Halifax Medical Malpractice Lawyer Blog

I don't normally comment on cases in the United States. But this one was so outrageous it is worth commenting upon.

Nurse Concerned About Doctor's Conduct

Nurse Anne Mitchell wrote what she thought would be a confidential letter to the Texas Medical Board expressing concerns about a doctor’s unsafe medical practices.

She thought the letter would be anonymous. Unfortunately, after learning of the complaint the doctor, Dr. Rolando Arafiles fired the nurse and reported her to the police!

Criminal Charges

Even more incredible the police charged her with the criminal offence of “misuse of official information”. Ms. Mitchell was prosecuted and faced up to 10 years in prison for doing what she believed was her obligation under the law – to report unsafe medical practices.

If Ms. Mitchell was found guilty it would have been a blow not only to her but also to every patient who has to undergo shoddy medical care at the hands of negligent doctors.

Not Guilty!

Fortunately for Ms. Mitchell, the jury deliberated for less than an hour before returning a verdict of not gulity on all the criminal charges. Ms. Mitchell's lawyers have filed a civil suit against the doctor, the hospital and various officials involved in her wrongful prosecution.

This ridiculous prosecution shows the lengths that some doctors will go to when trying to intimidate anyone who expresses concern about the quality of their medical services.

Nurses First Line of Defence

Nurses are often the persons most familiar with the condition and medical needs of their patients. It is the obligation of all health care workers to be aware of, and report, unsafe medical practices.

In 20 years of medical malpratice litigation I have had many cases where the success of my clients claim turned directly on the evidence of the nurses who were courageous enough to chart, and testify, about the negligent conduct of the doctors that injured my clients.

Canada Protects Whistleblowers

In Canada, employers who try to intimidate or threaten employees in order to prevent them from providing information to law enforcement officials are liable for criminal sanctions under Section 425.1 of the Criminal Code of Canada.

There is provincial occupational health and safety legislation that protects employees from reprisals resulting from attempting to enforce statutory health and safety provisions. An employer who fires an employee for reporting their negligence conduct could also be subject to civil sanctions in a wrongful dismissal lawsuit.

However, at least in Nova Scotia, there is no legislation that requires nurses and other health care workers to report what they believe to be negligent medical care on the part of a doctor.

Still Room for Improvement

Our legislation needs to be strengthened to require employees to report what may not be statutory violations but still amount to negligent care while still protecting those who come forward to report their concerns.

A recent decision from Justice Lococo from the Ontario Superior Court of Justice confirms the difficult odds that injured patients face when pursuing a medical malpractice claim.

Patient Suffered Stroke

In Hasselsjo v. St. Joseph’s Hospital et al, Songja Hasselsjo suffered a stroke. She sued St. Joseph’s Hospital and the nurse that treated her in the emergency department.

Negligent Triage?

The case revolved around whether the nurse that attended on Ms. Hasselsjo when she was presented to the emergency room properly followed the triage process in place at the hospital. Triage means to sort or prioritize. In emergency departments the triage is the process the hospitals use to prioritize patients for medical treatment.

Rules for Triage?

Guidelines have been developed to help health care providers with the triage process. In Canada, the generally accepted guidelines are the implementation guidelines for the Canadian Emergency Department Triage and Acuity Scale.

Failure to meet Standard of Care?

The judge assessed the evidence and had to determine whether the nurse that treated Ms. Hasselsjo failed to meet the standard of care in conducting her triage examination. The judge then had to consider if there was a breach of the standard of care and did the breach cause or contribute to Ms. Hasselsjo’s stroke and subsequent disability.

As is the case in all medical malpractice claims both sides called experts to testify in support of their claim. The plaintiff’s expert testified that the nurse failed to properly triage Ms. Hasselsjo. The defendants called experts who testified that the nurse did everything required of her under the standard of care.

Paramedics Evidence Critical

In determining if there was a breach of the standard of care, the judge placed a great deal of weight on the evidence of the paramedic who brought Ms. Hasselsjo to the emergency department. It was the view of Justice Lococo that the paramedic’s evidence, as a disinterested third party, was to be preferred over that of the plaintiff.

Justice Lococo determined that, based on the paramedic’s evidence Ms. Hasselsjo was not exhibiting symptoms that would have merited being triaged at a higher level and thus receiving medical treatment faster.

Problem with Causation

The judge went on to say that even if Ms. Hasselsjo had been triaged at a more urgent level the plaintiffs failed to prove that it would have made any difference to the outcome of her injury. If there was negligence, the plaintiffs failed to prove that the negligence was the cause of Ms. Hasselsjo’s stroke.

Continue reading " Patient’s Medical Malpractice Claim against Nurse and Hospital Fails " »

Our Court of Appeal recently released a decision upholding the decision of Justice David MacAdam denying a patient who claimed she was the victim of medical malpractice the right to trial by jury.

In Anderson v. QEII Health Sciences Centre, the plaintiff suffered a brain injury which she claimed was due to negligent medical care.

Patient Wanted Jury

She sued the hospital where she was treated and the two physicians who were in charge of her medical care. When she set the matter down for trial she filed a jury notice. In other words, rather than having the trial heard by a judge alone she wanted the opportunity to present her claim to a jury of her peers.

Defendants did want a Jury

The defendants moved to strike the jury notice. In other words, they wanted to force the plaintiff to have her claim heard by judge alone. The defendants claimed that the medical evidence that would be submitted at the trial would be too complicated for the average juror to understand.

Jurors as capable as Judges

Justice MacAdam decided that jurors were just as capable as judges to understand complicated medical evidence.

I am not persuaded that given sufficient time, and an opportunity revisit areas of uncertainty, a jury of seven is not in as good a position to examine, weigh and determine scientific or any other issues, as a judge sitting alone. On what basis a judge, untrained in the scientific or technical area under review, is better qualified to determine whether a person with education and training related to the particular scientific or technical area in question, has acted properly or improperly, is unclear. Nothing in the submissions of counsel, particularly counsel for the individual defendants, satisfies me that this is either probable, or even a serious possibility.

Lack of Time a Disadvantage

However, Justice MacAdam felt that a jury trial would be a significant disadvantage in hearing claims involving complicated expert testimony because judges can take as long as they need to reach their decision whereas jurors are under time pressures.

Justice MacAdam stated:

There is, however, one difference in how a jury, as opposed to a judge alone, would be able to conduct a review of the evidence, including particularly the expert evidence, and the weighing of the submissions of counsel. Although it has been stated a jury can take as long as required, practically, they are limited to making an "almost" immediate decision. Whether it be hours, days, or even, in some cases, a couple of weeks, there are effectively time restraints on their reaching a conclusion.

No Time Limits on Juries

There are no time limits on how long a jury may take to render a decision. Juries can take as long as they need to consider all of the evidence before them. Juries also have the right to return to court to ask for instructions from the judge on any legal issues. Juries even have the opportunity to reply the testimony for various witnesses. They also take all of the medical reports and all other exhibits presented during the trial with them into the jury room.

However, that being said, most juries reach their decision in hours, days or sometimes weeks. Whereas judges in complex claims often take months to consider the evidence and render their decision.

In upholding Justice MacAdam’s decision to strike out the jury notice the Court of Appeal said:

With respect, to suggest, as have the appellants, that this case stands for the proposition that a judge may strike a jury notice simply because it would be more conveniently tried by a judge sitting alone, is a distortion of the carefully crafted and case specific reasoning in the judgment under appeal.

Medical malpractice claims almost always involve numerous experts and complicated medical evidence. However, they are no more complicated then many other types of complex civil litigation.

The simple fact is that medical malpractice claims are often complicated because the defendants make the case complicated. It is that complexity that has led some judges to deny injured victims the right to have their claims heard by a jury.