Halifax Medical Malpractice Lawyer Blog

Highest Cancer rates in Canada

Nova Scotia has the highest cancer rates in the country. According to the Canadian Cancer Society, 40% of Canadian women and 45% of men will develop cancer during their lifetime. I have been asked to review dozens of cases where clients have suffered various forms of cancer which they believe went undiagnosed by their doctor.

What Questions Should You Ask?

So what kind of questions do you need to ask to know whether you have a medical malpractice claim for failure to diagnose your cancer?

When I review a client’s claim involving someone who was injured (or died) from cancer I need to know the answers to the following questions:

Does anyone in your family have a history of cancer?

In order to properly diagnose a patient, doctors must take a patient’s history. That includes details of any significant illnesses that may run in the patient’s family. A patient whose family members have been diagnosed with or died from cancer are at higher risk of developing cancer themselves.

Therefore, if you doctor knows that you have other family members who died from cancer (or failed to ask you about this issue) your doctor may have been negligent in failing to take a proper medical history.

Were you under the care of a doctor when you think your cancer should have been diagnosed?
Unless you were seeing a doctor on a regular basis during the time frame that you were exhibiting symptoms that should have led to the diagnosis of your cancer, it will be next to impossible to establish that your doctor was negligent.

In other words, if you didn't see your doctor, how can your doctor be negligent in failing to diagnose your cancer?

Did you have any symptoms that should have warranted an x-ray?

Did you tell your doctor about any complaints or symptoms you were experiencing that should have led your doctor to request further follow-up tests that could have revealed your cancer?

What type of cancer were you diagnosed with?

This question is extremely important because there are certain types of cancer that are very treatable if they are caught early enough. In other words, if your cancer was diagnosed promptly, you may have been able to receive treatment that could have eliminated the cancer.

On the other hand, there are certain types of cancer that are almost invariably fatal. For example, by the time that a patient exhibits obvious symptoms of pancreatic cancer it is almost always too late to administer effective treatment.

What stage of cancer were you diagnosed with?

The stages of cancer are classified from stage 0 (being the least severe) to stage 4 (the most severe and deadly). If your cancer could have been diagnosed when it was in the earlier stages then it is possible that it could have been treated and eliminated.

How much time went by from the time you should have been diagnosed until the time a proper diagnosis was made?
This is one of the most important questions that we will need to answer in any case involving failure to diagnose cancer.

If a doctor fails to properly diagnose cancer but the negligence results in a delay of days or even weeks before treatment is administered, it is not likely that your medical negligence claim will be successful.

On the other hand, if the failure to diagnose results in a delay in treatment of months or years, it is far more likely that the patient will be able to successfully establish a claim for negligence.

Would the outcome be different?

Have you asked your cancer specialist (oncologist) if your treatment would be different, or your chances of recover better, if the cancer had been detected earlier?

Different types of cancer have different growth patterns and grow at different speeds. If you have a slow growing tumor, and made complaints that suggested the need for further diagnostic tests and x-rays, you may have the basis for a medical malpractice claim for failure to diagnose your cancer.

What is your prognosis?

What do the doctors think about your chances of survival and the treatment opinions that are available to you?

Are you a smoker?

This question is relevant for two reasons. Smokers are at an increased risk of developing lung cancer. That means that doctors should be looking for symptoms that may point to the possibility of lung cancer.

On the other hand, if you continued to smoke after being diagnosed, the defendant may argue that you decreased your chances of recovery.

What Happens Next?

After reviewing all of your medical records, x-rays, CAT scans and other relevant information we will need to have a medical expert review your records.

The medical expert will provide a medical-legal opinion on whether you doctor failed to meet the standard of care expected of a reasonably competent doctor and whether the breach of the standard of care caused or contributed to your cancer.

Only after all this is done will we know if you have reasonable grounds for a medical malpractice claim.

Continue reading " Failure to Diagnose Cancer: Do I Have a Medical Malpractice Claim? " »

ACOG Issues New Practice Guidelines

In the July 2009 issue of Obstetrics and Gynecology, the American College of Obstetricians and Gynecologists (ACOG) issued practice bulletin No. 106: Intrapartum Fetal Heart Rate Monitoring.

The new bulletin is the most recent statement from the College on interpretation of fetal heart rate tracings and management of labour.

Electronic Fetal Monitoring (EFM) has grown dramatically. In 1980 it was used on 45% of pregnant women to more than 85% of pregnant women in 2002. However, one of the authors of the study, Dr. George Macones, has stated that:

“Although EFM is the most common obstetric procedure today, unfortunately it hasn’t reduced perinatal mortality or the risk of cerebral palsy.”

Unfortunately, for those of us who represent children who have been injured during birth, it appears that the bulletin has been drafted to be even more protective of the practice of physicians than past clinical guidelines on the same subject.

While the data for the study may have been collected for the purpose of providing clinical guidance to obstetricians in managing labour, I have no doubt that the guidelines will be used in future medical malpractice claims to establish the standard of care for how doctors should interpret and react to different fetal tracings.

The revised guidelines have created a 3-tier classification system for EFM tracings:

Category 1 tracings are classified "normal" and do not require specific intervention.

Category 2 tracings are classified "indeterminate". They require further investigation and surveillance.

Category 3 tracings are classified "abnormal" and require immediate intervention. For example, providing oxygen to the mother, changing her position, stopping labor stimulation, treating maternal hypotension, or initiating prompt delivery if the tracings do not return to normal.

The guidelines contain a number of clinical recommendations including the following:

The false-positive rate of EFM for predicting cerebral palsy exceeds 99%.

The use of EFM is linked to higher rates of both vacuum and forceps operative vaginal delivery, as well as of cesarean delivery for abnormal FHR patterns and/or acidosis.

Recurrent variable decelerations on the FHR tracing should lead to consideration of amnioinfusion to relieve umbilical cord compression.

One of the most controversial statements in the study is that:

"Re-interpretation of the FHR tracing may not reliable; especially once the neonatal outcome is known.”

In other words, the guidelines suggest that the medical opinions of experts who have been retained to help injured plaintiffs shouldn’t be accepted because their evidence "may not be reliable".

The Guidelines fail to point out that the opposite is also true: re-interpretation of tracing may be reliable. It depends on the facts of each particular case.

Simply put, the guidelines suggest that medical experts are not entitled to “second guess” the opinion of the doctor in charge of the delivery.

The plaintiff in a medical malpractice claim bears the burden of proof. The plaintiff must provide expert evidence to establish that the defendant doctor(s) were in fact negligent!

These guidelines appear to be a transparent attempt to limit the evidence of experts who are willing to testify on behalf of plaintiffs.

It remains to be seen what weight, if any, the courts place on the guidelines.

Continue reading " Birth Injuries and Fetal Heart Rate Monitoring: New Guidelines Make it Harder to Sue? " »

Children Can Make Medical Decisions

A majority of the Supreme Court of Canada has ruled that children under the age of 16 who are capable of “mature, independent” judgment can make life or death decisions about their own medical treatment.

In A.C. v. Manitoba (Director of Child and Family Services) the court was asked to decide whether the Canadian Charter of Rights and Freedoms' guarantee of liberty, equality and religious freedom requires medical care providers to respect the decisions of children under the age of 16 to refuse medical treatment.

Opposed Medical Treatment on Religious Grounds

In 2006 the Manitoba courts issued an order authorizing doctors to provide blood transfusions to A.C., a 14 year old Jehovah’s Witness. A.C. (and her parents) opposed the transfusions on religious grounds.

The trial division ruled unanimously that it was in A.C.’s best interest to have the transfusions relying on the medical opinions of her physicians that her health and possibility her life would be jeopardized if she did not receive the transfusions.

Children Have a Say In Medical Treatment

The Supreme Court of Canada ruled that children under the age of 16, who demonstrate sufficient maturity, have a say in the medical treatments they undergo.

While the Supreme Court of Canada’s decision involved a challenge to Manitoba’s Child and Family Services Act the decision will have broader implications across Canada.

The courts ruling will not only impact child welfare cases but may have an effect on future medical malpractice claims involving injuries to children.

Do Minors have to Provide Informed Consent?

In order for a doctor to administer medical treatment to a patient, they must have the patient’s “informed consent” to provide the treatment. If the doctor fails to obtain the patient’s informed consent, then the medical treatment is an assault and injuries that the patient suffers as a result of the treatment (even if the doctor isn’t negligent) can result in a damage award for medical malpractice.

So what happens if a doctor relies on the consent provided by a teenager’s parents where the child objects to receiving the treatment? Has the physician received the proper informed consent to provide the treatment? Is the medical treatment an assault? Is a doctor entitled to rely on consent provided by a teenager who is still legally a minor under provincial legislation?

Children's Views Ought to Be Respected

Five judges on the Supreme Court appear to agree that, in the words of Madame Justice Abella:

“If, after a careful and sophisticated analysis of the young person’s ability to exercise mature, independent judgment, the court is persuaded that the necessary level of maturity exists, it seems to me necessarily to follow that the adolescent's views ought to be respected.”

I suspect the decision may have been more difficult if the parents had disagreed with their child's decision.

Informed Consent More Difficult to Prove?

Medical malpractice cases are complicated enough to begin with. Cases involving a lack of informed consent often boil down to a case of “he said, she said” where the patient argues that the doctor didn’t properly advise them of the risks of a procedure and the doctor claims that the risks were properly explained and informed consent was obtained.

As a result of the A.C. case, courts are now going to have to consider both the views of the child and the parents when administering medical treatment to “mature” minors.

What do you think? If you are a teenager, should a doctor get your permission before performing a medical procedure? At what age should ignore the parents views and seek the consent of the minor before performing a medical procedure?

Continue reading " “Mature” Children Can Refuse Medical Treatment: Supreme Court of Canada " »

Almost 100,000 Medical Mistakes Each Year in Canada

The Canadian Medical Association has determined that over 87,000 patients in Canada suffer an adverse event (medical error or mistake) each year.

The same study determined that more than 24,000 people die each year due to medical errors.

That is more than 100,000 potential medical malpractice claims in Canada every year!

Role of the CMPA

In Canada, most doctors are defended by a single organization, the Canadian Medical Protection Association (the C.M.P.A.).

Between 2002 and 2006 the C.M.P.A. reported that only 5,246 were filed against doctors in Canada. About 1,000 claims per year.

That means that out of 100,000 potential medical malpractice claims, 99% of potential medical malpractice victims never even filed a claim!

Their appears to be a perception that people are becoming more litigious, filing more lawsuits, and making frivolous claims. These statistics tell the real truth, that most potential victims of medical malpractice never receive compensation for their injuries.

Even if an injured patient or one of their family members decides to bring forward a claim, they face odds that can seem insurmountable. The C.M.P.A. has almost 3 billion dollars in assets that they can use to hire the best experts and lawyers that money can buy to defend malpractice claims.

70% of Claims Dismissed or Abandoned

According to the C.M.P.A.’s annual reports more than 70% of medical malpractice lawsuits are dismissed or abandoned before trial because the victim or their family quit, ran out of money, or died before trial.

Doctors Win 80% of Trials

Of 577 cases that went to trial over the last several years, only 121 resulted in a verdict for the victim. In other words, only 20% of medical malpractice plaintiffs who went to court actually won their trial.

Medical malpractice claims are among the most complicated, expensive and risky types of litigation. If you think you or a family member may have been a victim of medical malpractice you owe it to yourself to get the advice of a experienced medical malpractice lawyer before deciding whether or not to pursue a claim.

Continue reading " 99% Of Potential Medical Malpractice Victims Never File a Claim! " »

Household Chores = Valuable Services

Few of us think of the day to day household chores that we have to do around our home as being valuable. On the contrary, many of us view them as an annoyance.

But if you have suffered a serious physical injury you may not be able to perform the household chores and duties that you routinely did before the accident.

What would happen if you were not able to do your normal household chores/duties on a regular basis?

The dishes would pile up, your house would get filthy, your lawn would turn into a field of weeds, your sidewalk would become dangerous and icy and your house would fall into disrepair.

Defendant May Be Ordered to Pay Expenses

If the defendant is found liable (responsible) for causing your injuries, then they may be ordered to compensate you for the costs of hiring someone to perform all of the household duties that you can no longer do as a result of your injuries.

Housekeeping Costs

For example I have made claims to compensate my clients for the expense of hiring housekeepers to come into their home to do laundry, wash their dishes, make their beds, and help cook meals.

I represented a single mom who suffered a spinal cord injury and was confined to a wheelchair. We were able to recover compensation for her for the cost of hiring a childcare worker to come into her home to help care for her 2 young children until she was able to care for her children on her own.

Maintenance Costs

I have had clients who were no longer able to perform their normal household maintenance activities. We have submitted claims to cover the cost of mowing their law, shoveling their sidewalk, and even maintaining their garden.

To put it simply, a claim for loss of valuable services covers all of the normal day to day physical activities that a homeowner has to engage in to maintain their home and their property.

What You Do Has Value!

Everything you do to take care of yourself and your family has value. If your injuries prevent you from being able to perform a physical duty, chore or activity that you were able to perform before you were injured, the court will consider compensating you for the actual financial cost of hiring someone to perform those valuable services.

Continue reading " Loss of Valuable Services in Medical Malpractice Claims " »

You Lose, You Pay!

In Canada, the courts have what is known as a “loser pays” rule. What that means, in most cases, is that the person that loses a lawsuit has to pay some (or all) of the legal fees and expenses of the person that wins the lawsuit.

Discourages Frivolous Lawsuits

The theory behind the “loser pays” rule is that it is supposed to discourage frivolous lawsuits. In other words, if you know you will have to pay the defendant’s legal fees if you lose, you may think twice before filing a lawsuit that doesn’t have merit.

Discourages Legitimate Claims?

Although the idea of the loser pays rule is to discourage frivolous lawsuits, in practice it actually has the effect of discouraging people with legitimate lawsuits from pursuing their claims.

Assume, for example, that you have been seriously injured as a result of medical malpractice. You can’t work, your bills are piling up, and you can’t pay your mortgage. Then your lawyer tells you that if you file a lawsuit and lose, you might have to pay the defendant doctor or hospital tens of thousands of dollars.

What are the chances that you are going to proceed with your lawsuit? Pretty slim, right?

Injured Patients Can't Take the Risk

I have had dozens of cases over the years where impartial medical experts advised me that my client’s injuries were the result of medical malpractice. But, the injured patient decided not to file a medical malpractice claim because they were afraid that if they lost the lawsuit, they might be ordered to pay legal costs to the doctor that they had accused of medical malpractice.

Not a Level Playing Field

The sad fact is that the C.M.P.A., the organization that defends most doctors in Canada, has almost unlimited financial resources compared to injured patients who have little or no ability to finance the significant costs of medical malpractice litigation.

Being ordered to pay thousands of dollars in legal costs to a successful plaintiff when defending a negligent doctor is a drop in the bucket to the C.M.P.A.

Careful Case Selection Critical

I am extremely selective in the medical malpractice cases that I agree to take on. I will not agree to represent a patient in a medical malpractice claim unless I am convinced that their claim has merit and that the injured patient (or their family) has a reasonable chance of successfully recovering compensation for their injuries.

Severely Injured Patients Have No Choice

Deciding to file a medical malpractice lawsuit is one of the most important, and difficult, decisions that my clients will ever make. But most of my clients who have been catastrophically injured as a result of medical negligence literally have no choice. They face huge medical bills and may never be able to work. Filing a medical malpractice claim is the only hope that they have of ever receiving compensation, and justice, for what happened to them.

Continue reading " Canada’s “Loser Pays” Rule Not Fair to Medical Malpractice Victims " »