I have posted before about informed consent to medical treatment and why it is so important in medical malpractice claims. Unfortunately, these types of claims are very difficult to win.
What Does Informed Consent Have To Do With My Nova Scotia Medical Malpractice Claim?
“Mature” Children Can Refuse Medical Treatment: Supreme Court of Canada
Neck Manipulation Caused Stroke
That's why I found a recent decision out of Newfoundland and Labrador very interesting.
A chiropractic patient recently won a difficult case against a local doctor alleging neck manipulation caused her stroke. The case was tried in St. John's.
In Gallant v. Brake-Patten the patient, Ms. Gallant successfully sued her chiropractor. She claimed that she suffered a stroke after undergoing neck manipulation.
Justice Harrington accepted the plaintiff's evidence that the chiropractor did not advise her of the risk of stroke. Harrington J. was also satisfied that Ms. Gallant would not have had the chiropractic treatment if she had known about the risk of stroke.
Finally, she was able to prove on the balance of probabilities that the neck manipulations actually caused her stroke. This is an issue that has been the subject of some debate among medical experts.
I have created a video explaining what informed consent is and why it is important in medical malpractice cases. You can watch it here or go to our video library to see this video and other videos with useful information about medical malpractice and personal injury claims.
Thanks to my colleague Ches Crosbie for alerting me to the decision. Ches is one of the premier medical malpractice lawyers in Newfoundland and Labrador.
The Ontario Court of Appeal has ruled that a doctor’s “error in judgment” was not evidence of negligence.
Roger Lawrence was admitted to the Welland Hospital as a result of severe stomach pains. The physician treating him concluded that he was suffering from gallbladder colic. The following day the surgeon performed a laparoscopic cholecystectomy.
Over the next 12 days Mr. Lawrence’s condition alternately improved and deteriorated. He began to show signs of distress and was air lifted to Mount Sinai Hospital where he eventually died of necrotizing pancreatitis.
Standard of Care
As is usually the case in medical malpractice claims there were different opinions from the plaintiff’s experts and the defendant’s experts as to whether the defendant surgeon met the standard of care required of the reasonably competent doctor.
Treatment "Reasonable"
The opinion of the doctors called on behalf of the defendant was that the doctor’s approach to Mr. Lawrence’s treatment was “reasonable” and met the expected standard of practice.
At issue was the doctor’s decision to wait and see how Mr. Lawrence’s condition improved (or deteriorated) before taking further action.
Causation Not Proven
It was not clear from the evidence presented by the plaintiff at trial that earlier investigation or alternate treatment would have changed the outcome in Mr. Lawrence’s case. In other words, the plaintiff didn't prove that the alleged mistake caused Mr. Lawrence's death.
Consequently the trial judge ruled that the plaintiff had not established that the defendant was guilty of medical malpractice. The Court of Appeal upheld the trial judge’s decision and stated:
“In our view, the trial judge made no such error in finding not only that the respondent’s treatment of Mr. Lawrence did not fall below the standard of care but also that causation had not been established”
Mistakes Evidence of Negligence Not Proof of Negligence
This case is a perfect example of something that is often difficult to explain to patients who have been seriously injured or family members who have lost a loved one. Just because a doctor makes a mistake does not necessarily mean the doctor has committed medical malpractice.
An error of judgment may be evidence of negligence but an error in judgment is not, by itself, negligent. A plaintiff must show that the error in judgment fell below the standard expected of a reasonably competent doctor and that the error in judgment caused the patient’s injury.
]]> For more information you can get a copy of my book: The Consumer’s Guide to Medical Malpractice Claims in Canada: Why 98% of Canadian Medical Malpractice Victims Never Receive a Penny in Compensation. on Amazon.Or you can contact me through this blog or by calling toll free in Atlantic Canada 1-877-423-2050 and we will send you a copy, free, anywhere in the Maritimes.
]]>In a decision released last week, Justice Tausendfreund has ruled that a nurse at St. Joseph's Children’s Hospital was negligent and that the nurse’s negligence caused catastrophic brain injuries to a baby, Danny Vuong.
Danny’s mother, Ms. Giang was admitted to St. Joseph’s Hospital on June 12, 2991. Her pregnancy had been normal and uneventful.
Fetal Heart Monitor Results Not Normal
Two nurses were assigned to Ms. Giang to monitor the baby’s fetal heart rate. They used an electronic fetal heart monitor (EFM) to monitor the baby’s heart rate.
When the nurse checked the heart monitor it showed a range of 170 beats per minute, a reading that is outside the normal range. The nurse assumed that she had simply heard a normal acceleration of the baby’s heart rate. However, the nurse also recognized that the increased heart rate could also be a sign of tachycardia, an abnormal elevation in the heart rate which is a sign of fetal distress.
Didn't Check Again
But she didn't check the baby's heart rate again to see if it had returned to normal! 20 Minute Delay
Unfortunately, the nurse did not return to Ms. Giang to conduct another fetal heart rate monitor until 20 minutes later. By that time, the baby’s heart rate had dropped precipitously and an emergency C-section was performed.
The surgeon who performed the c-section found that the umbilical cord had been wrapped around Danny’s neck. Danny was born suffering from the results of acute hypoxia-ischemia resulting in severe brain damage.
Justice Tausendfreund ruled that:
“Had Danny been born 10 minutes earlier he would have been at great risk for some neurological injury, but he would not have sustained the depth or extent of injury he did.“I find that had Danny been born 10 minutes earlier, it would have significantly and materially reduced both the extent and nature of the injury to Danny’s brain and would have significantly and materially reduced the degree of functional impairment.”
Nurse Failed to Meet Standard of Care
Justice Tausendfreund ruled that the nurse had failed to meet the standard of care expected of her. Had she acted in accordance with the standard of care and continued to monitor the baby’s heart rate to confirm her assumptions she would have realized that the baby was suffering a medical emergency. As a result, the Judge ruled that the nurse’s negligence was the cause of baby Danny’s catastrophic brain injuries.
Causation in Medical Malpractice Claims
This case shows how a difference of just minutes can mean the difference between life and death. The difference between having a healthy baby and a baby who will live his life severely debilitated by brain injury.
The vast majority of medical malpractice claims fail because the victim is not able to prove that the the health provider's negligence caused or materially contributed to their injury.
]]> For more information you can buy a copy of my book: The Consumer’s Guide to Medical Malpractice Claims in Canada: Why 98% of Canadian Medical Malpractice Victims Never Receive a Penny in Compensation. on Amazon.Or you can contact me through this blog or by calling toll free in Atlantic Canada 1-877-423-2050 and we will send you a copy, free, anywhere in the Maritimes.
A study performed at Montreal’s Jewish General Hospital has found that apologizing for mistakes may actually help reduce the incidents of mistakes.
Full Disclosure
Three years ago the hospital implemented a “full disclosure policy” regarding mistakes make during patient care. The policy of admitting mistakes resulted in a 50% drop in “adverse incidents” (otherwise known as medical errors) over the past 3 years.
Provincial health care officials in Quebec are looking to use the hospital’s policy as a model to create a province wide registry of adverse incidents.
Admitting Mistakes Reduces Lawsuits
I have already talked about how admitting medical mistakes leads to a reduction in the number of medical malpractice lawsuits.
Admitting Mistakes Reduces Mistakes?
However, this study suggests the admitting medical errors may actually serve to reduce the number of errors themselves!
I’m not sure what that might account for the reduction. Perhaps when doctors, nurses and healthcare staff don’t feel compelled to maintain the “code of silence” they are more likely to report dangerous medical situations so that the situations can be corrected which, in turn, prevents further problems.
Bernie Weinstein, a patient advocate at Jewish General Hospital summarized the issue:
…to be told “don’t worry; its ok” is not the answer…what you really want to hear is, “we know what went wrong, and we are doing something. And we apologize. It won’t happen again because we are going to do something to ensure it doesn’t”
So what do you think? If you or a family member suffered a medical error and the doctor or hospital apologized immediately would you be less likely to sue? Do you think apologizing for medical mistakes can actually help reduce mistakes?
Or you can contact me through this blog or by calling toll free in Atlantic Canada 1-877-423-2050 and we will send you a copy, free, anywhere in the Maritimes
]]>A recent decision from Ontario has found that nurses have a duty to ensure patients receive appropriate care from a responsible physician when faced with a medical emergency.
The court found that the duty to ensure that the patient is seen by a appropriate physician exists even when the patient has already been seen by a resident physician.
Failed to Meet Standard of Care
In Milne v. St. Joseph’s Health Centre, Justice Morissette found that an experienced obstetrical nurse and an obstetrical resident both failed to meet the standard of care expected of a reasonable nurse and physician during the birth of Anne Louise Milne’s son Jessy.
Jessy suffered catastrophic brain damage due to a premature separation of Ms. Milne's placenta from her uterus, resulting in internal bleeding. Ms. Milne was admitted to the delivery unit of the St. Joseph’s Health Centre at 1:20 PM on August 18, 1997.
Nurse Suspected Medical Emergency
The obstetric nurse who took her vital signs and applied the fetal heart rate monitor strongly suspected that Ms. Milne had suffered a placental abruption. The nurse testified at trial that she understand that a placental abruption was a medical emergency and might require a cesarean section in order to prevent brain damage due to the lack of oxygen to the fetus.
At 2:00 PM Ms. Milne was assessed by an obstetric resident who performed an ultrasound which showed that the fetus was not breathing or moving.
Doctor Suspected Medical Emergency
The resident physician also suspected a placental abruption but neither one of them discussed their concerns with the other nor did they consider an appropriate course of action.
No One Talked to Doctor in Charge
The nurse testified that she expected the resident physician to contact the attending obstetrician in charge of Ms. Milne to determine her appropriate treatment.
Approximately 35 minutes after the resident examined Ms. Milne the obstetric nurse finally asked another physician to assess Ms. Milne. The physician immediately diagnosed Ms. Milne’s condition and ordered a emergency cesarean section.
Justice Morissette found that delivering baby Jessy even 10 minutes earlier would have prevented his severe brain damage.
Lack of Communication Can Have Catastrophic Consequences
In many hospitals nurses and physicians work in what is called a “team environment”. This case emphasizes the need for communication between team members. It also emphasizes the importance of coming up with a proposed plan of treatment with every patient.
]]> If you or a loved one have suffered injuries that you think may be due to medical malpractice you can buy a copy of my book: The Consumer’s Guide to Medical Malpractice Claims in Canada: Why 98% of Canadian Medical Malpractice Victims Never Receive a Penny in Compensation. on Amazon.Or you can contact me through this blog or by calling toll free in Atlantic Canada 1-877-423-2050 and we will send you a copy, free, anywhere in the Maritimes.
]]>1. The standard of care;
2. Whether there was a breach of the standard of care;
3. Whether the breach resulted in the patient’s injuries;
4. What is the nature of the plaintiff’s injuries?
My book, The Consumer’s Guide to Medical Malpractice Claims in Canada, discusses the use of medical experts in medical malpractice claims and goes into detail to explain why you cannot win a medical malpractice case without solid medical experts on your side.
A recent case in Bridgewater, Nova Scotia simply proves my point.
In Vaughn v. Hayden, Justice McDougall of the Nova Scotia Supreme Court granted the defendant’s motion to strike out the plaintiff’s statement of claim.
Defendants Apply to Strike Out Claim
The defendants made a motion for Summary Judgment. Basically, the defendants asked the court to dismiss the plaintiff’s claim on the basis that there was not genuine issue for trial.
Defendant Doctor Had Expert Reports
The defendant provided the court with expert medical opinions from 2 doctors who testified that Dr Hayden, did not breach the standard of care and that any injuries that the plaintiff Mr. Vaughn may have suffered were not caused by negligence on the part of Dr. Hayden.
Plaintiff Didn't Have Any Expert Evidence
The plaintiff filed his own affidavit opposing the motion.
Justice McDougall struck out the plaintiff’s claim and stated:
“Furthermore, it would be a rare medical malpractice case that would have any real chance of success without some kind of supporting expert evidence establishing the breach of the standard of care and the causal connection between the negligent treatment and the resulting harms suffered”
I have been representing victims of medical malpractice for 19 years. It has always been my practice to recommend that a plaintiff get a supporting medical-legal opinion from a recognized expert confirming that there are solid grounds for a medical malpractice claim before filing a medical malpractice lawsuit.
This case just proves my point. You can't win a medical malpractice claim without expert evidence and you better know if the experts support your claim before you file a lawsuit.
]]> If you or a loved one have suffered injuries that you think may be due to medical malpractice you can buy a copy of my book: The Consumer’s Guide to Medical Malpractice Claims in Canada: Why 98% of Canadian Medical Malpractice Victims Never Receive a Penny in Compensation. on Amazon.Or you can contact me through this blog or by calling toll free in Atlantic Canada 1-877-423-2050 and we will send you a copy, free, anywhere in the Maritimes.
]]>The Supreme Court of Nova Scotia has approved a settlement in a medical malpractice case awarding 4.5 million dollars in compensation to a child who suffered cerebral palsy as a result of injuries suffered during his birth.
Very Complex Claim
In the decision of Saulnier v. Tynski et. al, Justice Patrick Duncan said in his decision:
“Let me say that this obviously was a very complex medical malpractice claim.”
Parents Compensated for Extraordinary Services
The court also approved payment of $125,000.00 each for the child’s parents to recognize the burden that has been placed on them for the extraordinary services the now have to provide to their child to care for him as a result of his injuries. Justice Duncan said:
“I accept that these parents have already undergone a lot of stress and that they probably will continue to do so in trying to provide for their son, and that the settlement should do what it can accomplish in terms of trying to minimize the additional stressors.”Medical malpractice cases are among the most complicated, time consuming, and risky kinds of personal injury litigation.
There is tremendous debate within the medical and scientific community as to the causes of cerebral palsy. Establishing causation in a medical malpractice claim is often a huge, sometimes insurmountable, hurtle.
No amount of money will ever change what happened to young Jacob Saulnier. However, this is a tremendous result in what was a challenging and complicated case.
Or you can contact me through this blog or by calling toll free in Atlantic Canada 1-877-423-2050 and we will send you a copy, free, anywhere in the Maritimes.
]]>So when you or a family member has been injured by a doctor or a hospital your family lawyer is probably the first person you think of to turn to for advice.
But is your family lawyer the right person for the job? Maybe, maybe not. Medical malpractice is a very specialized area of the law.
What to Look For
While it is not necessary for a medical malpractice lawyer to have a medical degree, it is helpful for your medical malpractice lawyer to have a familiarity with various medical specialties and knowledge of human anatomy.
You want your medical lawyer to be familiar with the defence lawyers that are going to be involved in defending your malpractice claim. You also want your lawyer to have experience in handling complicated medical malpractice cases.
Ask your family lawyer if he or she handles medical malpractice cases on a regular basis. Dealing with personal injury cases, or car accident claims does not necessarily provide the kind of experience you will require in order to successfully prosecute a medical malpractice claim.
Frequently I am contacted by medical malpractice victims or their family members who want to settle out of court. Sometimes the lawyers file medical malpractice claims in the hopes that the doctor’s lawyers will settle quickly in order to avoid the time and expense of a trial. That type of strategy will fail miserably in a medical malpractice case. Why? Simply because most doctors in Canada are defended by the Canadian Medical Protective Association (CMPA). The CMPA is a non-profit defence fund whose sole purpose is to “vigorously defend” any and all malpractice claims brought against doctors in Canada.
Medical malpractice claims rarely settle and when they do it is usually just shortly before trial and after the plaintiff has spent tens of thousands of dollars for experts.
Just remember, your family lawyer may be a great lawyer but you should think long and hard about whether or not you want to him or her to handle your medical malpractice case. Ask a lot of questions so you can make an informed decision.
Continuing treatment is a term that lawyers use to describe the length of time that you have continued to receive treatment from your doctor. In many cases, after a patient receives negligent treatment that causes an injury they continue to see their doctor or be treated in the hospital for the effects of the negligence medical care. Why is this important?
Statute of Limitations
Every province has a “Statute of Limitations” which is a time limit for filing certain kinds of claims. Generally, the time that you have to file a medical malpractice claim starts from the date the malpractice occurred.
Time Limit May Be Extended
However, the court may decide that the time to file your medical practice claim started to run, not from the date of the original malpractice, but from the last date that you received treatment from your doctor for the medical condition or complaint that was caused by the medical malpractice.
For example, if a surgeon perforates your bowel during surgery on January 1 and you suffer complications and have to undergo another surgical procedure on March 1 the court may consider that the time limit for filing a claim started to run not on January 1 but on March 1 because you were receiving continuing treatment for the medical problem caused by the negligence.
Claim May Be Barred
Once the statute of limitation runs out your right to file a medical malpractice can be barred forever. That is why it is very important for your medical malpractice lawyer to investigate the specifics timing of all of your doctor or hospital visits. This type of detailed investigation will help establish whether there was “continuing treatment” that may extend the time limit of filing your medical malpractice claim.
Dr. Wright performed laparoscopic gallbladder surgery on Ms. Rowlands to remove her gallbladder. Dr. Wright cut the patient’s common bile duct mistakenly believing it was the cystic duct. Ms. Rowlands brought a medical malpractice claim seeking compensation from Dr. Wright and was successful at trial.
In determining whether Dr. Wright had met the standard of care required of a reasonably competent surgeon the trial judge stated:
“...a finder of fact may use common sense in assessing the surgeon’s conduct as he followed the standard medical practice described by the experts.”The trial judge determined that, as a matter of common sense, a doctor should make sure they are aware of what they are cutting when surgery is performed.
Standard of Care is is not Common Sense
The Court of Appeal ruled that expert’s evidence at the trial determined that the standard of care required a surgeon to obtain a “critical view” of the area being operated on. It is not necessary for the surgeon to be certain exactly what organ they are cutting.
As a result, the Court of Appeal dismissed the finding of liability against the defendant and a new trial was ordered.
I have clients come to see me who are certain what happened to them is the result of medical malpractice. Sometimes when I hear their stories it seems to me that, based on common sense, the doctor must have done something wrong.
However, in order to win a medical malpractice claim, the plaintiff must establish, on the balance of probabilities, what the standard of care required of the doctor actually was, that the doctor breached the standard of care, and that the breach is what caused the plaintiff’s injury.
I have had many cases where independent neutral experts have told me that, despite what seems to be “common sense” the standard of care was not breached and therefore there was no medical malpractice. This case simply reinforces the importance of getting an appropriate expert opinion early on in the preparation of a medical malpractice claim.
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.
]]> If you or a loved one have suffered injuries that you think may be due to medical malpractice you can contact me through this blog or by calling toll free in Atlantic Canada 1-877-423-2050 for a free copy of my book: The Consumer’s Guide to Medical Malpractice Claims in Canada: Why 98% of Canadian Medical Malpractice Victims Never Receive a Penny in Compensation. ]]>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.
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?
]]> If you or a loved one have suffered injuries that you think may be due to medical malpractice you can contact me through this blog or by calling toll free 1-877-423-2050 for a free copy of my book: The Consumer’s Guide to Medical Malpractice Claims in Canada: Why 98% of Canadian Medical Malpractice Victims Never Receive a Penny in Compensation. ]]>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.
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.