Halifax Medical Malpractice Lawyer Blog

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

Implied Undertaking Rule

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

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

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

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

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

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

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

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

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

Meuwissen v. Perkin

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

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

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

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

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

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

The court ruled, at paragraph 94:

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

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

Unusual Circumstances

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

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

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

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

Hospitals Don't Learn From Mistakes?

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

When is a Mistake Not a Mistake?

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

More Serious Errors Don't Lead to Higher Reporting

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

Canadian Malpractice Victims Face Difficult Odds

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

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

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

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

Tip of the Iceberg

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

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

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

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

Continue reading "Most Hospital Mistakes Never Reported" »

A diagnostic error, or misdiagnosis, happens when a doctor (or other health care professional) reaches an incorrect conclusion about what is wrong with you.

In Canada up to 7.5% of patients experience some form of diagnostic error.

Why Diagnostic Errors Happen

There are many reasons why diagnostic errors can happen including:

Lack of information: Sometimes patients do not provide a complete or accurate medical history. If a doctor is not aware of significant signs or symptoms that the patient is suffering from they may not be able to accurately diagnose the patient’s problem.

Multiple doctors: When a patient is treated by several different doctors there may be problems with communicating information between health care professionals. When each doctor has one piece of the puzzle and they don’t all communicate to put the pieces together then diagnostic errors can occur.

Diagnostic inertia: If one doctor doesn't conduct a thorough examination and create a complete differential diagnosis list other doctors may follow the same incorrect path created by the initial misdiagnosis.

Failure to order or follow-up on test results: If a doctor fails to order an appropriate test or follow-up on the results of tests that they have ordered, patient safety can be jeopardized.

An Example

In one case we were involved in the emergency room doctor ordered blood tests on my client. The test results (that came back about an hour after my client was discharged from the emergency room) showed that he had a severe infection. The doctor did not notify the patient. The infection advanced to the point where it caused an abscess to my client’s spine and he became paralyzed.

10 Tips to Prevent Diagnostic Errors

1. After your doctor examines you ask for their “differential diagnosis”. Ask your doctor for the condition or conditions that they suspect and the reasons for their diagnosis.

2. Alternatives: Ask your doctor if there are any other reasonable alternative diagnosis for the signs and symptoms that you are suffering from.

3. Get an advocate: Many people are not comfortable questioning their doctor. Ask a family member or a friend to attend your examinations and take notes.

4. Make a list: Create a list of all of your symptoms. Go from the top of your head down to your toes and list all of the problems, signs and symptoms that you are concerned about. Record the time of day that the symptoms occurred and how long they lasted. Provide this information to your doctors when they examine you.

5. Medical history: If you see a doctor for the first time, write down a brief medical history including any past medical problems, any medications that you are taking, any allergies and any past medical conditions or surgeries.

6. Follow-up: Many diagnostic errors happen because tests are ordered but the doctor fails to read the test results when they are completed. If you are in the hospital ask your doctor for the results of your tests. If your family doctor has ordered tests, call back and ask for copies of the test results.

7. Google is your friend: After your doctor tells you their diagnosis, research the condition online so you know what signs and symptoms to look for.

8. Get a second opinion: You are entitled to ask your doctor for a second opinion. If you are not comfortable doing this ask a friend or family member to advocate for you.

9. Repeat tests: If you are still concerned about your ongoing symptoms ask your doctor to repeat the diagnostic tests.

10. Communication: The most important way to prevent diagnostic errors is to make sure there is full and open communication between you and your doctors. Tell your doctor about any questions or concerns that you have.

Nobody knows your body better then you do and the more information you are able to provide your doctor, the better he or she will be able to accurately diagnose your illness.

Continue reading "Patient Safety: 10 Tips to Prevent Diagnostic Errors " »

The Canadian Patient Safety Institute, a non-profit organization, has created a new website designed to provide the public and health care providers with patient safety information from around the world.

The website is located at www.patientsafetyinstitute.ca

The goal of the website is to provide access to safety advisories, alerts and other resources as well as to allow users to share information to help enhance patient care and protection.

The CEO of the Patient Safety Institute, Hugh McLeod stated:

“In a meeting with the VP of a busy hospital, I asked what is the one tool we could provide you with that would make access to patient safety information easier. Her answer to me was to have access to one website that would provide all information you need to know about hand hygiene, medication safety or any other patient safety and quality focus. We took the idea to heart and have spent the last 7 months building the improving care search centre.”

This is a tremendous initiative and I would urge everybody to login to and bookmark the Patient Safety Institute website.

Quebec became the first province in Canada to require hospitals to publicly disclose medical errors. Quebec’s Department of Health and Social Services has announced a new registry that will collect standardized data from 275 hospitals across the province.

The system will document all reported medical errors including:

1. Patient falls;
2. Supply problems; and
3. Medical record errors.

Incomprehensible Delay

The registry is being implemented 9 years after Quebec passed a law requiring hospitals to track “adverse events”. The goal of the legislation is to identify and correct any patterns of medical errors.

Jean Pierre Menard a medical malpractice lawyer from Montreal calls the almost 10 year delay in implementing the legislation “incomprehensible”.

First Step

As I mentioned in previous posts, until now, there has been no law requiring doctors of hospitals to disclose medical errors. This initiative by Quebec is an admirable first step in improving patient safety and consumer’s confidence in our health care system.

One Down Twelve to Go

Now that Quebec has made reporting hospital errors mandatory there are “only” nine more provinces and three territories that need to implement similar legislation.

What are they waiting for?

Continue reading "Quebec Orders Hospitals to Disclose Medical Errors " »

Doctors are still doing everything they can to prevent patients from posting negative comments on doctor ratings websites like Rate MDs.

I have discussed how some doctors in the United States require patients to sign a contract agreeing not to post negative comments about the doctor online before the doctor will agree to treat the patient: Doctors Forcing Patients to Sign Gag Orders.

One doctor sued her own patient for posting a negative review of the care provided by the doctor:Doctor Sues to Silence Patient .

Public Relations Problem

I think we can all agree that suing your own patient is a bit of a public relations problem for doctors who want to be seen as sympathetic and caring.

Becoming More Creative

It appears that some physicians are becoming a little more subtle in their efforts to manage their online reputations. Yesterday CBC reported that some doctors are requiring patients to sign an agreement that transfers the copyright (ownership) to the doctor for any comments posted by a patient about the doctor. Very clever.

Doctor Controls Patients Comments

Under such an arrangement, patients can are free to post reviews online. If the doctor likes what their patient says about them, presumably they will allow the commnets to remain online. But if a patient posts any negative comments, since the doctor owns the copyright to the comments, the doctor can contact the website and request that the comments be deleted.

Fighting a Losing Battle

I think the genie is out of the bottle on this. The internet simply provides too much opportunity for the free and open exchange of information. Doctors (and lawyers and other professionals) need to face that fact and treat their patients (and clients and customers) accordingly.

What do you think?

In 2001 Spencer Sullivan had elective surgery for neck and back pain at the University of California San Francisco Medical Centre. The surgery went well and there were no complications.

Negligent Nursing Care

But while Sullivan was in the hospital recuperating his nurse, Rose McKenzie, gave him two different types of pain medication without checking with the doctors who were in charge of Sullivan’s care. McKenzie then failed to monitor Sullivan throughout the night.

Severe Brain Injury

The next morning Sullivan was unresponsive and suffered a severe brain injury and quadriplegia. Sullivan’s family sued McKenzie and the hospital and in 2005 settled out of court for $6 Million.

Nursing License Revoked

In 2008 the State of California revoked McKenzie’s nursing license for gross negligence.

Working in Canada

But since 2002 McKenzie has been working as a nurse in Ontario at Oakville Trafalgar Memorial Hospital. Until recently she was in good standing with the College of Nurses of Ontario.

Communication Critical

In Canada, doctors are regulated by their provincial College of Physicians and Surgeons. If a provincial College makes a disciplinary finding that affects the license of a doctor, the College notifies all regulatory bodies in Canada and the United States.

Nursing Organizations Don't Talk to Each Other

Incredibly, the regulatory bodies that license nurses in North America do not have any standard practice for sharing information regarding disciplinary offences against nurses!

In Canada nurses are required to self report to their provincial licensing body if they are being investigated for professional negligence or misconduct.

They are also expected to report any findings against them.

But there does not appear to be any system in place to check to make sure that nurses actually tell the College of Nurses when they have been disciplined.

The various provincial nursing bodies also don’t have a system in place to communicate with one another when a nurse transfers from one jurisdiction to another.

So a negligent nurse like Rose McKenzie can nearly kill someone, leave them paralyzed, lose her license to practice...and then just move to Canada and carry on treating patients.

Continue reading "Negligent Nurse Who Lost License Still Working in Canada" »

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,"

according to the Health Authority.

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" »

Apologizing Reduces Mistakes

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?

Continue reading "Apologizing for Mistakes Reduces Mistakes!" »

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.

"What's the difference between Misdiagnosis and Failure to Diagnose?"

The majority of medical malpractice claims that I am asked to review involve either a misdiagnosis of a medical condition (recognizing the symptoms but getting the diagnosis wrong) or the failure to diagnose a medical condition (not recognizing that there is a medical problem that requires treatment).

Making a mistake may not be malpractice

Just because the doctor that treated you made a mistake in diagnosing your illness, or failed to diagnose your illness at all, does not necessarily mean that you have a medical malpractice claim.

"How do I know when misdiagnosis is malpractice?"

There are a number of questions that need to be answered in order to determine whether a misdiagnosis (or failure to diagnose) actually led to medical malpractice:

What were you symptoms that you described to your doctor?

What was the misdiagnosis (wrong diagnosis)?

What was the correct diagnosis?

Who eventually gave you the right diagnosis?

How long did it take before you received the correct diagnosis?

How long did it take before you received proper treatment? (For example, was it weeks, months, or years?)

If your doctor doesn’t properly diagnose your symptoms, but another doctor discovers the problem shortly afterwards, you may have difficulty proving that a delay of a few days or weeks or even months made a difference in the outcome of your illness.

Long delays may not matter

There are some medical conditions where even a long delay in diagnosis has little effect on the outcome (or prognosis) of the patient’s treatment. For example, some types of cancer (pancreatic) have such a bad prognosis (outcome) that there is little that can be done no matter how much time you have to seek treatment.

On the other hand, some types of cancer grow so slowly that even a long delay in diagnosis will not affect the eventual outcome of the illness. For example, prostate cancer grows very slowly. The majority of men over the age of 50 have some early signs of prostate cancer. But prostate cancer usually grows so slowly that other types of illnesses (or old age) cause the patient’s death long before the prostate cancer.

But even short delays can be critical

On the other hand, there are some types of medical conditions that are so serious that a delay of hours or even minutes can make the difference between whether the patient will have a favorable outcome or be left totally and permanently disabled. For example, subdural hematomas (bleeding on the brain) or epidural abscesses (a lesion on the spinal cord) are medical emergencies where a delay of hours can be deadly.

Every case is different

The simple fact is that just because your doctor may have made a mistake in diagnosing your illness, or may have delayed in coming up with the proper diagnosis, does not mean that you have the grounds for successful medical malpractice claim.

The bottom line

The bottom line is that your medical malpractice claim will depend on the specific facts in your case. If you think you or a family member have been the victim of medical malpractice, you should get the advice of an experienced medical malpractice lawyer as soon as possible.

Continue reading "Misdiagnosis or Failure to Diagnose in Medical Malpractice Claims" »

When I am asked to review a possible claim for a client wondering if they have been a victim of medical malpractice, it often takes months of investigation and requires reviewing hundreds of pages of medical records and reports. In many cases I have to get a medical expert to provide a medical-legal opinion on the issue of standard of care or causation.

However, there is a way for you to figure out for yourself if you have medical malpractice claim that is worth talking to a lawyer about to see if you may have a claim.

Two Simple Questions:

There are two questions that you need to ask yourself. If there is a clear cut answer to both questions, then you may have a medical malpractice claim that is worth pursuing.

The first question you need to ask yourself is:

“What did my doctor (nurse or health care professional) do or fail to do that was careless?”

If there is no clear answer to this question, or if there was a series of problems or errors that led to your injury, or if you are not exactly sure what caused the problem that you are concerned about, your medical malpractice claim may be difficult to prove

The second question you need to ask yourself is:

“If the medical malpractice had not happened, how would things be different for me now and in the future?”

In order to be entitled to receive compensation you must be able to clearly establish that you suffered an injury as a result of your doctor’s (or health care provider) negligence. If your doctor was negligent, but you did not suffer any injury, then you probably don’t have a claim that is worth pursuing.

For example, if you received the wrong medication and spent months worrying about it, but suffered no ill effects, than you probably don’t have a claim that is worth pursuing.

In other words, unless you can clearly explain to a judge or a jury what the injury is and how it is going to affect your life then it might be difficult for you to receive enough compensation to make it worth the expense of a complex medical malpractice trial.

I go into more detail on these questions and a number of other issues that you need to be aware of in my book: The Consumers Guide to Medical Malpractice Claims in Canada: Why 98% of Canadian Medical Malpractice Victims Never Get a Penny in Compensation. You can get a free copy of the book by contacting me through this blog or by calling my office at (902) 423-2050.

Oprah Investigates Medical Malpractice

My wife loves the Oprah show. She DVR's the program and watches it (almost) every night. Tonight she asked me to watch todays show about Medical Errors.

100,000 Americans 24,000 Canadians Die Every Year

Oprah and one of her regulars, Dr. Oz turned a spot light on a problem that kills more than 100,000 American's each year, medical malpractice. A study recently published by the Canadian Medical Association Journal determined that up to 24,000 patients in Canadian hospitals die each year and many more left injured as a result of preventable medical errors.

Dennis Quaid Interviewed

Oprah interviewed Dennis Quaid who talked about the ordeal he and his wife went through when their 12 day old twins were overdosed with Heparin.

Smart Patient Checklist

Dr. Oz described a checklist to tell patients what they can do to help prevent them from becoming victims of medical malpractice.

Checklist Prevents Deaths

I have already posted about how a Simple Checklist Helps Prevent Deaths and Complications after Surgery . Certain hospitals have reduced surgical deaths by more than 40% simply by using a checklist before surgery to make sure that they are operating on the correct patient or operating on the right site.

Will the Oprah Effect Kick In?

I hope that the Oprah Effect kicks in after todays show. I believe that medical malpractice is one of the most serious, yet under reported, health problems in North America. The problem is that most people who suffer a medical error have no idea they may have been the victim of medical malpractice.

Doctors Don't Have to Disclose Errors!

Unbelievably, there is no law in Canada that requires doctors, nurses, or hospitals to tell patients when they have been the victim of medical malpractice.

Want to know what to do if you think you have been a victim of medical malpractice? Keep reading...

Continue reading "Medical Malpractice and "The Oprah Effect"" »

Can you believe this?!

There are doctors who are forcing patients to sign a contract promising not to criticize the doctor, "his expertise and/or treatment."

No signature-No medical care

If the patients won’t sign the contract, the doctors won’t treat them.

I will ask again: Can you flippin’ believe this?!

Doctors don't like online reviews

The contracts are in response to websites that are springing up around the internet that allow patients to post reviews about their doctors. Doctors don’t like the fact that the websites allow patients to post negative comments, but doctors have no way to respond without breaching patient confidentiality.

Blackmail?

So they have resorted to blackmail. Sign the paper or don’t get medical care!

Can you believe this?!

Patients come to their doctors when they are sick, afraid and vulnerable. If you needed medical care and a doctor shoved a piece of paper in front of you and said: “Sign it or find another doctor” what would you do? I think most people would sign anything in order to get the medical care they need.

One of the websites doctors are concerned about is RateMDs.com. Co-founder John Swapceinski, said that in recent months, six doctors have asked him to remove negative online comments based on patients' signed waivers. He has refused.

"They're basically forcing the patients to choose between health care and their First Amendment rights, and I really find that repulsive," Swapceinski said.

I agree. It is repulsive…and I think it is also a violation of doctor’s fiduciary duty to their patients.

What about the Hippocratic Oath?

Perhaps the doctors that are using these contracts have forgotten their Hippocratic oath. When taking the oath, that deals with the ethical practice of medicine, doctors promise: “ To keep the good of the patient as the highest priority.”
Perhaps they need to add “…unless the patient complains about me.”

What Happened to Freedom of Speech?

Admittedly these types of online reviews are unscientific and subjective. But why shouldn’t patients have the right to express their opinions (as long as they aren’t slanderous)? Why shouldn’t people have the opportunity to hear what other patients have said about the specialist they have been referred to?

So what do you think?

As a public service here are some of the online doctor reviews that I could find:

Rate MD's

Doctor Reviews Online

My Doc Hub

Angies List

Related posts:

You Can File a Complaint About Your Doctor!

Continue reading "Doctors Forcing Patients to Sign Gag Orders" »

Posted by John McKiggan | Permalink | Email This Post | Comments (2)

Posted In: Anaesthesia Errors , Birth Injuries , Brain Injuries , Disclosure of Errors , Drug Injuries , Emergency Room Errors , Informed Consent , Medical Malpractice , Nursing Errors , Prescription Errors , Surgical Errors