Halifax Medical Malpractice Lawyer Blog

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" »

Justice Muise of the Supreme Court of Nova Scotia recently released his reasons in McIntosh v. Isaac Walton Killam – Grace Health Centre.

The Facts

Ms. McIntoshs’ baby was delivered at the IWK by C-section after a period of pushing in an attempt to deliver vaginally. Ten days after the delivery she became aware of pain in her left hip. She had not had any prior problems with her hip before her delivery.

Approximately one year later, x-rays showed Ms. McIntosh had bone fragments in her hip. She had to undergo surgery and a subsequent hip replacement. Ms. McIntosh sued the IWK claiming the student nurse that was supporting her legs during the delivery caused the damage to her hip joint.

Standards for Students?

One of the issues that Justice Muise had to determine was whether a student nurse should be held to the same standard as a registered nurse.

Standard of Care for Student Doctors

I have previously discussed the issue of the standard of care for medical students. See for example Medical Malpractice Claims in Canada: Standard of Care for Medical Students - Anderson v. Greene

Standard of Care for Nursing Students

Justice Muise had this to say about the issue:

[9] The nursing student is to be held to the standard of care expected of a registered nurse of average competence and ordinary skill facing the circumstances in question. Judicial comments to that effect have been made in Tekano (Guardian ad litem of) v. Lions Gate Hospital, 1999 CarswellBC 1709 (B.C.S.C.), at paragraph 109, and in Dixon v. Calgary Health Region, 2006 CarswellAlta 378 (A.B.Q.B.), at paragraph 73.

[10] The standard of care expected of nurses is dealt with in the same way as the standard of care expected of other health professionals. Useful comments, in relation to the standard of care of health professionals generally, are contained in paragraph 6.26 of the Canadian Health Law Practice Manual (Markham: LexisNexis Canada Inc., 2000) where it is stated:

“The conduct of the institution and its health professionals will be judged on whether the care provided met a reasonable standard in the particular circumstances of the case. The health practitioner is not held to a standard of perfection. The test is not whether the patient received the best care possible from the health practitioner in question. Rather, the Court will look at what the reasonable health professional in a comparable setting would have done in like circumstances.”

After an examination of the case law and considering the evidence by both parties, Justice Muise concluded:

“Based on the forgoing, I find that the plaintiff has not established, on the balance of probabilities, that the student nurse, Cynthia Mann, breached the applicable standard of care.”

Why is this important?

This case is important to Nova Scotians, and Haligonians in particular because the IWK-Grace Health Centre and the Halifax Infirmary are both teaching hospitals. Much of the primary medical care provided to patients in these hospitals is provided by students (both medical and nursing) obtaining further training in their profession.

However, patients in these hospital are usually not told that the person that is treating them is a student and whether it is their first day in the hospital or whether they have been training for years.

Increase in Medical Errors

There is a significant increase in mortality rates (death) for patients who are admitted to teaching hospitals in July: Beware the July Effect.

Researchers have concluded that in fact the spike in mortality rates is usually due to the fact that July is when medical students begin their training in their new specialties.

Be an Advocate

As patients, we all have certain rights. One of those rights is to be provided with competent medical care. Most of the health care professionals who treat patients here in Nova Scotia are capable and dedicated professionals. However, everyone makes mistakes and lack of experience can lead to medical errors.

If you have a concern about the lack of training or experience of anyone that is providing you with medical care you have the right to ask that a more experienced professional provide your treatment.

Now more than ever effective medical and hospital care often depends on patients, or their familt members, being their own advocates.

What Do You Think? Leave a comment and let me know.

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 " »

Hospital Acquired Infections

I recently posted about the dangers of hospital acquired infections like C-difficile and MRSA.

C- difficile Infections kill 4 in Cape Breton Hospitals

I also provided some advice to patients about how they can protect themselves from hospital acquired infections.

For the most part, these infections stem from hospital staff failing to follow proper sterilization techniques including simple precautions such as washing their hands before examining patients.

I recommended that patients keep a bottle of hand sanitizer by their beds and asking staff to use it before touching the patient.

My colleague Patrick Malone, a medical malpractice lawyer from Washington D.C. has some good advice on his blog about how to tactfully ask doctors and other healthcare staff to wash their hands.

The advice comes from Dr. Steven Kussin author of the book “Doctor, Your Patient Will See You Now”.

The recent series of C-Difficile infections in Cape Breton hospitals has brought some media attention to the problem of Hospital Acquired Infections.

I was doing some research on a case and came across information of a new antibiotic resistant "Superbug" that is being found in hospitals.

Carbapenem-Resistant Klebsiella pneumonia or CRKP is an antibiotic-resistant organism that can cause infections in health care settings like hospitals and nursing homes. The bacteria is often associated with pneumonia, bloodstream infections, wound or surgical site infections, and meningitis.

High Mortality

Patients infected with the bacteria have a very high risk of mortality (death). Previous outbreaks have had a mortality rate of up to 35%.

Limited Treatment Options

The CRKP pathogen is an enterobacteria, in the same family of bacteria as E. coli which als has a high mortality rate. CRKP is usually treated with the antibiotic colistin, or a similar drug. However colistin is so strong it is often toxic to patients.

So far CRKP has only been found in healthcare facilities. Unlike C-Difficile and MRSA and other superbugs, the organism has not spread into the community in general.

What Can You Do To Protect Yourself?

Take a look at my previous post for tips on protecting yourself from Hospital Acquired Infections like CRKP, C-Difficile, and MRSA.

C- Difficile Infections kill 4 in Cape Breton Hospitals

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.

Cape Breton District Health Authority has stated that 21 patients in two Cape Breton Hospitals have tested positive for the bacteria C. difficile. Four people have died as a result of the infections.

Hospital Acquired Infections a Deadly Problem

Nosocomial infections (Hospital acquired infections) are the fourth largest killer in Canada.

This isn't a new problem. Ontario's Auditor General released a study three years highlighting the concerns about the increasing frequency and dangers of hospital acquired infections.

Thousands of Canadian Patients Die Each Year

Each year, 220,000 - 250,000 hospital acquired infections result in 8,000-12,000 deaths.

The two most common types of Hospital acquired infections are MRSA, short for methicillin-resistant Staphylococcus aureus and C. Difficile.

C. Difficile Infections

C. Difficile is a bacteria spread by touching a surface or skin that is contaminated with fecal matter.

It appears the recent deaths are due to a new more virulent strain that has been found in Canadian hospitals over the last two years.

Hospital Infections are Preventable

The Centers for Disease and Prevention Control (CDC) estimates that over 2 million hospital acquired infections occur annually in the United States and are responsible for 90,000 deaths.

Not all these infections are the resut of negligence. But , Betsy McCaughy, the founder and chair of the non-profit patient safety organization Committee to Reduce Infection Deaths, says that "the evidence is overwhelming that nearly all infections are preventable."

The most shocking (or saddest fact) is that according to CUPE (the largest nurses union in Canada) thirty to fifty per cent of these hospital-acquired infections are preventable!

Hospital Infections Lead to Malpractice Claims

I am currently representing the family of a young man who died from an infection he developed after he was admitted to hospital. In the course of researching this case I learned that every year approximately seven percent of Canadian hospital admissions—an estimated 222,000 Canad­ians—pick up an infection while in hospital. About 8,000 of them die.

"How Can I Protect Myself?"

There are 3 things you can do to protect yourself Hospital Acquired Infections

1. Ask hospital staff to disinfect their hands before touching you. Keep an alcohol-based sanitizer in your room to make it easy for them. They are supposed to do this automatically, but studies have shown that only 40 per cent of health-care providers in Canada properly washing their hands.

3. Ask for hospital tubes to be removed shortly after surgery, or avoid having them when it's possible. because they are invasive, I.V.'s or feeding tubes are a major source of infections.

4. Leave hospital as soon as you can to go home. Unfortunately, hospitals are dangerous places.

Continue reading "Nova Scotia Medical Errors: C- difficile Infections kill 4 in Cape Breton Hospitals" »

My colleague, Ches Crosbie recently posted about an American Journal of Obstetrics and Gynecology report that studied medical charts for more than two millions births in California over a 14 year period. According to the study children born between the hours of 10 PM and 4 AM were 22% more likely to develop cerebral palsy.

Ches suggested:

Hospitals already have issues with staff shortages and fatigued workers, so it makes sense to me that these problems might be worse during the "graveyard shift".

I couldn't agree more. See for example Distractions & Interruptions Lead to Nursing Errors.

Ches's link reminded me of an article I posted about last year:
Beware the July Effect:Hospital Deaths Spike in Summertime

Teaching hospitals experience higher rates of medical errors and deaths in the summertime, when medical students start their hospital training.

Night time or summertime; when medical or nursing staff are tired, over worked or inexperienced, it can only lead to more medical errors.

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" »

There are three things that an injured patient must prove in order to be entitled to receive compensation:

1. What is the standard of care?

2. Did the defendant fail to meet the standard of care?

3. Did the failure (if there is one) cause the patient’s injuries?

Specialists Held to Higher Standard

The Supreme Court of Canada has clearly stated that doctors who specialize in specific areas of medicine are held to a higher standard of care than doctors in a general or family practice. See for example ter Neuzen v. Korn.

As far back as 1954, the Supreme Court of Canada stated this principle clearly in Wilson v. Swanson:

What the surgeon by his ordinary engagement undertakes with the patient is that he possesses the skill, common knowledge and judgement of the generality or average of the special group or class of technicians to which he belongs and will faithfully exercise them.

What About Medical Students?

In many hospitals throughout Canada the primary medical care is provided, not by a specialist, but by medical students who are obtaining further training in their specialty. The medical students, called residents, typically spend one, two, three or four years training to become certified to practice in a particular specialized field of medicine.

Different Standards?

The question then becomes if the alleged medical malpractice was committed by a medical student/resident should the student be held to the higher standard of care of the medical specialist or the lower standard of care of the general practitioner?

Medical Student Claims Lower Standard

This is a question that was recently addressed by the Alberta Court of the Queens Bench in Anderson v. Greene. The plaintiff, Ms. Anderson, alleged she was injured as a result of negligence by two defendants, one of whom, Dr. Abdulhafid, was a fourth year resident of Foothills Medical Centre.

Dr. Abdulhafid did not want to be held to the standard of care of a specialist in obstetric and gynaecological medicine. Rather, he argued he should be “held to the standard of a fourth year resident in a five year obstetrics and gynaecology program at the University of Calgary.”

Lack of Training Doesn’t Lower Standard

Justice Erb of the Albert Court of the Queens Bench pointed out that:

While a higher degree of training and experience by the doctor may raise the applicable standard, a lack of training and experience will not lower it.

Justice Erb concluded the issue by stating:

Here, Dr. Abdulhafid as a fourth year resident in a five year program had undergone seven years of medical education in Libya where he conducted laparoscopic surgery. His testimony disclosed that by second year he had the opportunity to do part of the laparoscopic surgery by making incisions and using the trocars under supervision. On March 5, 2003, he was an experienced physician who had performed many laparoscopies, and therefore held to the standard of an obstetrician and gynaecologist.”

What Does it Mean?

The average patient in the hospital has no idea whether the people that are providing them with medical care are doctors, specialists, or medical students.

It can be unsettling to learn that the doctors who are treating you are actually medical students and you are a part of their training and education.

Good News

It is at least reassuring to know that if a medical student makes a mistake that leads to an injury, they will not be able to avoid responsibility by arguing that they should be held to a lower standard of care.

Want to Learn More?

If you want to learn more about medical malpractice claims, you need to read a copy of my book, The Consumer’s Guide to Medical Malpractice Claims in Canada: Why 98% of Canadian Medical Malpractice Victims Never Receive a Penny in Compensation.

You can contact me through this blog or call toll free in Atlantic Canada 1-877-423-2050 and we will send you a copy, free, anywhere in the Maritimes.

Winnipeg police have announced they have created a "special team" to conduct a criminal investigation into the death of Brian Sinclair.

Medical Malpractice Claim Filed After Hospital Waiting Room Death

Mr. Sinclair died in the Emergency Department of a Manitoba hospital after waiting 34 hours to be seen by a doctor.

A corner's inquest has been called.

Criminal Charges Against Doctors Unusual

Criminal prosecutions in cases of alleged medical negligence are extremely rare in Canada. That is because there is a different burden of proof that applies to criminal prosecutions and medical malpractice claims.

In a criminal prosecution the criminal charges must be proven "beyond reasonable doubt". But in a lawsuit for medical malpractice, negligence must be proven "on the balance of probabilities".

For a more detailed explanation about the differences in the burden of proof, take a look at one of my earlier posts Medical Malpractice Claims: The Burden of Proof and O.J. Simpson

Medical malpractice can happen in a variety of ways. Often there are simple steps that can be taken to reduce or eliminate the chance that patients may suffer an injury (or worse) due to malpractice.

Reduces Errors

I have posted before about how using surgical checklists helps reduce medical errors and prevents deaths due to surgical errors.

Reduces Deaths

Now a new research study conducted in American Veterans Affairs Hospitals has shown that surgery deaths dropped by as much as 18% in hospitals that used surgical checklists.

The study involved results from almost 200,000 surgeries performed at 74 hospitals over 3 years. In hospitals that did not use the checklist there was no change in the number of surgical deaths. The results of the study have been published in the Journal of the American Medical Association.

Everything Old is New Again

The use of surgical checklists as a means to prevent medical malpractice, surgical errors and deaths is not new but it does appear to be receiving renewed interest by health care providers.

CMPA Advocates Use of Surgical Checklists

Here in Canada, the Canadian Medical Protective Association advocates the use of surgical checklists. The September issue of the Canadian Medical Protective Association Journal contains an article identifying a number of sources of medical errors which can be eliminated or reduced through the use of surgical checklists:

Patient related issues:

• Inadequate confirmation of informed consent, the nature of the planned medical procedure, failure to properly identify the site of the surgery and failure to display relevant imaging studies (x-rays and ct scans etc.) often leading to wrong site surgery.

• Absence of a timely review of a patient’s history and medical test results (which may result in the doctor overlooking or not being aware of factors that may increase the patient’s risk).

• Issues with respect to allergy status, the availability of blood products and patient positioning during surgery.

Medication issues:

• Failing to administer prophylactic antibiotics before surgery.

• Failing to consider the need for venous thromboembolic prophylaxis.

• Failing to properly check anesthesia being used during procedures.

Equipment Issues:

• Failing to confirm that equipment used in the surgery is functioning properly.

• Inadequate anesthesia safety equipment (turning off or disabling monitors/alarms).

Is Not Using a Checklist Negligent?

The use of surgical checklists is still not standard practice in hospitals across Canada. Some hospitals and doctors use them, some do not.

It is clear that using a checklist can help reduce or prevent negligence.

Given the overwheming evidence that using surgical checklists reduces morbidity (injury) and mortality (death) one has to ask the question: "Is the decision not to use a surgical checklist negligent?"

If a pilot takes off without going through the standard pre-flight checklist, I think we would all agree the pilot was negligent. If a doctor performs surgery without going through a standard checklist is the doctor negligent?

What do you think?

Continue reading "Surgical Checklists Save Lives: Help Prevent Medical Malpractice Claims" »

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" »

There's an interesting article in today's issue of the Wall Street Journal about how medical malpractice lawsuits help provide better medical care.

According to the article:

“Medical professionals are finding lessons in these and other past malpractice cases. By analyzing the breakdowns in care that led to missed, delayed or incorrect diagnoses, insurers and health-care providers are developing programs to avert mistakes. . . . Diagnostic errors are the leading cause of malpractice suits, accounting for as many as 40% of cases and costing insurers an average of $300,000 per case to settle, studies of resolved claims show. Peter Pronovost, a patient-safety researcher at Johns Hopkins University, estimates that diagnostic errors kill 40,000 to 80,000 hospitalized patients annually, based on autopsy studies over the past four decades.”

The article quotes American statistics, but the issues are the same here in Canada. Medical errors kill up to 24,000 Canadians every year.

In fact, the Canadian Medical Protective Association issues a newsletter notifying doctors about medical negligence lawsuits across the country. The idea is that by educating doctors about mistakes made in cases that lead to a lawsuit, physicians can avoid making similar mistakes in other cases.

Litigation brings problems that might otherwise be hidden to light. Education and awareness helps prevent the problems from happening again.

I am currently investigating a medical malpractice claim where my client suffered catastrophic injuries after developing pre-eclampsia so this story caught my eye.

CTV News has reported that an international team of doctors claim to have discovered 14 telltale metabolites that appear in the blood in early pregnancy that signal an increased risk for pre-eclampsia.

The researchers hope the discovery could one day mean a simple, cheap blood test for the life-threatening condition.

Man Dies In Hospital Waiting Room
The family of an aboriginal man found dead after spending 34 hours in an emergency department says it will sue a Winnipeg hospital, medical staff, the regional health authority and the Manitoba government.

Brian Sinclair, a 45-year-old double amputee with a speech problem, was found dead in his wheelchair in the Winnipeg Health Sciences Centre's E. R. after spending 34 hours in the hospital's waiting room.

Death Could Have Been Prevented

An autopsy performed shortly after his death by the province's Chief Medical Examiner determined Sinclair died of a blood infection. Dr. Thambirajah Balachandra, said Sinclair's death could have been prevented if the blood infection had been treated.

Sinclair's family is now considering a lawsuit against the Hospital and the Health Authority.

Wait Times a Potentially Deadly Problem

Emergency Room wait times are a constant and growing problem in hospitals across the country. For example see Sick, Injured Patients Flood Halifax Emergency Rooms where the CBC reported that Dr. John Ross, Head of the Emergency Department at the QEII Health Sciences Centre , the province's largest E.R., declared a "code orange" for about an hour, as patients lined the corridors and others waited outside in ambulances because of a lack of suitable hospital beds.

Dr. Ross has since tendered his resignation from Capital Heath.

Delays Increase Costs Decrease Quality of Care

An article published in July in the BMC Emergency Medical Journal confirmed that Emergency Department delays contributed to increased health care costs and decreased quality of care.

There are many reasons for Emergency Room delays. The solutions are not simple. However, as long as Emergency wait times continue to increase, patient care is going to suffer.

What do you think can be done to decrease wait times? Let me know what you think in the comments.

Continue reading "Medical Malpractice Claim Filed After Hospital Waiting Room Death" »

Summertime is Dangerous in Hospitals

Past studies have shown that teaching hospitals experience higher rates of medical errors. It is referred to as the "July phenomenon" in the U.S. or even more morbidly the "August killing season" in the U.K. The problem has been confirmed to exist in Hospitals in Australia as well.

More Medical Students = More Deaths?

Ironic isn't it? Hospitals have to meet higher standards to be certified to teach medical students. Higher standards for the students but it ends up resulting in lower quality care for patients.

A new study has identified a ten percent increase in deaths due to medication errors . The death rate spikes in July, when all the eager new med students graduate and start their training.

One more reason to be careful this summer.

Continue reading "Beware the July Effect:Hospital Deaths Spike in Summertime" »

Medical Experts Required

Expert evidence is always required in medical malpractice claims to establish the standard of care and whether there was a breach of the standard of care, or at least that has assumed to be the case by medical malpractice lawyers.

In fact, I recently posted about a claim here in Nova Scotia that was dismissed because the plaintiff failed to present appropriate expert evidence.

Medical Malpractice Claim Struck Out for Lack of Expert Evidence

Sometimes Experts Not Necessary?

However, a recent decision from the Ontario Court of Appeal indicates that an expert medical opinion may not be necessary to establish a breach of the standard of care in a medical malpractice claim.

Vandergiessen v. Trillium Health Centre (Mississauga), was released by the Ontario Court of Appeal last week.

In that case, the Court of Appeal stated:

“In our respectful view, the motion judge erred by granting summary judgment on this record. Not all claims against medical doctors require expert opinion evidence that the applicable standard of care was not met: See Ter Nuezen v. Korn, [1995] 3 S.C.R. 674 at paras. 40-49.

While the appellant may be unable to establish elements of her claim without an expert opinion, the claims advanced by the appellant against the respondents involve more than a typical allegation of medical malpractice. The appellant claims that statutory procedures and statutory conditions for her involuntary committal were not followed or satisfied. In our view, these allegations fall into the category of claims that may be established without an expert opinion. They are not matters that rest solely upon the opinion of experts as to whether the requisite standard of care was met.”

What does it mean?

If a plaintiff’s claim is based on an allegation that a doctor failed to meet the “standard practice” of other doctors and that the plaintiff suffered an injury as a result, I believe plaintiffs will still require an expert medical opinion to assess the standard of care.

However, in cases where there are certain statutory requirements or laws that a doctor has to meet, those requirements may be able to be proven without the enormous cost and expense of retaining an expert to provide a medical-legal opinion.

Continue reading "Medical Malpractice Claims: Is Expert Evidence Always Necessary?" »

Distractions Cause Nursing Errors
Nurses who are distracted or interrupted during their medical preparation experience higher levels of medical errors.

I have posted before about how overworking causes errors that lead to medical malpractice.

Overworked Nurses Causing Medication Errors

However, a recent study published in Patient Safety and Quality Health Care has established a link between common distractions that nurses experience in the work place and the rate of medical errors.

Key Findings:

Errors were classified as “procedural failures” for example failing to properly read a medical label, or “clinical errors” like giving a patient the wrong drug or the wrong dose of the correct drug.

Interruptions occurred during more than half (53%!) of all medical administrations.

Each interruption was associated with a 12% increase in clinical errors.

Although most errors (almost 80% had little or no impact on patient care, almost 3% were considered major errors which endangered patient safety.)

The most common procedural error was failing to confirm that the proper patient was receiving the proper prescription.

The most common clinical error was administering the medication at the wrong time.

This study was conducted in the United States where approximately 98,000 Americans are killed every year as a result of medical errors. In Canada more than 24,000 Canadians die each year as a result of medical errors.

Medical Malpractice in Canada: How often does it happen?

In an era of budget cuts and financial restraint healthcare workers are being asked to do more and more with fewer resources. By identifying the factors that can lead to medical errors the study can, hopefully, help eliminate medical errors that endanger patient safety.

As a result of this study, and others like it, some hospitals have actually implemented “do not disturb” zones so nurses can have uninterrupted periods of time to administer medication and clinical care.

Continue reading "Distractions & Interruptions Lead to Nursing Errors" »

Mistakes May Not Be Negligence

The Ontario Court of Appeal has ruled that a doctor’s “error in judgment” was not evidence of negligence.

Roger Lawrence was admitted to the Welland Hospital as a result of severe stomach pains. The physician treating him concluded that he was suffering from gallbladder colic. The following day the surgeon performed a laparoscopic cholecystectomy.

Over the next 12 days Mr. Lawrence’s condition alternately improved and deteriorated. He began to show signs of distress and was air lifted to Mount Sinai Hospital where he eventually died of necrotizing pancreatitis.

Standard of Care

As is usually the case in medical malpractice claims there were different opinions from the plaintiff’s experts and the defendant’s experts as to whether the defendant surgeon met the standard of care required of the reasonably competent doctor.

Treatment "Reasonable"

The opinion of the doctors called on behalf of the defendant was that the doctor’s approach to Mr. Lawrence’s treatment was “reasonable” and met the expected standard of practice.

At issue was the doctor’s decision to wait and see how Mr. Lawrence’s condition improved (or deteriorated) before taking further action.

Causation Not Proven

It was not clear from the evidence presented by the plaintiff at trial that earlier investigation or alternate treatment would have changed the outcome in Mr. Lawrence’s case. In other words, the plaintiff didn't prove that the alleged mistake caused Mr. Lawrence's death.

Consequently the trial judge ruled that the plaintiff had not established that the defendant was guilty of medical malpractice. The Court of Appeal upheld the trial judge’s decision and stated:

“In our view, the trial judge made no such error in finding not only that the respondent’s treatment of Mr. Lawrence did not fall below the standard of care but also that causation had not been established”

Mistakes Evidence of Negligence Not Proof of Negligence

This case is a perfect example of something that is often difficult to explain to patients who have been seriously injured or family members who have lost a loved one. Just because a doctor makes a mistake does not necessarily mean the doctor has committed medical malpractice.

An error of judgment may be evidence of negligence but an error in judgment is not, by itself, negligent. A plaintiff must show that the error in judgment fell below the standard expected of a reasonably competent doctor and that the error in judgment caused the patient’s injury.

Continue reading "Doctor’s “Error in Judgment” is not Negligence" »

Nurse Negligent

In a decision released last week, Justice Tausendfreund has ruled that a nurse at St. Joseph's Children’s Hospital was negligent and that the nurse’s negligence caused catastrophic brain injuries to a baby, Danny Vuong.

Danny’s mother, Ms. Giang was admitted to St. Joseph’s Hospital on June 12, 2991. Her pregnancy had been normal and uneventful.

Fetal Heart Monitor Results Not Normal

Two nurses were assigned to Ms. Giang to monitor the baby’s fetal heart rate. They used an electronic fetal heart monitor (EFM) to monitor the baby’s heart rate.

When the nurse checked the heart monitor it showed a range of 170 beats per minute, a reading that is outside the normal range. The nurse assumed that she had simply heard a normal acceleration of the baby’s heart rate. However, the nurse also recognized that the increased heart rate could also be a sign of tachycardia, an abnormal elevation in the heart rate which is a sign of fetal distress.

Didn't Check Again

But she didn't check the baby's heart rate again to see if it had returned to normal! 20 Minute Delay

Unfortunately, the nurse did not return to Ms. Giang to conduct another fetal heart rate monitor until 20 minutes later. By that time, the baby’s heart rate had dropped precipitously and an emergency C-section was performed.

The surgeon who performed the c-section found that the umbilical cord had been wrapped around Danny’s neck. Danny was born suffering from the results of acute hypoxia-ischemia resulting in severe brain damage.

Justice Tausendfreund ruled that:

“Had Danny been born 10 minutes earlier he would have been at great risk for some neurological injury, but he would not have sustained the depth or extent of injury he did.

“I find that had Danny been born 10 minutes earlier, it would have significantly and materially reduced both the extent and nature of the injury to Danny’s brain and would have significantly and materially reduced the degree of functional impairment.”

Nurse Failed to Meet Standard of Care

Justice Tausendfreund ruled that the nurse had failed to meet the standard of care expected of her. Had she acted in accordance with the standard of care and continued to monitor the baby’s heart rate to confirm her assumptions she would have realized that the baby was suffering a medical emergency. As a result, the Judge ruled that the nurse’s negligence was the cause of baby Danny’s catastrophic brain injuries.

Causation in Medical Malpractice Claims

This case shows how a difference of just minutes can mean the difference between life and death. The difference between having a healthy baby and a baby who will live his life severely debilitated by brain injury.

The vast majority of medical malpractice claims fail because the victim is not able to prove that the the health provider's negligence caused or materially contributed to their injury.

Continue reading "Nurse's Negligence Caused Child’s Brain Injury" »

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!" »

Nurses Duty to Ensure Appropriate Care

A recent decision from Ontario has found that nurses have a duty to ensure patients receive appropriate care from a responsible physician when faced with a medical emergency.

The court found that the duty to ensure that the patient is seen by a appropriate physician exists even when the patient has already been seen by a resident physician.

Failed to Meet Standard of Care

In Milne v. St. Joseph’s Health Centre, Justice Morissette found that an experienced obstetrical nurse and an obstetrical resident both failed to meet the standard of care expected of a reasonable nurse and physician during the birth of Anne Louise Milne’s son Jessy.

Jessy suffered catastrophic brain damage due to a premature separation of Ms. Milne's placenta from her uterus, resulting in internal bleeding. Ms. Milne was admitted to the delivery unit of the St. Joseph’s Health Centre at 1:20 PM on August 18, 1997.

Nurse Suspected Medical Emergency

The obstetric nurse who took her vital signs and applied the fetal heart rate monitor strongly suspected that Ms. Milne had suffered a placental abruption. The nurse testified at trial that she understand that a placental abruption was a medical emergency and might require a cesarean section in order to prevent brain damage due to the lack of oxygen to the fetus.

At 2:00 PM Ms. Milne was assessed by an obstetric resident who performed an ultrasound which showed that the fetus was not breathing or moving.

Doctor Suspected Medical Emergency

The resident physician also suspected a placental abruption but neither one of them discussed their concerns with the other nor did they consider an appropriate course of action.

No One Talked to Doctor in Charge

The nurse testified that she expected the resident physician to contact the attending obstetrician in charge of Ms. Milne to determine her appropriate treatment.

Approximately 35 minutes after the resident examined Ms. Milne the obstetric nurse finally asked another physician to assess Ms. Milne. The physician immediately diagnosed Ms. Milne’s condition and ordered a emergency cesarean section.

Justice Morissette found that delivering baby Jessy even 10 minutes earlier would have prevented his severe brain damage.

Lack of Communication Can Have Catastrophic Consequences

In many hospitals nurses and physicians work in what is called a “team environment”. This case emphasizes the need for communication between team members. It also emphasizes the importance of coming up with a proposed plan of treatment with every patient.

Continue reading "Nurses Have a Duty to Ensure Doctors Meet the Standard of Care" »

One of the reasons why medical malpractice claims are so complicated, and so expensive, is because they require the testimony of medical experts, usually several medical experts to testify about both legal issues such as:

1. The standard of care;
2. Whether there was a breach of the standard of care;
3. Whether the breach resulted in the patient’s injuries;
4. What is the nature of the plaintiff’s injuries?

My book, The Consumer’s Guide to Medical Malpractice Claims in Canada, discusses the use of medical experts in medical malpractice claims and goes into detail to explain why you cannot win a medical malpractice case without solid medical experts on your side.

A recent case in Bridgewater, Nova Scotia simply proves my point.

In Vaughn v. Hayden, Justice McDougall of the Nova Scotia Supreme Court granted the defendant’s motion to strike out the plaintiff’s statement of claim.

Defendants Apply to Strike Out Claim
The defendants made a motion for Summary Judgment. Basically, the defendants asked the court to dismiss the plaintiff’s claim on the basis that there was not genuine issue for trial.

Defendant Doctor Had Expert Reports

The defendant provided the court with expert medical opinions from 2 doctors who testified that Dr Hayden, did not breach the standard of care and that any injuries that the plaintiff Mr. Vaughn may have suffered were not caused by negligence on the part of Dr. Hayden.

Plaintiff Didn't Have Any Expert Evidence

The plaintiff filed his own affidavit opposing the motion.

Justice McDougall struck out the plaintiff’s claim and stated:

“Furthermore, it would be a rare medical malpractice case that would have any real chance of success without some kind of supporting expert evidence establishing the breach of the standard of care and the causal connection between the negligent treatment and the resulting harms suffered”

I have been representing victims of medical malpractice for 19 years. It has always been my practice to recommend that a plaintiff get a supporting medical-legal opinion from a recognized expert confirming that there are solid grounds for a medical malpractice claim before filing a medical malpractice lawsuit.

This case just proves my point. You can't win a medical malpractice claim without expert evidence and you better know if the experts support your claim before you file a lawsuit.

Continue reading "Medical Malpractice Claim Struck Out for Lack of Expert Evidence" »

Court Approves Multi-Million Dollar Settlement

The Supreme Court of Nova Scotia has approved a settlement in a medical malpractice case awarding 4.5 million dollars in compensation to a child who suffered cerebral palsy as a result of injuries suffered during his birth.

Very Complex Claim

In the decision of Saulnier v. Tynski et. al, Justice Patrick Duncan said in his decision:

“Let me say that this obviously was a very complex medical malpractice claim.”

Payments for Life
Justice Duncan approved the settlement of 4.5 million dollars. 56% of the funds are being placed in a structured settlement to provide periodic payments to Jacob Saulnier for the rest of his life.

Parents Compensated for Extraordinary Services

The court also approved payment of $125,000.00 each for the child’s parents to recognize the burden that has been placed on them for the extraordinary services the now have to provide to their child to care for him as a result of his injuries. Justice Duncan said:

“I accept that these parents have already undergone a lot of stress and that they probably will continue to do so in trying to provide for their son, and that the settlement should do what it can accomplish in terms of trying to minimize the additional stressors.”

Medical malpractice cases are among the most complicated, time consuming, and risky kinds of personal injury litigation.

There is tremendous debate within the medical and scientific community as to the causes of cerebral palsy. Establishing causation in a medical malpractice claim is often a huge, sometimes insurmountable, hurtle.

No amount of money will ever change what happened to young Jacob Saulnier. However, this is a tremendous result in what was a challenging and complicated case.

Continue reading "$4.5 Million Award for Child Who Suffered Cerebral Palsy Due to Birth Trauma" »

Continuing Treatment

Continuing treatment is a term that lawyers use to describe the length of time that you have continued to receive treatment from your doctor. In many cases, after a patient receives negligent treatment that causes an injury they continue to see their doctor or be treated in the hospital for the effects of the negligence medical care. Why is this important?

Statute of Limitations

Every province has a “Statute of Limitations” which is a time limit for filing certain kinds of claims. Generally, the time that you have to file a medical malpractice claim starts from the date the malpractice occurred.

Time Limit May Be Extended

However, the court may decide that the time to file your medical practice claim started to run, not from the date of the original malpractice, but from the last date that you received treatment from your doctor for the medical condition or complaint that was caused by the medical malpractice.

For example, if a surgeon perforates your bowel during surgery on January 1 and you suffer complications and have to undergo another surgical procedure on March 1 the court may consider that the time limit for filing a claim started to run not on January 1 but on March 1 because you were receiving continuing treatment for the medical problem caused by the negligence.

Claim May Be Barred

Once the statute of limitation runs out your right to file a medical malpractice can be barred forever. That is why it is very important for your medical malpractice lawyer to investigate the specifics timing of all of your doctor or hospital visits. This type of detailed investigation will help establish whether there was “continuing treatment” that may extend the time limit of filing your medical malpractice claim.

Continue reading "What Is “Continuing Treatment” And Why Is It Important To My Medical Malpractice Claim? " »

ACOG Issues New Practice Guidelines

In the July 2009 issue of Obstetrics and Gynecology, the American College of Obstetricians and Gynecologists (ACOG) issued practice bulletin No. 106: Intrapartum Fetal Heart Rate Monitoring.

The new bulletin is the most recent statement from the College on interpretation of fetal heart rate tracings and management of labour.

Electronic Fetal Monitoring (EFM) has grown dramatically. In 1980 it was used on 45% of pregnant women to more than 85% of pregnant women in 2002. However, one of the authors of the study, Dr. George Macones, has stated that:

“Although EFM is the most common obstetric procedure today, unfortunately it hasn’t reduced perinatal mortality or the risk of cerebral palsy.”

Unfortunately, for those of us who represent children who have been injured during birth, it appears that the bulletin has been drafted to be even more protective of the practice of physicians than past clinical guidelines on the same subject.

While the data for the study may have been collected for the purpose of providing clinical guidance to obstetricians in managing labour, I have no doubt that the guidelines will be used in future medical malpractice claims to establish the standard of care for how doctors should interpret and react to different fetal tracings.

The revised guidelines have created a 3-tier classification system for EFM tracings:

Category 1 tracings are classified "normal" and do not require specific intervention.

Category 2 tracings are classified "indeterminate". They require further investigation and surveillance.

Category 3 tracings are classified "abnormal" and require immediate intervention. For example, providing oxygen to the mother, changing her position, stopping labor stimulation, treating maternal hypotension, or initiating prompt delivery if the tracings do not return to normal.

The guidelines contain a number of clinical recommendations including the following:

The false-positive rate of EFM for predicting cerebral palsy exceeds 99%.

The use of EFM is linked to higher rates of both vacuum and forceps operative vaginal delivery, as well as of cesarean delivery for abnormal FHR patterns and/or acidosis.

Recurrent variable decelerations on the FHR tracing should lead to consideration of amnioinfusion to relieve umbilical cord compression.

One of the most controversial statements in the study is that:

"Re-interpretation of the FHR tracing may not reliable; especially once the neonatal outcome is known.”

In other words, the guidelines suggest that the medical opinions of experts who have been retained to help injured plaintiffs shouldn’t be accepted because their evidence "may not be reliable".

The Guidelines fail to point out that the opposite is also true: re-interpretation of tracing may be reliable. It depends on the facts of each particular case.

Simply put, the guidelines suggest that medical experts are not entitled to “second guess” the opinion of the doctor in charge of the delivery.

The plaintiff in a medical malpractice claim bears the burden of proof. The plaintiff must provide expert evidence to establish that the defendant doctor(s) were in fact negligent!

These guidelines appear to be a transparent attempt to limit the evidence of experts who are willing to testify on behalf of plaintiffs.

It remains to be seen what weight, if any, the courts place on the guidelines.

Continue reading "Birth Injuries and Fetal Heart Rate Monitoring: New Guidelines Make it Harder to Sue?" »

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.