Halifax Medical Malpractice Lawyer Blog

I get several calls a week from patients, of family members of patients, who are concerned about the care that they, or their family member, have received from their doctor or hospital.

In most cases, a careful investigation of the facts reveals that there are no grounds for a medical malpractice claim (in other words, the doctor or hospital wasn’t negligent) or that there may have been negligence in the patient’s care, but the cost of filing a lawsuit would be more than the potential recovery.

Explaining these facts to my clients is one of the more frustrating aspects of being a medical malpractice lawyer. I hate telling patients that I believe there was negligence in the care they received but that I don't think they should pursue a compensation claim.

My colleague Ches Crosbie has posted about this problem at the Newfoundland Injury Law Blog. Ches is one of Newfoundland and Labrador’s finest medical malpractice lawyers. He points out that the decision to accept or reject a client who has a medical malpractice claim is always difficult.

College of Physicians and Surgeons

However, if you are not satisfied with the care that you or your family has received, you can file a complaint with the College of Physicians and Surgeons. Each province has a College of Physicians and Surgeons that is made up of a panel of doctors and lay persons (non doctors) who are responsible for hearing complaints about doctor’s conduct and administering discipline.

Discipline can range from something as simple as giving the doctor a warning to as serious as suspending the doctor’s license or taking away the doctor’s license to practice medicine in that province.

File a Complaint About the Doctor!

I encourage patients and family members who are concerned about a doctor’s conduct to contact the College of Physicians and Surgeons to express their concerns. Often the patients don’t follow through with the complaint. I think this is a real mistake.

There are certain doctors who I regularly receive calls about. However, if the patients don’t file a complaint with the College of Physicians and Surgeons, there is no way for the College to know about any potential concerns about the doctor’s conduct.

When a patient finally files a complaint the College may not take the complaint seriously because it is the first complaint received about a particular doctor. The Board members' reasoning may be something like: “Well, we have only received one complaint about his/ her conduct. Lets give the doctor a warning to make sure it doesn’t happen again”.

On the other hand, if the College has received a half dozen or more complaints about the same doctor they will be far more likely to take the complaint seriously and more likely to administer more severe discipline to the doctor.

Ches gives some good advice about what type of information should be contained in a complaint to the College of Physicians and Surgeons. I would recommend anyone considering filing a complaint to take a look at his post.

Continue reading "You Can File a Complaint About Your Doctor!" »

Altering medical records does not happen as often as it appears to happen on television or in the movies. However, it happens enough that experienced medical malpractice lawyers develop a sense of when further investigation into the legitimacy of a medical record or chart is warranted.

One of my favourite movies of all times is The Verdict with Paul Newman. I love the scene where he finally realizes that he can prove that the defendant doctor altered the medical files of the woman who was left in a coma because of the doctor’s negligence.

Lessons Learned From Past Cases:

Over the past 18 years, I have learned some lessons about when to suspect that a medical file may have been altered.

Notes on one report, not on another:

In one case I was involved in the specialist’s report that was received by my client’s family physician did not have (exculpatory) handwritten notes that appeared in the report in the specialist’s file.

Lesson:
Look for all copies of the record and compare them.

Different Versions of reports:

In one case the surgeon dictated three different versions of the operative report. The family doctor received the first version days after my client’s surgery. After my client’s condition deteriorated, he dictated a second version (which was found in the Hospital chart). After my client became comatose and was transferred to another hospital for corrective surgery he dictated a third version of the report which was in his office copy of my client’s chart.

Lesson:
Get the records, and get them fast.

Were they working?

In a claim involving allegations of nursing negligence, the nursing notes contained statements that the patient’s condition had been communicated to the attending physician. However the date of the entry was for a day that the nurse in question wasn’t working!

Lesson:
Compare staffing sheets/time cards with the medical chart to detect entries/notes by staff members that were not present/on duty that day.

Medication Errors:

Medication errors are a common mistake among nurses who are overworked or inexperienced.

In a claim involving a fatal overdose, the nursing notes indicated that the deceased had received the proper dosage of medication. However, the medication administration records, which were not supplied by the hospital when the chart was originally requested, showed that the medication had been administered to the patient twice.

Lesson:
Compare the medication administration records with the nursing notes and physicians orders.

Destroying Records:

In an anesthesia negligence claim the anesthesiologist tore up the original anesthesia record and prepared a new record with different data. One of the nurses involved in the operation retrieved the original record and scotch taped it together.

Lesson:
Interview everyone, including retired employees.

White out = Suspicious Records

In a birth injury claim two of the babies APGAR scores had been whited out and changed from a 0 to a 2 (normal).

Change the Numbers - Change the Result:

In a fatality claim the deceased’s blood pressure reading had been changed from 170/90 to 120/80 by using a different colour pen to alter the numbers 7 and 9. The change couldn’t been seen on the photocopy of the patient’s chart, but was reasonably obvious on examination of the original chart.

Lesson:
Whenever I have a reasonable suspicion that the medical files have been altered, I make an appointment to attend at the Hospital or the doctor’s office to view the original chart.

What to Look For:

Some “red flags” that I look for, based on past experience, that may indicate the possibility of altered medical records are:

• Crowding or squeezing entries above a signature, or between lines;
• Erasures, crossed out entries or white-out corrections;
• Changes in slant of handwriting;
• Using different pens or computer typeface to write one entry;
• Notes on different dates in the same colour ink from same pen;
• Notes in different colour ink (different pen) in the same chart note;
• A typed entry following handwritten entries, or vice versa;
• Missing original records that have replaced by photocopies;
• Entries that are self-serving;
• Half sheets instead of the standard size page (page cut in half);
• Additional notes on the original document, not on copies received by client;
• An unusually late date of dictation of a consult report;
• Any handwritten entry made by someone who erred significantly in treatment.

Continue reading "Altered Medical Files: "I think my records have been tampered with!"" »

In Canada there is no such thing as a claim for "wrongful life". In a ruling released last week, the Supreme Court of Canada denied leave to appeal a Court of Appeal decision that confirmed that Canadian law does not recognize the tort of "wrongful life" as a legitimate cause of action.

In Hergott, et al. v. Bovingdon the defendant doctor prescribed a fertility drug for the plaintiff mother. The doctor did not explain the risks of taking the drug to the mother.

The drug caused the mom to become pregnant with twins. Unfortunately, the twin pregnancy caused a premature birth, and the premature birth caused the twins to be born with severe disabilities.

At trial the jury found that the doctor was negligent in failing to explain the risks of the drug to the mother. In other words, the mom did not provide her "informed consent" to take the drug.

The trial judge also ruled that the doctor owed a duty of care to the twins, which entitled them to recover damages for their injuries. The judge awarded compensation to the parents for the cost of having to care for their severely disabled children after they reached the age of 18.

The Ontario Court of Appeal ruled that twins' claims were "wrongful life" claims, and therefore barred by Canadian law.

The Supreme Court of Canada denied leave (permission) to appeal the decision.

What does it mean?

The Supreme Court has essentially upheld the status quo on the type of claims that can be brought to court. The decision arguably has opened the door to the amount of damages that can be claimed in serious injury cases.

As the law stands now there are three types of claims that typically arise out of catastrophic birth injury cases.

Wrongful Life:

These claims are typically brought where a medical procedure for sterilization or abortion fails and a child is born as a result. Or, as in the Hergott v. Bovington cases, where a child is born with a severe disability as a result of negligence. The claim is typically brought by the child claiming compensation for the harm caused by their birth. In Canada, these types of claims have usually not succeeded. The courts have stated that a claimant cannot claim to have suffered harm as a result of their birth. In other words, the courts assume that it is better to be alive than never to have been born. The Supreme Court of Canada's decision not to hear the twins appeal in the Bovington case confirms that this remains the state of the law in Canada.

Wrongful Birth:

These types of claims are typically brought by parents of children that have been born with an injury. Typically the injury is the result of post-conception negligence by a doctor. For example where a child is born with Erbs Palsy, stretch injury to the brachial plexus that happens during a baby's delivery. These types of claims have generally succeeded.

Wrongful Pregnancy:

These types of claims are brought by parents on behalf of children. The claims typically involve an allegation of negligence resulting in an unplanned pregnancy due to a failed sterilization procedure. For example see the recent decision from New Brunswick where a mom was awarded $90,000.00 after she had a child as a result of a failed tubal ligation.

Expanding Recoverable Damages?

Less attention has been paid to the issue of the parents claim for the cost of caring for the twins after they reached the age of majority. The doctors lawyers argued that the Supreme Court of Canada decision in Krangle v. Brisco means that the defendant does not have to pay for the cost of a disabled child once the parent is not legally obliged to care for the child.

The Ontario Court of Appeal emphatically rejected this argument.

The trial judge rejected the appellant’s submission that Krangle stands for the proposition that the absence of a legal obligation on the parents to support the children after age eighteen is a bar to recovery. I agree with the trial judge. In Krangle, the child was not going to be supported by the parents once he was an adult. Therefore, they would not be incurring that cost. This was not because they were not entitled to incur the cost had they wished but because the group home was in the child’s best interest. The issue in that case was whether the parents would be obliged to reimburse the state for the cost of the child’s care, which turned on their legal obligation to provide support. If they had been responsible to reimburse the state, they would be seen as likely to incur the cost of future care and the court would have awarded damages to cover this cost.

I have represented parents whose children have suffered catastrophic injuries. In many cases the parents are overwhelmed by the costs and pressures of caring for a severely disabled child. As a result, their future care plan often involves placing the children in provincially funded care or group homes after the child reaches the age of majority.

The Bovington decision means that parents can make a claim for the extraordinary costs of caring for a disabled child, once they become an adult.

As the Court of Appeal put it:

A group home could only provide for their physical care but not their emotional well-being. Nor would the group home be able to give them intellectual stimulation and pleasure.

So there you have it. The Supreme Court holds the line on wrongful life but clears the way for claims for the costs of caring for a disabled adult child so that they can continue to receive the love and emotional support that only a parent can provide.

Continue reading "No "Wrongful Life" in Canada: Supreme Court" »

An obstetrician's failure to obtain informed consent was not the legal cause of an infant's brain damage, according to a decision from Ontario.

The Ontario Court of Appeal just released a ruling upholding a trial decision dismissing a claim of obstetric malpractice.

In Cruz v. Robins the trial judge held that the use of forceps during the infant plaintiff's delivery caused the baby's brachial plexis injury and brain damage. The judge found that the parents, Mr. and Mrs. Cruz should have been consulted and should have been informed of the option of a caesarean section and its risks. Further, he found that they should have been advised of the risks involved in proceeding with a mid-forceps delivery. Nevertheless, the trial judge concluded that had the appellants been advised and given the choice, the same result would have occurred.

In other words, even if the parents had known the risk, they would have agreed to assume the risk.

Even though the plaintiff's were able to prove that the defendant doctor was negligent in failing to obtain proper informed consent, they were not able to prove that the failure would have changed the outcome of the delivery. The Court of Appeal repeated the words of the trial judge who said:

[Dr. Robins’] failure to seek and obtain informed consent is of no consequence to the outcome of this case. The same procedure would have been pursued and the same results would have been experienced.

The decision highlights the huge hurdles plaintiff's face in medical malpractice claims and why 98% of Canadian victims of medical malpractice never recevieve compensation for their injuries.