Halifax Medical Malpractice Lawyer Blog

Last night I was invited to be a guest speaker University of King's College Media and the Law course.

As a personal injury lawyer in Halifax, my practice involves representing victims of childhood sexual abuse, medical malpractice claims and catastrophic injury claims, but I have also had the good fortune of assisting clients in some groundbreaking claims. There was a good discussion about why these types of claims are of interest to the public.

My presentation involved a review of the ethical rules that govern when lawyers can (or should) talk to the media, tips for budding journalists on how to develop better relationships with lawyers, and finally a review of some of the cases I have been involved in that have been in the news.

I can candidly say it was one of the more enjoyable evenings I have had in a long time. The class was engaged and there were lot's of probing, relevant questions (as you would expect from journalism students).

I look forward to the opportunity to meet next year's class.

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" »

Use of Facebook in Litigation Increasing

I’ve posted before about how defence counsel in personal injury claims have routinely requesting disclosure of plaintiff’s Facebook pages, Twitter accounts, and otheon linene social media platforms. See for example:

Court Orders Lawyer to Mislead Client to get Access to Facebook - Sparks v. Dubé

Insurers May Be Using Facebook to Underwrite Policies

Social Networking and Personal Injury Claims

Courts across Canada have shown they are willing to order production of informaon linerom online social media accounts if defendants can prove the relevance of the material.

No Fishing

However, a recent case in B.C. provides some helpful direction regarding the limits to these types of intrusive requests by defence counsel.

In Dosanjh v. LeBlanc and St. Paul’s Hospital the plaintiff sued her doctors and nursing staff at St. Paul’s Hospital for injuries she claimed to have suffered during open heart surgery.

Ms. Dosanjh suffered a stroke during surgery that left her with significant cognitive and physical disabilities.

Counsel for the hospital filed a motion in the Supreme Court of British Columbia requesting that the plaintiff produce copies of her Facebook and Twitter accounts. The hospital’s lawyers said that the information in the accounts was relevant because the plaintiff had put her health, enjoyment of life and employability at issue in the trial.

The court dismissed the defendant’s motion stating that it was too broad and lacked focus. The judge hearing the motion described the request as a “classic fishing expedition”.

What Does it Mean?

As I have pointed out before, Defendants have been aggressively searching out evidence on the web that they can use to defend plaintiff’s claims. This includes information published on line in any kind of public social networking site.

Plaintiffs in medical malpractice claims (in fact in any type of civil suit) should be aware that the information they are posting on line may be seen not only be their “friends” or “followers” but could end up being examined by lawyers, judges or jurors.

So remember: Caveat Amicum (friender beware).

This week Sidney Crosby returned to the ice after a ten month hiatus while he underwent rehabilitation for a severe concussion.

Crosby’s performance suggests that the rest and rehabilitation has served him well. He appears to be back in top form, one of the best in the NHL.

Sidney's Injury Was a Good Thing

Don't get me wrong. What happened to Sidney Crosby was terrible and not something I would wish on any athlete. But I do think what happened to Sidney has been good thing for amateur athletes. In fact it has been good thing for anyone who has suffered a minor traumatic brain injury.

Why?

Brain Injury in the News

Sidney Crosby is so famous; his injury has catapulted discussion of concussions and brain injury from the pages of medical journals to the front page of newspapers and to the lead story of mainstream television and radio news.

But don’t take my word for it. Take a look at this graph. It shows the increase, since 2004, in the number of online searches for the term “concussion”.

Sidney Crosby has always been a great ambassador for hockey and amateur sports. Now he has become an ambassador for brain injury awareness.

In fact, a recent CBC news story was titled Sidney Crosby’s Concussion a Teaching Tool.

Increased Awareness

If you Google “Sidney Crosby” and “concussion” you will get more than 850,000 results. Doing a similar search on the terms “Sidney Crosby” and “brain injury” yields 250,000 results. What this suggests to me is that hundreds of thousands of people around the world are finally realizing that a concussion is a brain injury!

That is good news for those of us that support brain injury survivors. Because you don't take steps to prevent something until you know it's dangerous.

The Sidney Crosby Effect?

When Oprah first started her television book club, any book Oprah read immediately became a best seller. This became known as “the Oprah effect”. Is it possible that Sidney Crosby’s concussion will have the same effect for brain injury awareness?

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

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

Loss of Chance

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

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

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

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

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

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

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

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

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

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

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

Gilmore J. concluded in paragraph 100:

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

What’s Substantial?

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

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

What Are “Excellent” Odds?

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

Cancer Survival Rates Different

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

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

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

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

“Excellent” Depends on Point of View

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

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

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

50% or Better

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

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

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

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

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

I read an interesting decision out of Alberta recently, Gilberds v. Sobey that deals with informed consent to medical treatment and whether statistical information should be given to patients to help them determine if they will undergo treatment.

The case is interesting (at least to those of us doing medical malpractice litigation) because it also touches on the issues of what medical malpractice claimants need to prove to win their claims and the standard of care in medical malpractice claims.

Justice Ross pointed out the importance of statistical evidence at paragraph 81 of her decision:

I agree with Ferrier J. that effective communication of treatment risks requires some information on the probability of a particular result: Matuzich v. Lieberman. The degree of probability of a risk is obviously relevant to reasonable patients considering whether they want to undergo treatment; indeed the degree of probability is one of the factors that qualifies a risk as material.

I go into more detail about the facts of the decision and it's importance to medical malpractice claims on my Atlantic Canada Personal Injury Lawyer Blog.

What Do You Think?

Would you rather have your doctor explain the risks of a medical procedure with statistics? Or would you rather the doctor just tell you about "possible" and "probable" risks? Let me know by posting a comment, either here or on the Atlantic Canada Personal Injury Lawyer Blog.

A major study conducted by the Canadian Medical Protective Association (CMPA) has identified ten key areas that can help improve patient safety.

Diagnostic testing is a critical part of modern medical care. Conducting appropriate tests in a timely fashion and reporting results of testing is key to ensuring appropriate diagnosis and treatment.

Miscommunication a Risk to Patients

In today’s health care system patients may be treated, and diagnostic tests ordered, by a variety of physicians, nurses, and other health care specialists. The risks associated with miscommunication or inadequate follow up increases as the number of care providers increases and as time pressures on medical professionals increase.

The CMPA reviewed legal claims over a four year period (between 2006 and 2010) where the communication of medical and diagnostic imaging tests were alleged to have contributed to a delayed diagnosis or misdiagnosis.

No Follow Up

Failure to follow up on test results or diagnostic imaging reports was the most frequent error identified during the review.

The CMPA identified a number of problems including:

1. No follow up;
2. A delay in follow up; or
3. Inadequate systems in place to ensure appropriate follow up.

Lack of Communication Can Be Deadly

For example in one case we represented the family of a man who died from sepsis after bowel surgery. Doctors determined that the patient was suffering from an infection after the surgery and prescribed antibiotics to combat the infection.

Lab tests showed the bacteria that was the source of the infection was resistant to the antibiotics that had been prescribed. In other words, the antibiotics were not effective.

The doctor claimed he wasn't aware that the antibiotics were not working because the lab results had never been communicated to him.

The patient died and we filed a claim on behalf of his surviving wife and young children.

Doctor Responsible for Follow Up

In Canada the courts have consistently held that a physician who orders a particular diagnostic test is responsible for following up on the results of the test in a timely manner.

The doctor must be satisfied that appropriate systems are in place in the physician’s office, the hospital or the laboratory to ensure test results are communicated to the ordering doctor in a timely manner.

Communication with Patients

The communication system must also ensure that appropriate steps are taken to report test results to patients and arrange for a necessary follow up care.

Unusual Results are Important

Finally, the system must ensure that unusual or clinically significant results are followed up on in a timely manner.

Key Safety Recommendations

The CMPA report contains six key recommendations that could significantly improve patient safety.

1. Create A Culture Of Patient Safety : CMPA recommends all staff be encouraged to identify and follow up on diagnostic test results. The most preventable problem is one that staff is aware of but doesn’t tell anyone about.

2. K.I.S.S.: Systems should be as simple as possible. CMPA encourages the use of tracking systems and check lists. I’ve posted in the past about studies that have found that surgical checklists dramatically improve patient safety: Surgical Checklists Save Lives: Help Prevent Medical Malpractice Claims

3. Use Technology: CMPA recommends doctors adopt technology or software that automatically reminds doctors to follow up on test results and alerts them when there has been no response. Of course no system, computerized or otherwise, can be effective unless it is actually used.

4. Prioritize: CMPA recommends that test results be prioritized as:

1. Urgent;
2. Critical;
3. Action needed; and
4. Pending results.

5. Talk to Patients: Keeping patients actively engaged in their health care can improve their safety. If patients are told why they are receiving certain tests and how long they should have to reasonably wait for the results it helps patients understand the importance of the test results for their health care and encourages them to follow up with their doctor if they haven’t received the test results in a timely manner.

6. Don’t Be An Ostrich: Keeping your head in the sand and assuming“no news is good news” is dangerous. Assuming that “someone” will notify you if test results require follow up increases patient risk.

Continue reading "Effective Management of Test Results Improves Patient’s Safety" »

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.

Misdiagnosis Leads to Amputation

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

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

Patient Suspected an Infection

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

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

Doctor Wanted to Wait

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

Failed Attempts

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

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

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

Justice Dennis Thomas stated:

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

Prompt Treatment Would Have Limited Injuries

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

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

Prompt and Effective Treatment Critical

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

Differential Diagnosis Method

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

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

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

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

More Information

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

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

The British Columbia Court of Appeal released its reasons last week in the case of Ediger v. Johnston.

The Facts

Cassidy Ediger suffered an acute and severe hypoxia-ischemic encephalopathy (HIE) about 20 minutes before her birth. Her injury was caused by a compression of her umbilical cord which cut off oxygen from the placenta to her brain. The asphyxia caused a deceleration in her fetal heart rate which lasted until Cassidy was delivered by emergency caesarean section.

Cassidy’s injuries are catastrophic and irreversible and will significantly shorten her life expectancy.

Cassidy’s mother, Caroline Ediger, filed a medical malpractice claim against the obstetrician who delivered Cassidy, Dr. William Johnston.

At trial, the judge found Dr. Johnston did not have a surgical team to be “immediately available” before the delivery started and that he failed to obtain the mother’s informed consent to the procedure.

Failed to Explain

The trial judge found Dr. Johnston should have advised Cassidy’s mother of the benefits and risks of attempting a delivery by using forceps and the risks and benefits of proceeding by caesarean section.

Breached Standard of Care

The judge concluded Johnston breached the standard of care (was negligent) because he failed to have an anesthesiologist “immediately available” before attempting a mid-level forceps delivery, and in failing to obtain Ms. Ediger’s informed consent to the procedure.

The “immediately available” standard of care was based upon guidelines for forceps delivery published by the Society of Obstetricians and Gynecologists Canada.

Causation

After finding Dr. Johnston failed to meet the standard of care, the trial judge turned to the issue of causation. The trial judge addressed this issue by noting: “the plaintiff cannot succeed unless she establishes that Dr. Johnston’s failure to meet the standard of care caused Cassidy’s injuries.”

Cord Compression

All of the medical experts that testified at trial agreed that cord compression likely caused the fetal bradycardia that lead to Cassidy’s acute hypoxia-ischemic injury. The question for trial was whether Dr. Johnston’s attempted forceps delivery caused the cord compression.

A Matter of Seconds

The medical experts who testified agreed that fetal bradycardia would occur within seconds of cord compression, no matter what the cause. Therefore, it was important to determine whether the bradycardia occurred during or in close proximity to Dr. Johnston’s application of the forceps.

The defendants relied upon the evidence of Dr. Johnston and another physician present during the delivery to suggest that there was a gap of several minutes after the use of the forceps and the onset of Cassidy’s bradycardia.

The plaintiff relied upon nurses’ notes to argue that Cassidy’s fetal heart rate fell to 60 beats per minute (dangerously low) immediately after Dr. Johnston removed the forceps.

The trial judge concluded that the most reliable evidence in timing of the fetal bradycardia came from another doctor who was present in the operating room, Dr. LeGresley and held that the onset of bradycardia occurred within 1-2 minutes after Dr. Johnston abandoned his attempt at forceps delivery.

Couldn't Establish Cause With Precision

The trial judge decided that the evidence could not establish with precision the mechanical process by which Cassidy’s umbilical cord was compressed so as to cause her bradycardia.
The trial judge was not able to determine the precise mechanism that caused the cord compression.

Close Proximity

However, the trial judge concluded that Dr. Johnston’s actions caused Cassidy’s injuries because of the "close proximity" and time between his attempted forceps delivery and the onset of the fetal bradycardia.

Having concluded that the cord compression and resulting bradycardia were caused by Dr. Johnston’s forceps attempt the judge considered whether Dr. Johnston breach of the “immediately available” standard of care caused Cassidy’s injuries.

Reasonable Patient

The judge found that a reasonable patient in Ms. Ediger’s circumstances would have wanted to be informed of the risks associated with a caesarean section and would have chosen to wait until an anesthesiologist was available.

The British Columbia Court of Appeal conducted an exhaustive review of the authorities with respect to the law of causation in Canada. The court concluded:

[77] More recently, in Resurfice Corp. v. Hanke, 2007 SCC 7 (CanLII), 2007 SCC 7, [2007] 1 S.C.R. 333, Chief Justice McLachlin, for the Court, explained the requirement of a substantial connection between the defendant’s negligent conduct and the plaintiff’s injuries in order to meet the burden of the “but for” test:

[23] The “but for” test recognizes that compensation for negligent conduct should only be made “where a substantial connection between the injury and the defendant’s conduct” is present. It ensures that a defendant will not be held liable for the plaintiff’s injuries where they “may very well be due to factors unconnected to the defendant and not the fault of anyone”: Snell v. Farrell, at p. 327, per Sopinka J. [Emphasis added.]

[78] In Resurface, the Court rejected the notion that the material contribution test could be a substitute for the “but for” test and reiterated the default test of cause-in-fact as set in Snell, Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458 at para. 14, Walker Estate v. York Finch General Hospital, 2001 SCC 23 (CanLII), [2001] 1 S.C.R. 647, 2001 SCC 23, at paras. 87-88, and Blackwater v. Plint, 2005 SCC 58 (CanLII), [2005] 3 S.C.R. 3, 2005 SCC 58 at para. 78 (para. 19). The Court restricted the material contribution test to those situations where it is impossible to determine which of the negligent acts of two or more defendants created an unreasonable risk of the type of injury that the plaintiff experienced (para. 27) or where the “but for” chain of causation is broken by the inability of the plaintiff to prove what a person in the causal chain would have done had the defendant not committed the negligent act or omission (para. 28).

[79] In Athey, the Court observed that “the courts have recognized that causation is established where the defendant’s negligence ‘materially contributed’ to the occurrence of the injury” (para. 15). However, the phrase “material contribution” in this statement from Athey is not synonymous with the “material contribution test” referred to in Resurface. The distinction between the two was explained by Mr. Justice Smith, for the majority, in Sam v. Wilson, 2007 BCCA 622 (CanLII), 2007 BCCA 622:

[109] “Material contribution”, as that phrase was used in Athey v. Leonati, is synonymous with “substantial connection”, as that phrase was used by McLachlin C.J.C. above in Resurfice Corp. v. Hanke. This causal yardstick should not be confused with the “material contribution test”. As McLachlin C.J.C. explained in Resurfice Corp. v. Hanke, at paras 24-29, the “material contribution test” applies as an exception to the “but for” test of causation when it is impossible for the plaintiff to prove that the defendant’s negligent conduct caused the plaintiff’s injury using the “but for” test, where it is clear that the defendant breached a duty of care owed the plaintiff thereby exposing the plaintiff to an unreasonable risk of injury, and where the plaintiff’s injury falls within the ambit of the risk.

[80] In this particular case, the material contribution test was not applicable because it was not impossible for the respondent to prove that the appellant’s negligent conduct caused Cassidy’s injuries. The “but for” test of causation required the respondent to establish, on a balance of probabilities, a substantial connection between the risk of harm caused by the appellant’s negligent acts (the breach of the “immediately available” standard of care and/or failure to obtain Mrs. Ediger’s informed consent) and the resulting injuries to the respondent. In other words, in order to succeed, the respondent had to demonstrate that Cassidy’s injuries fell within the type of risk to which Mrs. Ediger was exposed, i.e., the forceps procedure, and that the appellant’s negligent conduct was the cause-in-fact or a “real causa causans” of Cassidy’s injuries.

No Evidence of Alternatives

The Court of Appeal held that no evidence was lead at trial, nor any findings of facts made regarding what delay, if any, could have been avoided if Dr. Johnston had a surgical team “immediately available” or had he obtained Mr. Ediger’s informed consent.

The Court of Appeal stated:

“...absent evidence to support a finding of fact that, but for Dr. Johnston’s breaches of the standard of care, Cassidy would have been delivered earlier then she was and all or part of her injuries would have been prevented or diminished factual causation on the “but for” test was not established.”

The Court of Appeal’s decision concludes with paragraph 102 and 103 of their decision where they state:

“[102] Medical negligence cases, particularly those involving the delivery a child, can be challenging in many respects. One can only feel sympathy for the tragic consequences that Cassidy has suffered from the injuries she sustained in birth, and for the demanding responsibilities that her parents lovingly provide in meeting her daily challenges. However, the burden of proof in any tort action remains with the party who advances the claim. In my view, that burden was not met on the evidence in this case.

[103] Absent a causal connection between Dr. Johnston’s attempted forceps delivery and the cord compression with its attendant fetal bradycardia, the respondent’s action cannot succeed. In these circumstances, I am of the view that the appeal must be allowed and the action dismissed.”

Strict Test for Causation

The Ediger decision simply confirms that the courts have adopted a strict test with respect to proving causation in medical malpractice cases.

The less stringent “materially contributed” test espoused by the Supreme Court of Canada in the Athey v. Leonati decision will only be used in limited circumstances.

Simply put, this case confirms that medical malpractice cases remain complicated, risky and difficult to prove.

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