Halifax Medical Malpractice Lawyer Blog

I read an interesting decision out of Alberta recently, Gilberds v. Sobey that deals with informed consent to medical treatment and whether statistical information should be given to patients to help them determine if they will undergo treatment.

The case is interesting (at least to those of us doing medical malpractice litigation) because it also touches on the issues of what medical malpractice claimants need to prove to win their claims and the standard of care in medical malpractice claims.

Justice Ross pointed out the importance of statistical evidence at paragraph 81 of her decision:

I agree with Ferrier J. that effective communication of treatment risks requires some information on the probability of a particular result: Matuzich v. Lieberman. The degree of probability of a risk is obviously relevant to reasonable patients considering whether they want to undergo treatment; indeed the degree of probability is one of the factors that qualifies a risk as material.

I go into more detail about the facts of the decision and it's importance to medical malpractice claims on my Atlantic Canada Personal Injury Lawyer Blog.

What Do You Think?

Would you rather have your doctor explain the risks of a medical procedure with statistics? Or would you rather the doctor just tell you about "possible" and "probable" risks? Let me know by posting a comment, either here or on the Atlantic Canada Personal Injury Lawyer Blog.

A major study conducted by the Canadian Medical Protective Association (CMPA) has identified ten key areas that can help improve patient safety.

Diagnostic testing is a critical part of modern medical care. Conducting appropriate tests in a timely fashion and reporting results of testing is key to ensuring appropriate diagnosis and treatment.

Miscommunication a Risk to Patients

In today’s health care system patients may be treated, and diagnostic tests ordered, by a variety of physicians, nurses, and other health care specialists. The risks associated with miscommunication or inadequate follow up increases as the number of care providers increases and as time pressures on medical professionals increase.

The CMPA reviewed legal claims over a four year period (between 2006 and 2010) where the communication of medical and diagnostic imaging tests were alleged to have contributed to a delayed diagnosis or misdiagnosis.

No Follow Up

Failure to follow up on test results or diagnostic imaging reports was the most frequent error identified during the review.

The CMPA identified a number of problems including:

1. No follow up;
2. A delay in follow up; or
3. Inadequate systems in place to ensure appropriate follow up.

Lack of Communication Can Be Deadly

For example in one case we represented the family of a man who died from sepsis after bowel surgery. Doctors determined that the patient was suffering from an infection after the surgery and prescribed antibiotics to combat the infection.

Lab tests showed the bacteria that was the source of the infection was resistant to the antibiotics that had been prescribed. In other words, the antibiotics were not effective.

The doctor claimed he wasn't aware that the antibiotics were not working because the lab results had never been communicated to him.

The patient died and we filed a claim on behalf of his surviving wife and young children.

Doctor Responsible for Follow Up

In Canada the courts have consistently held that a physician who orders a particular diagnostic test is responsible for following up on the results of the test in a timely manner.

The doctor must be satisfied that appropriate systems are in place in the physician’s office, the hospital or the laboratory to ensure test results are communicated to the ordering doctor in a timely manner.

Communication with Patients

The communication system must also ensure that appropriate steps are taken to report test results to patients and arrange for a necessary follow up care.

Unusual Results are Important

Finally, the system must ensure that unusual or clinically significant results are followed up on in a timely manner.

Key Safety Recommendations

The CMPA report contains six key recommendations that could significantly improve patient safety.

1. Create A Culture Of Patient Safety : CMPA recommends all staff be encouraged to identify and follow up on diagnostic test results. The most preventable problem is one that staff is aware of but doesn’t tell anyone about.

2. K.I.S.S.: Systems should be as simple as possible. CMPA encourages the use of tracking systems and check lists. I’ve posted in the past about studies that have found that surgical checklists dramatically improve patient safety: Surgical Checklists Save Lives: Help Prevent Medical Malpractice Claims

3. Use Technology: CMPA recommends doctors adopt technology or software that automatically reminds doctors to follow up on test results and alerts them when there has been no response. Of course no system, computerized or otherwise, can be effective unless it is actually used.

4. Prioritize: CMPA recommends that test results be prioritized as:

1. Urgent;
2. Critical;
3. Action needed; and
4. Pending results.

5. Talk to Patients: Keeping patients actively engaged in their health care can improve their safety. If patients are told why they are receiving certain tests and how long they should have to reasonably wait for the results it helps patients understand the importance of the test results for their health care and encourages them to follow up with their doctor if they haven’t received the test results in a timely manner.

6. Don’t Be An Ostrich: Keeping your head in the sand and assuming“no news is good news” is dangerous. Assuming that “someone” will notify you if test results require follow up increases patient risk.

Continue reading " Effective Management of Test Results Improves Patient’s Safety " »

Justice Muise of the Supreme Court of Nova Scotia recently released his reasons in McIntosh v. Isaac Walton Killam – Grace Health Centre.

The Facts

Ms. McIntoshs’ baby was delivered at the IWK by C-section after a period of pushing in an attempt to deliver vaginally. Ten days after the delivery she became aware of pain in her left hip. She had not had any prior problems with her hip before her delivery.

Approximately one year later, x-rays showed Ms. McIntosh had bone fragments in her hip. She had to undergo surgery and a subsequent hip replacement. Ms. McIntosh sued the IWK claiming the student nurse that was supporting her legs during the delivery caused the damage to her hip joint.

Standards for Students?

One of the issues that Justice Muise had to determine was whether a student nurse should be held to the same standard as a registered nurse.

Standard of Care for Student Doctors

I have previously discussed the issue of the standard of care for medical students. See for example Medical Malpractice Claims in Canada: Standard of Care for Medical Students - Anderson v. Greene

Standard of Care for Nursing Students

Justice Muise had this to say about the issue:

[9] The nursing student is to be held to the standard of care expected of a registered nurse of average competence and ordinary skill facing the circumstances in question. Judicial comments to that effect have been made in Tekano (Guardian ad litem of) v. Lions Gate Hospital, 1999 CarswellBC 1709 (B.C.S.C.), at paragraph 109, and in Dixon v. Calgary Health Region, 2006 CarswellAlta 378 (A.B.Q.B.), at paragraph 73.

[10] The standard of care expected of nurses is dealt with in the same way as the standard of care expected of other health professionals. Useful comments, in relation to the standard of care of health professionals generally, are contained in paragraph 6.26 of the Canadian Health Law Practice Manual (Markham: LexisNexis Canada Inc., 2000) where it is stated:

“The conduct of the institution and its health professionals will be judged on whether the care provided met a reasonable standard in the particular circumstances of the case. The health practitioner is not held to a standard of perfection. The test is not whether the patient received the best care possible from the health practitioner in question. Rather, the Court will look at what the reasonable health professional in a comparable setting would have done in like circumstances.”

After an examination of the case law and considering the evidence by both parties, Justice Muise concluded:

“Based on the forgoing, I find that the plaintiff has not established, on the balance of probabilities, that the student nurse, Cynthia Mann, breached the applicable standard of care.”

Why is this important?

This case is important to Nova Scotians, and Haligonians in particular because the IWK-Grace Health Centre and the Halifax Infirmary are both teaching hospitals. Much of the primary medical care provided to patients in these hospitals is provided by students (both medical and nursing) obtaining further training in their profession.

However, patients in these hospital are usually not told that the person that is treating them is a student and whether it is their first day in the hospital or whether they have been training for years.

Increase in Medical Errors

There is a significant increase in mortality rates (death) for patients who are admitted to teaching hospitals in July: Beware the July Effect.

Researchers have concluded that in fact the spike in mortality rates is usually due to the fact that July is when medical students begin their training in their new specialties.

Be an Advocate

As patients, we all have certain rights. One of those rights is to be provided with competent medical care. Most of the health care professionals who treat patients here in Nova Scotia are capable and dedicated professionals. However, everyone makes mistakes and lack of experience can lead to medical errors.

If you have a concern about the lack of training or experience of anyone that is providing you with medical care you have the right to ask that a more experienced professional provide your treatment.

Now more than ever effective medical and hospital care often depends on patients, or their familt members, being their own advocates.

What Do You Think? Leave a comment and let me know.

Misdiagnosis Leads to Amputation

A recent ruling from the Court of Queen's Bench in Alberta confirms that prompt diagnosis can mean the difference between life and death (or in this case, life and limb).

Alberta farmer Wayne Forsberg has been awarded 1.5 million dollars in compensation as a result of medical negligence on the part of emergency room physician Dr. Dadi Naidoo.

Patient Suspected an Infection

In October 2000, Mr. Forsberg began to suffer from fever, stiff neck and a rash. He suspected that he might be suffering from meningitis because public health officials in the Edmonton area had been warning the public about a recent outbreak.

Forsberg attended the emergency department at the nearest hospital in Leduc.
The emergency room nurse who performed the triage suspected Forsberg was suffering from a blood infection and advised the attending physician, Dr. Naidoo. The nurse testified at trial that she asked Dr. Naidoo twice if the patient should be given antibiotics but was instructed to hold off.

Doctor Wanted to Wait

Dr. Naidoo testified at trial that he realized Mr. Forsberg probably had a blood infection but felt that he needed to discuss the issue with an infectious disease specialist before prescribing antibiotics.

Failed Attempts

The specialist Dr. Naidoo consulted with suggested a lumbar puncture which would help narrow it down the possible diagnosis. Dr. Naidoo tried unsuccessfully to perform the puncture on two occasions, resulting in further delay.

More than three hours after Mr. Forsberg arrived at the hospital he was finally transferred to Edmonton’s Royal Alexander Hospital where he was immediately started on antibiotics.

Unfortunately, as a result of the blood clots created by the meningitis bacteria surgeons had to amputate large parts of both of Mr. Forsberg's legs and one of his arms.

Justice Dennis Thomas stated:

When faced with a “very ill man” Dr. Naidoo knew that a probable cause was bacterial infection and that there was literally nothing to lose by a very prompt attempt to treat that possible infection with antibiotics. Any medical professional should clearly have known that was the case.

Prompt Treatment Would Have Limited Injuries

Justice Thomas concluded that if Mr. Forsberg had been started on antibiotics immediately he would have lost his toes and perhaps needed some skin grafts but he would have avoided from having to suffer from the major amputations of his legs and arm.

Mr. Forsberg was awarded $270,000 for non-pecuniary damages for pain and suffering and over $1 million dollars to compensate for business losses as a result of him having to sell his farm.

Prompt and Effective Treatment Critical

This case highlights the pressures on emergency room staff to effectively triage and diagnosis potential illness.

Differential Diagnosis Method

When diagnosing a potential illness doctors are supposed to use what is called the “differential diagnosis” method.

Basically the process requires the doctor to create a list of all the possible causes of the signs and symptoms that the patient suffered from.

The doctor is then required to conduct tests or investigations to rule in (or rule out) the potential causes until the doctor arrives at a final diagnosis.

Dangerous or life threatening illnesses are supposed to be placed at the top of the differential diagnosis list because, as the Forsberg case illustrates, they can have dire consequences.

More Information

"What is a Differential Diagnosis and Why is it Critical to My Care?"

Continue reading " Farmer Receives 1.5 Million Dollars for Emergency Room Negligence - Forsberg v. Naidoo " »