Halifax Medical Malpractice Lawyer Blog

In any medical malpractice case the plaintiff bears the burden of proving that the defendant caused the patient’s injury, disability or death.

In many cases the initial cause of the plaintiff’s injury was not brought about by the defendant doctor. Rather, the plaintiff presented with an illness or medical condition which is misdiagnosed and, as a result, the patient doesn’t get treatment that might have cured the illness or condition (or prevented further deterioration).

Loss of Chance

Doctors will defend these cases by claiming arguing that the loss of a chance of recovery is not a recoverable head of damages in Canada (see for example the Supreme Court of Canada’s ruling in Laferriere v. Lawson).

In order to recover damages, the plaintiff must show that the lost treatment probably would have resulted in full recovery. The lost opportunity to obtain proper medical care or the chance of recovery is not a recoverable loss.

To see how this defence plays out one need only look to the recent decision from the Ontario Supreme Court in Bennett v. Landecker.

Mr. Bennett was a long time patient of the defendant physician, Dr. Landecker. Bennett saw Dr. Landecker with a complaint of acute vision loss. Landecker examined Bennett and suspected that he was suffering from a detached retina, but could not find the detachment or any other evidence of a tear or hole in Mr. Bennett’s retina.

Dr. Landecker concluded that the probable cause of the vision loss was a retinal arterial occlusion. Dr. Landecker referred Bennett to his family doctor for follow up and suggested Bennett return in 6 weeks. Two days later Bennett suffered a total loss of vision in his eye due to his retina becoming fully detached.

Bennett was subsequently referred to Sunny Brook Hospital where he had two failed operations to reattach his retina. As a result, he suffered permanent loss of vision in his left eye.

Landecker defended the case on the basis that, at the time he examined Bennett, the detached retina was only a possibility, not a probability. His lawyers argued at the time Bennet was examined, there was only a small chance Bennet required surgery to for his retina. Therefore the defendant claimed that compensation for a mere loss of chance and should not be considered by the court or awarded compensation.

Mr. Bennett’s medical experts testified that, with timely treatment, there was a 90% to 95% chance of success of reattaching Bennett’s retina.

The court rejected the loss of chance defence. Justice Gilmore’s comments about this issue are found in paragraphs 92 and 93:

[92] The central question to be posed here is whether Mr. Bennett’s blindness in his left eye would have occurred but for the negligence of Dr. Landecker. Did his failure to provide follow- up on the possible retinal detachment diagnosis and failure to ensure that Mr. Bennett was given fulsome and proper instructions regarding any change or loss in his vision lead to retinal detachment or lead to a macula-off situation where retinal re-attachment was virtually impossible due to the length of time that had passed?

[93] In my view, the evidence supports that the answer to this question is “yes.” Although it is true that the retinal detachment likely started as early as June 24, 2005, it is also clear that the chances of complete re-attachment would have been substantially increased had Dr. Landecker arranged for a follow-up appointment a retinal specialist or some other form of follow-up the following week. Clearly such urgent follow-up was available as Dr. Landecker was able to arrange for Mr. Bennett to see Dr. Kertes at Sunnybrook on the same day that he was consulted on August 15, 2005. Again, in not following up on that possible diagnosis, Dr Landecker’s negligence was responsible to some degree for Mr. Bennett’s blindness. [Emphasis added]

Gilmore J. concluded in paragraph 100:

“Dr. Landecker’s negligence caused Mr. Bennett’s blindness in his left eye. But for Dr. Landecker’s negligence, the odds were excellent that Mr. Bennett’s retina could have been reattached and a reasonable level of vision restored… “[Emphasis added]

What’s Substantial?

How “substantial” an increase does a patient’s chance of recovery have to be before the claim is one of negligence rather than “loss of chance”?

Different types of injuries or conditions have different “success” rates with treatment. If timely treatment would increase a patient’s chance of recovery or survival by 10% is that substantial? Does the increase have to be more than 50% before it is considered to be “substantial”?

What Are “Excellent” Odds?

Different types of injuries or conditions have different morbidity (disability) and mortality (death) rates. I would argue that when considering the odds of recovery the court should not look at simply whether the patient’s chances of recovery with treatment were more than 50%. Rather the court must look at the norm, or baseline, and consider how the doctor’s misconduct changed, or reduced, the patient’s odds.

Cancer Survival Rates Different

For example take a look at the statistics from this article Cancer Survival Rates by Types of Cancer.

According to the article: “Breast cancer, the most common tumour in women, presents a high survival percentage: 83% of patients have survived this type of cancer after five years.”

I think anyone would agree that an 83% chance of survival is “excellent” odds.

On the other hand, the article says: “Lung cancer is one of the most aggressive tumours and survival after five years is very low: only 10% of patients diagnosed with a malignant neoplasm survive for more than five years.”

“Excellent” Depends on Point of View

If a doctor misdiagnoses a patient’s lung cancer and the patient dies, the patient has lost the 10% chance they had of surviving cancer. Defence counsel will argue the loss of a “mere” 10% chance of survival is not worthy of compensation.

But look at it from the patient’s point of view: Without proper diagnosis and treatment there is a 100% chance they will die. From the patients point of view, a 10% chance of survival is a “substantial increase” when compared to a 0% chance of survival.

Put another way, a 10% chance of survival is excellent odds when compared to a 100% chance of dying.

50% or Better

Unfortunately the answer to the question I posed above is that only odds of 50% or better are considered "substantial" or "excellent" the prevailing opinion of courts across Canada does not agree with the subjective approach to consideration of odds of survival.

See for example, in the Ontario Court of Appeal decision of Armstrong v. Centenary Health Centre, [2005] O.J. No. 2386 (Ont. C.A.). In this case, a woman’s doctor missed an early diagnosis of ovarian cancer. By the time it was detected, the cancer had progressed incurably.

“[93] I agree that the issue the trial judge was required to determine was whether it was more likely than not that Mrs. Armstrong would have survived for more than five years if the appellants had detected her cancer. There was no issue at trial that the medical standard for a cancer cure is survival for five years.”

The Court relied upon the previous decision of the Ontario Court of Appeal’s 2003 decision in Cottrelle et. al. v. Gerrard which stated that a chance of avoiding an unfavourable outcome is not sufficient to prove causation unless that chance meets the threshold of ‘more likely than not.’ (more than 50%).

What do you think? If a patient’s chances of survival are less than 50% and the doctor’s negligence reduces those chances even further is it fair to say that the doctor’s negligence didn’t cause or contribute the patient’s death or injury? As mathematicians would say; at what point do the patient’s chances of death or disability become “statistically significant”?

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.

Misdiagnosis Leads to Amputation

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

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

Patient Suspected an Infection

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

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

Doctor Wanted to Wait

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

Failed Attempts

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

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

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

Justice Dennis Thomas stated:

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

Prompt Treatment Would Have Limited Injuries

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

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

Prompt and Effective Treatment Critical

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

Differential Diagnosis Method

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

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

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

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

More Information

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

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

Biggest Hurdle?

The biggest challenge a plaintiff in a medical malpractice case usually faces is proving, on the balance of probabilities, that the defendant’s actions (or inaction) caused the plaintiff’s injuries.

Biological vs. Legal Cause

A recent case from the House of Lords in the United Kingdom examines the issue of causation in a wrongful death case and discusses the difference between the “biological cause" of death or injury and “cause in law”.

Although the decision is not binding on the courts here in Canada, the reasoning in the case is helpful for anyone who has to deal with the issue of causation in medical malpractice cases.

In Sienkiewicz v. Greif the court had to consider whether exposure to asbestos caused the death of Enid Costello.

Lord Phillips stated at paragraph 6:

“Methods of Proving Causation

Most claims for death or personal injury result from accidents. In such cases the cause of death or personal injury will seldom be in issue. A body of knowledge which I shall call “medical science” will enable a witness, expert in that science, to describe the precise mechanism by which the accident brought about the death or injury. I shall describe this as the “biological cause” of death or injury. It is sometimes referred to by the more general description of the “cause in fact”. In some cases, however, medical science will not yet have identified the precise mechanism by which an injury gives rise to a particular physical consequence. In such cases it may be possible to deduce that there was a causative link between the two by evidence of what usually happens. Epidemiological evidence that a particular injury or disease usually follows a particular type of bodily insult may enable a court to conclude in a particular case, on balance of probability, that the former was caused by the latter. “Post hoc ergo propter hoc”. A finding of causation based on such evidence is sometimes described as “the cause in law”.”

Lord Phillips’ decision examines the rule of epidemiological evidence in wrongful death cases and discusses whether proof that the defendant’s actions “doubled the risk” of death is the same as proving on the balance of probabilities that the defendant’s actions caused the plaintiff’s death.

Doubling the Risks

The court explained the "doubles the risk" test as follows:

“The “doubles the risk” test is one that applies epidemiological data to determining causation on balance of probabilities in circumstances where medical science does not permit determination with certainty of how and when an injury was caused. The reasoning goes as follows. If statistical evidence indicates that the intervention of a wrongdoer more than doubled the risk that the victim would suffer the injury, then it follows that it is more likely than not that the wrongdoer caused the injury.”

Lord Phillips concluded that:

“Where there are competing alternative, rather than cumulative, potential causes of a disease or injury … I can see no reason in principle why epidemiological evidence should not be used to show that one of the causes was more than twice as likely as all the others put together to have caused the disease or injury.”

Epidemiological Evidence and Causation

The court eventually went on to reject the epidemiological evidence with respect to causation in the plaintiff's case. However, the case does provide helpful direction to plaintiff medical malpractice lawyers who want to use epidemiological evidence to prove causation in medical malpractice claims.

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" »

Many Calls but Few Claims

I get hundreds of calls each year from people who think they have been the victim of medical malpractice.

Often the patient has very serious residual injuries or long term disability.

Sometimes a family member has passed away and the family is wondering if their loved one was a victim of medical malpractice.

But relatively few claims actually proceed to file a lawsuit or go to court. One of the reasons for that was examined in detail in a recent decision by the Ontario Court of Appeal.

No Causation = No Compensation

One of the most difficult concepts to explain to victims of medical malpractice is that their claim for compensation is limited only to the injuries caused by the defendant’s negligent conduct.

Causation is often the most difficult hurtle that a victim of medical malpractice has to overcome in order to receive compensation.

The Ontario Court of Appeal has confirmed this fundamental principle of medical malpractice claims

In Rollin v. Baker the plaintiff broke he wrist. The doctor that treated her in the emergency room was found to be negligent. However, the Ontario Court of Appeal reduced the amount of compensation that she was entitled to receive. The Court of Appeal found that the plaintiff’s damages were limited to the harm caused by the poor medical treatment and did not include all of the damages caused by the broken wrist.

The Court of Appeal summed up the evidence on causation as follows:

“In assessing non-pecuniary damages at $90,000, Dr. Baker submits that the trial judge improperly awarded Ms. Rollin damages for all of the pain and suffering associated with her broken wrist rather than for that resulting from the delayed detection of the displacement during the healing process. The trial judge’s reasons contain only the following sentence with respect to non-pecuniary damages. “After reviewing all of the evidence, it is my view that the appropriate amount under this head of damages would be $90,000.”

While that single sentence does not explain the basis of the amount, the trial judge’s unqualified review of how Ms. Rollin’s injured wrist has affected her life, plus her identification, in para. 14 of her reasons, of one of the issues before her as “the damages that Carole Rollin sustained as a result of the Colles’ fracture of her left wrist”, strongly suggest that the trial judge did assess damages as though Dr. Baker was responsible for all of the injuries his patient suffered as a result of the fall.

Furthermore, as I will discuss below, $90,000 is several times the usual quantum awarded for non-pecuniary damages in the case of a defendant fixed with full responsibility for a broken wrist, however severe the after-affects. Given the lack of reasons for assessing the damages at this amount and the strong suggestion of an error, this aspect of the judgment is not entitled to deference.”

If you want more information about the law of causation as it relates to medical malpractice claims, you can take a look at my book, The Consumers Guide to Medical Malpractice Claims in Canada.

The book is for sale on Amazon.

But, if you live in Atlantic Canada, I will send you a copy of the book free if you contact me through this blog.