Reasonable Doubt

Anyone who has watched Law & Order or similar shows on television has heard the term: “proof beyond reasonable doubt”. But that is not the burden that applies in a medical malpractice claim. That is the burden of proof that applies to criminal prosecutions.

Balance of Probabilities

In a medical malpractice compensation claim you have the burden of proof: “on the balance of probabilities”. In other words, is it more likely than not that the doctor (or nurse or other health care provider) was negligent and did that negligence cause your injuries?

Scales of Justice?

The easiest way to understand this burden is to consider a pair of scales. All of the evidence for your claim is placed on one side of the scale. All of the evidence against your claim is placed on the other side of the scale. As long as the scales tip to the side for your claim, even a little bit, then you have met the burden of proof on the balance of probabilities.

What Does OJ Have to Do With The Burden of Proof?

OJ Simpson is a living example of the difference between the criminal and civil standards of proof. As everyone in the world now knows, O.J. Simpson was acquitted of murdering his wife, Nicole Simpson and her friend Ron Goldman because the jury did not believe that the prosecutors had proven the criminal charges beyond reasonable doubt.

However, when the Goldman family sued O.J. Simpson civilly for causing Ron Goldman’s death, the jury decided that the family had proved on the balance of probabilities that O.J. Simpson was responsible for Ron Goldman’s death.

Continue reading " Medical Malpractice Claims: The Burden of Proof and O.J. Simpson " »

Most of my medical malpractice clients have suffered catastrophic injuries that prevent them from being able to return to work or, in the case of infants and children, will prevent them from ever being able to work.

Economic Losses from Medical Malpractice

There are 2 ways to calculate economic losses suffered as a result of medical malpractice. The court will have to determine whether you have suffered an actual income loss or whether you have suffered a diminished earning capacity.

Income Loss from Medical Malpractice

If your are injured as a result of medical malpractice and your injuries prevent you from being able to work for days, weeks, months, or permanently then you can make a claim for the actual income you have lost as a result of the medical malpractice.

Income loss includes both:

Past Income Loss: You are entitled to be compensated for your actual income loss up to the date of settlement or trial. Usually this loss is one that is capable of being calculated fairly accurately. For example, if you were being paid $500.00 a week and you can't work for 4 weeks as a result of your injuries, you are entitled to receive 4 weeks pay ($2,000.00) to compensate you for your past loss of income.

Future Loss of Income: If your injuries are going to prevent you from being able to work in the future, you are also entitled to be compensated for that loss. Unfortunately, there is no such thing as a crystal ball. Claims for future loss of income can be difficult to calculate with precision. No one knows, for sure, what the future will hold.

When valuing a claim for future loss on income, the court will have to consider whether your injuries will prevent you from being able to work for two months, two years or forever.

Calculating claims for future income loss usually requires us to retain the services of an actuary or an economist who are experts in calculating past and future income loss claims. These experts take into account factors like cost of living increases or raises that you would be entitled to receive during your career, the normal retirement age for persons of similar employment, the pension benefits you would expect to receive on retirement, and a host of other factors.

Diminished Earning Capacity:

In some cases, the evidence may prove that you, or your family member, will never be able to work. However, we may not be able to calculate exactly what that loss will be. For example, when a 3 ½ year old child suffers a severe brain injury, who is to say whether that child would have grown up to be a plumber, a doctor, or a rock star?

In cases where the exact amount of the future income loss is not certain, the court will consider awarding, compensation for what is called “diminished earning capacity”.

Everyone’s ability to work is an asset. In other words, your physical abilities, education, training and experience are all assets that provide you with the opportunity to earn an income. If any or all of those abilities have been limited or reduced to some extent by your injuries, you may be entitled to an award for diminished earning capacity.

Again this type of claim usually requires us to hire experts to calculate exactly how reduced your ability to work is and to what extent your ability to earn income has been diminished.

Continue reading " Income Loss in Medical Malpractice Claims " »

The goal of the court in any claim for compensation for personal injuries is to try and put the injured person (or their surviving family members) in the same position they would have been had the negligence (malpractice) not occurred.

Money cannot replace the loss of a loved one or truly compensate for the loss of a limb or a catastrophic injury. But the courts try to provide a fair and reasonable measure of financial compensation to innocent victims who have been injured as a result of the negligence of others.

These basic principles apply to all compensation claims, including medical malpractice claims.

Non-Pecuniary Damages: Pain and Suffering

A non-pecuniary claim is one that does not result in a direct out of pocket financial loss but is still considered to be worthy of compensation. Non-pecuniary damages are sometimes referred to as compensation for “pain and suffering” but they cover any non-financial loss.

A better way to describe non-pecuniary damages is that it is compensation for pain and suffering and loss of amenities of life. In other words, the court tries to compensate the injured person for their pain and the loss of all of the enjoyable activities that they were able to perform before they were injured.

How Do The Courts Calculate Pain and Suffering?

There is no such thing as a “pain-o-meter”. A medical malpractice victim cannot be hooked up to a machine that prints out the financial value of their pain. What a judge (or jury) does in determining your compensation for pain and suffering in a medical malpractice claim is use their experience and discretion to consider how your injuries have limited your ability to function, your normal day to day activities, your hobbies or your ability to work?

Cap on Compensation Claims

The Supreme Court of Canada has placed a cap on the amount of compensation that medical malpractice victims can receive for non-pecuniary damages. The cap was set in 1978 at $100,000.00, taking inflation into account, it is now generally accepted to be around $300,000.00.

But that amount is only paid to the most severely injured victims. If you are considering a medical malpractice claim for non-pecuniary damages, it is important to have an experienced lawyer assisting you to ensure that you provide the court (or the jury) with all of the relevant information that they will need to consider when assessing your claim for “non-pecuniary damages”.

Continue reading " Medical Malpractice Claims: What can I get compensated for? " »

The latest edition of my book, The Consumer’s Guide to Medical Malpractice Claims in Canada: Why 98% of Canadian Medical Malpractice Victims Never Get a Penny in Compensation, is now on its way back from the printers.

You can get a copy of the book by contacting me through this blog. However, I am going to be posting excerpts from the book over the next few weeks to give you a taste of the information contained in the book.

Lynn Butler sent me a very kind note after reading a copy of the book. Here is what she had to say:

“I found The Consumer’s Guide to Medical Malpractice Claims most helpful. I would definitely recommend the guide to anyone seeking information: it was very informative, factual and easy to read. I would certainly recommend the guide to anyone wondering if they have grounds for a medical malpractice lawsuit.”

Jeff Baggaley contacted me about a pediatric medical malpractice claim. After reading the book he sent me a note to say:

“I have read your book on pursuing a malpractice claim in Canada. Let me say at the outset that your book is an invaluable and excellently written introduction to essential information which the possible claimant needs to know.

As you say, it saved me a lot of time for I am able to read it, and re-read it, as time permits. I very much appreciate the service your book provides.”

If you think you or a family member may have been a victim of medical malpractice you can contact me through this blog for a free copy of my book or you can call me toll free at 1-877-423-2050.

Caps on Medical Malpractice Compensation

Several jurisdictions in the United States have a cap on the amount of compensation that victims are entitled to receive in their medical malpractice claims. The amount of the cap, and what is capped, varies state by state.

No Malpractice Caps in Canada (sort of)

In Canada, while there are no caps specifically targeted at medical malpractice claims, the Supreme Court of Canada has created a cap that applies to all serious personal injury claims.

Since most people who contact me for medical malpractice claims have suffered catastrophic injuries, the Supreme Court of Canada’s ruling effectively caps the amount of compensation they are entitled to receive.

Supreme Court Caps Claims

In 1978 in a landmark case known as Teno v. Arnold the Supreme Court of Canada ruled that no matter how seriously injured you are the maximum amount for compensation you can receive for non-pecuniary damages (what is commonly referred to as “pain and suffering”) is $100,000.00.

Cap Supposed to Lower Insurance Rates

The reasoning behind the cap was primarily to prevent insurance rates from skyrocketing and becoming unaffordable for consumers. Unfortunately there was little evidence before the court that insurance rates would be effected by a compensation cap.

Taking inflation into account the amount capped on pain and suffering is currently considered to be slightly more than $300,000.00. But that maximum amount is only paid to the most catastrophically injured victims, persons who suffered quadriplegia, severe brain damage and similar injuries.

Victims Often Don't Get Full Award

Even plaintiffs that receive awards that seem large often never see the amount decided by the judge or jury. Many personal injury compensation awards are dramatically reduced on appeal. These reduced or reversed judgments are almost never reported by the media.

But doctors in Canada are not insured by for profit insurance companies like in the United States. In Canada malpractice coverage is provided by a non-profit defence fund called the Canadian Medical Protective Association. Consumers don't pay for this insurance, so rising rates are not an issue.

Given the enormous costs of pursuing a medical malpractice claim, the Supreme Court of Canada’s cap on compensation presents a real barrier to fair recovery for innocent victims of medical malpractice.

Is It fair?

What do you think? Is it fair that compensation for malpractice victims is capped? When a patient is injured as a result of a doctor's negligence is it fair that the victim's compensation is capped so that the doctor may have lower insurance premiums?

Continue reading " Medical Malpractice Compensation Caps: The Difference Between the United States and Canada " »