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.

Reasons for judgement were released recently in the case of McLintock v. Alidina.

The plaintiff, Ann McLintock alleged negligence on the part of her family physician, Dr. Alidina, because Alidina hd failed to advise the plaintiff of the results of mammogram testing. McLintock had to undergo a course of 25 radiation treatments and surgical intervention as a result of the alleged delay.

Different Standards for Different Doctors?

The case is interesting because the defendant, Dr. Alidina defended the case, in part, on the basis that the standard of care that she was required to meet as a “busy” family practitioner was lower than the standard of care described by the plaintiff’s expert, Dr. Bloom. Dr. Bloom was the former Chief of Family Medicine at Mount Sinai Hospital in Toronto and, at the time of the trial, was Chief of Family Medicine at the University Health Network (Toronto Western Hospital).

Dr. Bloom testified at trial that a significant portion of his time was devoted to management responsibilities. His clinical practice consisted of four half days and one evening per week. He testified that he saw an average of 14 patients per day.

The defendant, Dr. Alidina testified that she saw an average of 35-50 patients per day.

Alidina claimed that the standard of care required of a busy family doctor was lower than the standard of care required of Dr. Bloom who worked in a major teaching hospital and, by his own evidence, had access to “all of the resources in the world”.


Busy Doctor Defence?

Justice Shaughnessy specifically rejected the “busy doctor” defence.

At Paragraph 67 of his decision Justice Shaughnessy stated:

I do not accept the defence’s position that the volume and nature of Dr. Bloom’s practice in contrast to that of Dr. Alidina’s in someway defines the standard of practice in notifying a patient of further mammogram views and an ultrasound.
…
The standard of care applicable to a family physician in 2000 in the Province of Ontario is the same whether the patient attends to Toronto Western Hospital or a Community Clinic in Pickering, Ontario. Dr. Bloom and Dr. Chapman [the defendant’s expert] both agree the standard of care for a family physician is not less for walk-in patients than it is for family patients who have booked appointments… the family physician must provide excellent care which is responsive to the patient’s needs.

Failed to Meet Standard of Care

The court found that Dr. Alidina failed to have an adequate system in place to notify her patients of the need to follow-up treatment and the results of mammograms and other test results. As a result Dr. Alidina was found to have failed to meet the standard of care expected of a reasonable competent family doctor.

Causation

As I have explained in previous posts, in addition to proving that the doctor was negligent (failed to meet the standard of care) a plaintiff in a medical malpractice claim is also required to prove causation: that the doctor’s negligence caused the injury that is the source of the litigation.

Battle of Experts

There was conflicting expert opinion before the court as to whether or not an earlier diagnosis of Ms. McLintock’s cancer would have changed the outcome.

Justice Shaughnessy’s conclusion was as follows:

In the result I find that a balance of probabilities that Dr. Perviz Alidina was negligent in that she fell below the standard of care in falling to notify Ann McLintock of the October 5, 2000 follow up appointment for conned compression mammography views and ultrasound and further in falling to have in place a system of procedure do discuss the abnormal test results with her on the next appointment.

I further conclude that the plaintiff has failed on a balance of probabilities to prove that the plaintiff has any ongoing risk from her radio therapy and that the prognosis has changed as a result of her delayed diagnosis. Therefore the plaintiff has suffered no damages which are compensable at law.

The plaintiff’s claim is dismissed.

Conclusion

I’ve been contacted by hundreds of persons who believe they have been a victim of medical malpractice. In reviewing the cases we often find evidence that the defendant doctors, hospitals or nurses failed to meet the standard of care. In other words, that there was negligence.

However, as the McLintock case points out, the fact that a doctor was negligent does not mean, by itself, that a plaintiff will be successful in a medical malpractice claim.

Continue reading "Busy Doctors Do Not Have a Lower Standard of Care: Ontario Supreme Court" »

The Supreme Court of Nova Scotia just released its decision in Langille v. Dzierzanowski .

Elderly Plaintiff

The plaintiff, Walter Murray Langille, is 91 years old. He filed a medical malpractice claim against the defendants alleging they removed part of his colon because they mistakenly diagnosed him with colon cancer.

Application to Action

This case is of interest because it was started as an Application under Nova Scotia’s new Rules of Court. The defendants brought a Motion to convert the Application to an Action.

Under Nova Scotia Civil Procedure Rule 5, Applications are intended to be:

“...a speedy, flexible alternative to a trial”.

A claim filed by Application must be heard by the court no more than 25 days after the claim is filed.

Court Has Broad Powers

Under Rule 5, judges are given broad powers to manage the progress of an Application the claim including ordering disclosure, permitting or limiting certain types of discovery, ordering cross examination to take place outside of court, limiting the time for cross examination, setting dates for filing of affidavits and briefs, scheduling a hearing and providing any necessary directions to expedite the claim.

Defendants Request Means 4 Year Delay

In the Langille case the defendant doctors brought a Motion to convert the Application to an Action. This would mean that the claim would progress as a standard claim and a trial in the matter would likely not happen for at least 4 years.

The plaintiff filed expert evidence from an actuary indicating there was a 75% chance the plaintiff would die before the case came to trial if the claim was delayed.

Justice Kennedy acknowledged that, given the age of the plaintiff, the time involved in getting the claim to trial was:

“...a real and legitimate factor in this proceeding”.

Claim Too Complicated to be Fast Tracked

The doctors argued that the medical malpractice claim was “too complex” to proceed other then by Action.

Doctors Say They Want a Jury

Chief Justice Kennedy noted at paragraph 8 of his decision:

“The doctors have indicated that credibility will be an issue and that expert evidence will be involved. Subsequently, they wish to have a trial by jury.”

Nova Scotia’s Rules of Court do not allow claims that are brought by Application to be heard by a jury.

Chief Justice Kennedy decided to grant the defendnats motion to convert the Application to an Action, despite the delays that would cause in getting the case to trial. His Lordship concluded, at paragraph 32:

“It would be unreasonable to deprive the doctors of their right to a jury trial, a prima facie right commonly protected in this jurisdiction and a process well suited to determining the resolution of the issues of fact that can be anticipated at this trial.”

Pain & Suffering Claims Die With the Victim

Under Nova Scotia’s Survival of Actions Act, non-pecuniary claims (in other words, claims for compensation for “pain and suffering”) die with the victim. In other words, if the plaintiff, Mr. Langille, passes away before his trial, his medical malpractice claim is not likely to proceed since the majority of his claim would be for compensation for his past pain and suffering.

Irony

It is ironic that one of the significant reasons that the court gave for converting the claim to an Action, and the delays that will create, was the fact that the defendants claimed they want a jury trial.

As any medical malpractice lawyer can tell you, it is extremely unusual for defendants in a medical malpractice claim to want a jury trial. In fact, it is common for doctors and hospitals to claim that medical malpractice cases are too complicated for a jury.

See for example the following Nova Scotia cases where defendant doctors tried to strike out a Jury Notice filed by the plaintiff in a medical malpractice claim:

Nova Scotia Court of Appeal Denies Injured Patient’s Right to Jury Trial

Anderson v. Queen Elizabeth II Health Sciences Centre

Crocker v. MacDonald

McLellan v. Shea & Malik

Vaninetti v. Victoria General Hospital

You get the idea.

Will Doctors Continue to Insist on a Jury Trial?

If the plaintiff, Mr. Langille, manages to beat the odds and survive until his trial, it will be interesting to see if the doctors insist on their right to a jury when it is actually time to go to court.

X-Ray Errors

Central Newfoundland Regional Health Authority has suspended a radiologist for the second time since 2007. Dr. John Ozoh was removed from his duties after a review of 2,500 of Ozoh's radiology reports. 20% of the reports required "edits" and 120 of the errors were:

"...potentially clinically significant,"

Does "Clinically Significant" Mean Dangerous?

Maybe. Say for example a doctor misreads an x-ray showed signs of lung cancer. Cancer can kill you. So that error would be both clinically significant and dangerous.

But say the x-ray shows what looks like a tumour. A biopsy shows that the tumour is benign (harmless). In that case the mistake was clinically significant, but not dangerous, because the tumour wasn't cancerous.

Sometimes You Can't Tell

The problem is that sometimes (many times) you cannot tell if an abnormality on a diagnostic image is harmless or dangerous without doing further tests.

That is where the problem lies. If Ozoh has misread diagnostic reports that resulted in patients not getting proper medical treatment, people may have been injured, or died, because of his failure to identify "clinically significant" abnormalities.

Doctor Has Not Admitted Doing Anything Wrong

Ozoh has indicated he will appeal his suspension.

Want More Information?

CBC has reported that an information line has been set up for patients. The number is difficult to find since it is buried in the Health Authority website.

If you would like more information, call their toll free number at 1-877-705-6326

Continue reading "NL Radiologist Suspended for Second Time" »

Sylvie Deslongchamps has terminal cervical cancer. She is suing her family doctor for medical malpractice for failing to make a phone call that she says could have saved her life.

Patient Did What She Was Supposed to Do

In 2007 Ms. Delongchamps did what ever careful woman is supposed to do. She went for a checkup and pap-smear with her gynecologist. She says she told her doctor about her family history of cervical cancer. She never heard back from the doctor so she assumed that her test results were fine.

However, a year and a half later she began to have uncontrollable bleeding and went back to see the gynecologist. After looking at her chart the doctor realized that the results of the pap-smear indicated Ms. Delongchamps had cancer. But nobody ever told her about the test results!
Ms. Delongchamps says that if the doctor had simply picked up the phone to call her she could have received treatment early enough to save her life.

No News May Not be Good News:

Many of us assume when our doctor orders lab tests or x-rays that our doctor will call us if there is anything we need to be concerned about. Many of my clients have told me that they thought their doctor would call them if there was something wrong with their test results or if they need further follow-up.

Unfortunately, no news is not always good news. Sometimes test results aren’t delivered to the doctor, medical reports get misfiled, or doctors simply forget to alert their patients that they need further follow-up care.

Three Questions That Could Save Your Life

If your doctor orders you to undergo medical tests or refers you to another doctor for a consultation there are three questions that you should ask:

1. How long will it take before I have the test or get the appointment?
2. When will you get the results back?
3. When will I hear from you again?

If you have been referred for medical tests you need to know how long you should expect to wait to have the test. That way you can follow up in case someone forgot to make the appointment.

You need to know when you should expect to hear back from your doctor. Let's face it. Doctors are human. They are busy. They forget. If you don’t hear back from your doctor pick up the phone and make the call.

It may just save your life.

Highest Cancer rates in Canada

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.

Continue reading "Failure to Diagnose Cancer: Do I Have a Medical Malpractice Claim?" »

Almost 100,000 Medical Mistakes Each Year in Canada

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.

Continue reading "99% Of Potential Medical Malpractice Victims Never File a Claim!" »

Why Did You Write The Book?

I get asked that a lot. There's a ton of work that goes into writing a book about medical malpractice claims. Most books about the topic are written by lawyers, for lawyers, and they are pretty dry reading.

I wanted to write a book that the average person could pick up and read and come away better educated and informed about the medical malpractice claims process and what is involved in filing a medical malpractice claim.

What Makes a Good Doctor?

The British Medical Journal once surveyed people in 24 countries around the world and asked them: “What makes a good doctor?”

The answers included qualities like compassion, understanding, honesty, humanity, competence, commitment, empathy, respect, creativity and a sense of justice.

What Makes a Good Lawyer?

I believe that the qualities shared by great doctors are also traits shared by great lawyers. Especially, a sense of justice.

Since graduating from law school I have devoted my career to trying to help people who truly need help, people looking for fairness, people who need justice.

That is why I do medical malpractice litigation and that is why I wrote The Consumer’s Guide to Medical Malpractice Claims in Canada. To provide information to people who have been seriously injured as a result of medical malpractice. To help people who have been betrayed by the person or persons that they had to trust the most, their doctor, their nurse, their health care provider.

Most Victims Never File a Claim

Every research study that has been done about medical malpractice claims has concluded that most victims of medical malpractice never contact a lawyer or file a claim.

What You Need to Know

You may not actually have the grounds for a medical malpractice claim, but you do need to have certain important information to know if you have a potential claim and what you need to do to protect your rights if you have been a victim of medical malpractice.

I wrote The Consumer’s Guide to Medical Malpractice Claims in Canada so that people who may have suffered a loss as a result of medical malpractice can have this information.

Continue reading "The Consumer’s Guide to Medical Malpractice Claims in Canada" »

When someone dies unexpectedly, or suffers a serious but unexpected injury, while they are in a hospital or under the care of a doctor, it is human nature to assume that the hospital or doctor must have made a mistake. Many clients come to me and say: "How could this have happened? The doctor must have screwed up!"

We all want to believe that when something really bad happens to good people, someone will be held responsible. But that is not always the case.

Burden of Proof

The plaintiff (you) has the burden (responsibility) of proving your claim.

Beyond Reasonable Doubt

Anyone who has watched Law & Order or similar shows on television has heard the term: “proof beyond reasonable doubt”. But that is not the burden that applies in a medical malpractice claim. That is the burden of proof that applies to criminal prosecutions.

Balance of Probabilities

In a medical malpractice compensation claim you have the burden of proof: “on the balance of probabilities”. In other words, is it more likely than not that the doctor (or nurse or other health care provider) was negligent and did that negligence cause your injuries?

Scales of Justice?

The easiest way to understand this burden is to consider a pair of scales. All of the evidence for your claim is placed on one side of the scale. All of the evidence against your claim is placed on the other side of the scale. As long as the scales tip to the side for your claim, even a little bit, then you have met the burden of proof on the balance of probabilities.

What Does OJ Have to Do With The Burden of Proof?

OJ Simpson is a living example of the difference between the criminal and civil standards of proof. As everyone in the world now knows, O.J. Simpson was acquitted of murdering his wife, Nicole Simpson and her friend Ron Goldman because the jury did not believe that the prosecutors had proven the criminal charges beyond reasonable doubt.

However, when the Goldman family sued O.J. Simpson civilly for causing Ron Goldman’s death, the jury decided that the family had proved on the balance of probabilities that O.J. Simpson was responsible for Ron Goldman’s death.

Continue reading "Medical Malpractice Claims: The Burden of Proof and O.J. Simpson" »

Most of my medical malpractice clients have suffered catastrophic injuries that prevent them from being able to return to work or, in the case of infants and children, will prevent them from ever being able to work.

Economic Losses from Medical Malpractice

There are 2 ways to calculate economic losses suffered as a result of medical malpractice. The court will have to determine whether you have suffered an actual income loss or whether you have suffered a diminished earning capacity.

Income Loss from Medical Malpractice

If your are injured as a result of medical malpractice and your injuries prevent you from being able to work for days, weeks, months, or permanently then you can make a claim for the actual income you have lost as a result of the medical malpractice.

Income loss includes both:

Past Income Loss: You are entitled to be compensated for your actual income loss up to the date of settlement or trial. Usually this loss is one that is capable of being calculated fairly accurately. For example, if you were being paid $500.00 a week and you can't work for 4 weeks as a result of your injuries, you are entitled to receive 4 weeks pay ($2,000.00) to compensate you for your past loss of income.

Future Loss of Income: If your injuries are going to prevent you from being able to work in the future, you are also entitled to be compensated for that loss. Unfortunately, there is no such thing as a crystal ball. Claims for future loss of income can be difficult to calculate with precision. No one knows, for sure, what the future will hold.

When valuing a claim for future loss on income, the court will have to consider whether your injuries will prevent you from being able to work for two months, two years or forever.

Calculating claims for future income loss usually requires us to retain the services of an actuary or an economist who are experts in calculating past and future income loss claims. These experts take into account factors like cost of living increases or raises that you would be entitled to receive during your career, the normal retirement age for persons of similar employment, the pension benefits you would expect to receive on retirement, and a host of other factors.

Diminished Earning Capacity:

In some cases, the evidence may prove that you, or your family member, will never be able to work. However, we may not be able to calculate exactly what that loss will be. For example, when a 3 ½ year old child suffers a severe brain injury, who is to say whether that child would have grown up to be a plumber, a doctor, or a rock star?

In cases where the exact amount of the future income loss is not certain, the court will consider awarding, compensation for what is called “diminished earning capacity”.

Everyone’s ability to work is an asset. In other words, your physical abilities, education, training and experience are all assets that provide you with the opportunity to earn an income. If any or all of those abilities have been limited or reduced to some extent by your injuries, you may be entitled to an award for diminished earning capacity.

Again this type of claim usually requires us to hire experts to calculate exactly how reduced your ability to work is and to what extent your ability to earn income has been diminished.

Continue reading "Income Loss in Medical Malpractice Claims" »

The latest edition of my book, The Consumer’s Guide to Medical Malpractice Claims in Canada: Why 98% of Canadian Medical Malpractice Victims Never Get a Penny in Compensation, is now on its way back from the printers.

You can get a copy of the book by contacting me through this blog. However, I am going to be posting excerpts from the book over the next few weeks to give you a taste of the information contained in the book.

Lynn Butler sent me a very kind note after reading a copy of the book. Here is what she had to say:

“I found The Consumer’s Guide to Medical Malpractice Claims most helpful. I would definitely recommend the guide to anyone seeking information: it was very informative, factual and easy to read. I would certainly recommend the guide to anyone wondering if they have grounds for a medical malpractice lawsuit.”

Jeff Baggaley contacted me about a pediatric medical malpractice claim. After reading the book he sent me a note to say:

“I have read your book on pursuing a malpractice claim in Canada. Let me say at the outset that your book is an invaluable and excellently written introduction to essential information which the possible claimant needs to know.

As you say, it saved me a lot of time for I am able to read it, and re-read it, as time permits. I very much appreciate the service your book provides.”

If you think you or a family member may have been a victim of medical malpractice you can contact me through this blog for a free copy of my book or you can call me toll free at 1-877-423-2050.