Halifax Medical Malpractice Lawyer Blog

Last night I was invited to be a guest speaker University of King's College Media and the Law course.

As a personal injury lawyer in Halifax, my practice involves representing victims of childhood sexual abuse, medical malpractice claims and catastrophic injury claims, but I have also had the good fortune of assisting clients in some groundbreaking claims. There was a good discussion about why these types of claims are of interest to the public.

My presentation involved a review of the ethical rules that govern when lawyers can (or should) talk to the media, tips for budding journalists on how to develop better relationships with lawyers, and finally a review of some of the cases I have been involved in that have been in the news.

I can candidly say it was one of the more enjoyable evenings I have had in a long time. The class was engaged and there were lot's of probing, relevant questions (as you would expect from journalism students).

I look forward to the opportunity to meet next year's class.

Update

I just received a very kind note from the professor of the class that I thought I would share:

Dear John:

You should teach. My students at Kings loved your presentation - you really brought your work to life for them. I can't thank you enough for coming to the class and sharing your clear passion for the law with the students.

I am very fortunate to have a job where I get to meet and help some wonderful people. I am passionate about what I do and I hope the students I met in class that night find a career they can be equally passionate about.

This month the Superior Court of Justice in Ontario released an interesting decision in a medical malpractice case Meuwissen v. Perkin. As a Nova Scotia medical malpractice lawyer, I found the case interesting because it deals with some unique issues of production that I have not run into in a medical malpractice claim in Nova Scotia or New Brunswick where I do most of my cases.

Implied Undertaking Rule

In Canada, we have what is known as the “implied undertaking rule”. What that means is there is an implied promise that information collected in the course of a lawsuit will not be disclosed to anyone who is not a party to the litigation.

One of the steps in the litigation process is conducting discovery examinations where the parties to a lawsuit are questioned, under oath, about everything they know that is relevant to the claim.

In Nova Scotia the rule was described by Justice Walter Goodfellow in Colby v. Ruiz, as follows:

"... implied undertaking rule means information obtained through oral or documentary disclosure in litigation, not otherwise independently obtainable through legitimate means, cannot be used for collateral or ulterior purposes absent the consent of the producing party or leave of the court."

The Supreme Court of Canada confirmed the existence of the rule in Juman v. Doucette. The Court also provided some helpful direction as to possible exceptions to the rule.

Balancing of Interests: Binnie J. wrote that “the onus in each case will be on the applicant to demonstrate a superior public interest in disclosure, and the court will be mindful that an undertaking should only be satisfied in exceptional circumstance”.

Statutory Exceptions: Binnie J. stated that the implied undertaking rule, can be modified by legislation.

Public Safety: If the facts disclosed during pre-trial discovery raise legitimate concerns for the safety of the public, the implied undertaking rule may be over ruled.

Impeaching Prior Inconsistent Testimony: The Supreme Court confirmed it's previous rulings to the efect that the implied undertaking of confidentiality may be set aside for the purposes of impeachment when a witness has given inconsistent versions of the same facts.

Meuwissen v. Perkin

In Meuwissen the plaintiffs filed a medical malpractice claim against Dr. Gary Perkin, a number of other doctors and the Strathroy Middlesex General Hospital, for serious injuries the infant plaintiff suffered during childbirth.

The plaintiffs alleged Dr. Perkin had a history of violating hospital guidelines regarding the use of forceps, cesarean sections and had repeatedly breached professional standards for obstetric care.

Dr. Perkin had previously been sued by a number of other plaintiffs for similar claims involving birth injuries during the same time frame that the infant plaintiff was injured.

The plaintiffs sought an order requiring production of the discovery transcripts from the five other lawsuits against Dr. Perkin.

The defendants that objected to production on the basis that, if the order were granted, the plaintiffs would “have available to them a much broader range of pretrial discovery than would normally be the case”.

The court considered the previous discovery examinations to be relevant in part because the plaintiffs had alleged systemic negligence on the part of Dr. Perkin and the other defendants.

The court ruled, at paragraph 94:

The case involves significant claims for damages and the alleged injuries to the infant plaintiff cannot be ignored. The facts in two of the three other actions arise out of similar facts to this action. For the above reasons, I am ruling in favor of production of all of the transcripts of examinations for discovery in the other three actions. To rule otherwise may prejudice the plaintiffs in that they could be deprived of proceeding to trial without valuable evidence that could possibly bolster their case.

The court weighed the competing interests of protecting the privacy interests of parties from unwanted intrusion versus ensuring that parties to litigation are provided with all relevant information.

Unusual Circumstances

I think it is fair to say that in most cases negligent acts by doctors, nurses and hospitals are isolated incidents that do not form part of a pattern of misconduct.

However, as the Meuwissen case clearly shows, there may be cases where defendants are guilty of a pattern of misconduct or systemic negligence that continues until the parties are held to account and forced to address their negligent misconduct.

The Meuwissen decision shows that negligent defendants who persist in a pattern of misconduct will not be able to hide their repeated negligent actions behind the secrecy of the implied undertaking rule.

Medical malpractice lawyers know most potential victims of medical malpractice never file a claim. Recently a report by ABC News has confirmed that in the United States more than 80% of hospital errors are not reported by hospital employees.

Hospitals Don't Learn From Mistakes?

The report analyzed data from hospitalized Medicare patients. Investigators determined even when mistakes were reported hospitals rarely changed their policies or practices to prevent repeated errors. Hospitals usually claimed that errors were not due to “systemic quality problems”.

When is a Mistake Not a Mistake?

According to the study 61% of unreported medical errors were not even considered to be a mistake by hospital staff. The remaining 25% involved errors that should have been reported but were not.

More Serious Errors Don't Lead to Higher Reporting

Another disturbing finding was that even the most serious types of errors like hospital acquired infections and patient deaths were treated the same as relatively minor errors like allergic reactions. In other words, hospital staff were no more likely to report an error leading to the death of a patient than they were to an error leading to an allergy to penicillin.

Canadian Malpractice Victims Face Difficult Odds

Medical Malpractice lawyers in Canada know that up to 98% of potential medical malpractice victims never receive compensation.

According to statistics from the Canadian Medical Protective Association (the nonprofit organization that defends almost all doctors in Canada) during a recent five year period more than 4,000 lawsuits were filed against doctors in Canada but only 2% resulted in trial verdicts for the victim.

In 2009 the CMPA spent 76 million dollars on legal fees defending doctors in medical malpractice claims across the country.

In the same five year period over 3,000 medical malpractice claims were dismissed or abandoned because the victim or his or her family ran out of money, quit or died before the case came to trial.

Tip of the Iceberg

Medical malpractice claims tend to get attention in the media. Mostly because they are so unusual. But the number of lawsuits that are filed in the court are really just the tip of the iceberg when it comes to the number of potential medical malpractice victims who may not even know they have a claim.

Statistics compiled by the Canadian Medical Association indicate that medical errors kill 24,000 Canadians every year and more than 87,000 patients every year are the victim of some form of adverse event during their medical care.

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

But according to the CMPA only 1000 lawsuits are filed against doctors in Canada each year.

Continue reading " Most Hospital Mistakes Never Reported " »

Use of Facebook in Litigation Increasing

I’ve posted before about how defence counsel in personal injury claims have routinely requesting disclosure of plaintiff’s Facebook pages, Twitter accounts, and otheon linene social media platforms. See for example:

Court Orders Lawyer to Mislead Client to get Access to Facebook - Sparks v. Dubé

Insurers May Be Using Facebook to Underwrite Policies

Social Networking and Personal Injury Claims

Courts across Canada have shown they are willing to order production of informaon linerom online social media accounts if defendants can prove the relevance of the material.

No Fishing

However, a recent case in B.C. provides some helpful direction regarding the limits to these types of intrusive requests by defence counsel.

In Dosanjh v. LeBlanc and St. Paul’s Hospital the plaintiff sued her doctors and nursing staff at St. Paul’s Hospital for injuries she claimed to have suffered during open heart surgery.

Ms. Dosanjh suffered a stroke during surgery that left her with significant cognitive and physical disabilities.

Counsel for the hospital filed a motion in the Supreme Court of British Columbia requesting that the plaintiff produce copies of her Facebook and Twitter accounts. The hospital’s lawyers said that the information in the accounts was relevant because the plaintiff had put her health, enjoyment of life and employability at issue in the trial.

The court dismissed the defendant’s motion stating that it was too broad and lacked focus. The judge hearing the motion described the request as a “classic fishing expedition”.

What Does it Mean?

As I have pointed out before, Defendants have been aggressively searching out evidence on the web that they can use to defend plaintiff’s claims. This includes information published on line in any kind of public social networking site.

Plaintiffs in medical malpractice claims (in fact in any type of civil suit) should be aware that the information they are posting on line may be seen not only be their “friends” or “followers” but could end up being examined by lawyers, judges or jurors.

So remember: Caveat Amicum (friender beware).