Halifax Medical Malpractice Lawyer Blog

Children Can Make Medical Decisions

A majority of the Supreme Court of Canada has ruled that children under the age of 16 who are capable of “mature, independent” judgment can make life or death decisions about their own medical treatment.

In A.C. v. Manitoba (Director of Child and Family Services) the court was asked to decide whether the Canadian Charter of Rights and Freedoms' guarantee of liberty, equality and religious freedom requires medical care providers to respect the decisions of children under the age of 16 to refuse medical treatment.

Opposed Medical Treatment on Religious Grounds

In 2006 the Manitoba courts issued an order authorizing doctors to provide blood transfusions to A.C., a 14 year old Jehovah’s Witness. A.C. (and her parents) opposed the transfusions on religious grounds.

The trial division ruled unanimously that it was in A.C.’s best interest to have the transfusions relying on the medical opinions of her physicians that her health and possibility her life would be jeopardized if she did not receive the transfusions.

Children Have a Say In Medical Treatment

The Supreme Court of Canada ruled that children under the age of 16, who demonstrate sufficient maturity, have a say in the medical treatments they undergo.

While the Supreme Court of Canada’s decision involved a challenge to Manitoba’s Child and Family Services Act the decision will have broader implications across Canada.

The courts ruling will not only impact child welfare cases but may have an effect on future medical malpractice claims involving injuries to children.

Do Minors have to Provide Informed Consent?

In order for a doctor to administer medical treatment to a patient, they must have the patient’s “informed consent” to provide the treatment. If the doctor fails to obtain the patient’s informed consent, then the medical treatment is an assault and injuries that the patient suffers as a result of the treatment (even if the doctor isn’t negligent) can result in a damage award for medical malpractice.

So what happens if a doctor relies on the consent provided by a teenager’s parents where the child objects to receiving the treatment? Has the physician received the proper informed consent to provide the treatment? Is the medical treatment an assault? Is a doctor entitled to rely on consent provided by a teenager who is still legally a minor under provincial legislation?

Children's Views Ought to Be Respected

Five judges on the Supreme Court appear to agree that, in the words of Madame Justice Abella:

“If, after a careful and sophisticated analysis of the young person’s ability to exercise mature, independent judgment, the court is persuaded that the necessary level of maturity exists, it seems to me necessarily to follow that the adolescent's views ought to be respected.”

I suspect the decision may have been more difficult if the parents had disagreed with their child's decision.

Informed Consent More Difficult to Prove?

Medical malpractice cases are complicated enough to begin with. Cases involving a lack of informed consent often boil down to a case of “he said, she said” where the patient argues that the doctor didn’t properly advise them of the risks of a procedure and the doctor claims that the risks were properly explained and informed consent was obtained.

As a result of the A.C. case, courts are now going to have to consider both the views of the child and the parents when administering medical treatment to “mature” minors.

What do you think? If you are a teenager, should a doctor get your permission before performing a medical procedure? At what age should ignore the parents views and seek the consent of the minor before performing a medical procedure?

Continue reading "“Mature” Children Can Refuse Medical Treatment: Supreme Court of Canada" »

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.

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

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

Two Simple Questions:

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

The first question you need to ask yourself is:

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

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

The second question you need to ask yourself is:

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

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

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

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

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

Medical Malpractice can happen in two ways:

1. Negligence is when your doctor causes an injury because he or she failed to meet the standard expected of a reasonably competent physician;

2. Assault and Battery happens when your doctor does not have your informed consent to perform the medical procedure that caused your injury.

Consent to Medical Treatment:

Everyone has a legal right to decided what can be done with his or her own body. Lawyers refer to this right as autonomy.

What that means, in plain language, is that your doctor needs your permission (the legal term is informed consent) before your doctor can treat you.

What is Informed Consent?:

You can only give valid permission if you are provided with all of the information necessary to make an informed decision about your proposed medical treatment.

For example, assume you have the following conversation with your doctor:

Doctor: “I want to perform surgery on your leg. Do I have your consent?”

Patient: “Um…why do you want to do the surgery?”

Doctor: “Because it will stop the pain in your leg. Do I have your consent?”

Patient: "You can do anything you want as long as it stops the pain!

Patients Just Want to Be Cured

Many patients are concerned about curing or fixing the problem, illness or pain that brought them to the doctor in the first place. So when their doctor tells them that the proposed medical treatment will cure the problem, many patients simply agree without asking further questions.

What are the Consequences?

However, in order to give proper informed consent you must be able to understand the reasonable and foreseeable consequences of giving your permission, or not giving your permission, for the medical procedure.

What Shoud your Doctor Tell You?

It is generally accepted that in order to provide proper permission for medical treatment, your doctor must explain:

• The nature of the proposed medical procedure;

• The reasonable alternatives to the proposed medical procedure; and

• The relevant risks, benefits, and uncertainties related to each alternative.

How Do You Give Permission?

Your permission or consent may be expressed in words or implied by your actions. For example, when you are undergoing a surgical procedure your doctor will usually get you to sign a consent form as part of the consent process to confirm your permission to perform the medical procedure.

No Permission = Assault

Any medical procedure that is performed without proper informed consent is considered to be an assault. The doctor who performed the medical procedure will be responsible for any injury suffered by the patient in the course of the medical procedure.

He Said - She Said

Unfortunately, it is often difficult to win medical malpractice cases involving allegations of informed consent. Often the question of whether the risks were properly explained to the patient boils down to the doctor’s word against the patient.

Ask Questons - Make Notes!

Therefore, it is important to document the consent process by asking lots of questions and making notes of any discussions you have with your doctor before you undergo a medical procedure. Particularly, any discussion you have with your doctor about the risks, benefits and alternatives of the proposed medical procedure.

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Continue reading "What Does Informed Consent Have To Do With My Nova Scotia Medical Malpractice Claim?" »

Can you believe this?!

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

No signature-No medical care

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

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

Doctors don't like online reviews

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

Blackmail?

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

Can you believe this?!

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

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

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

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

What about the Hippocratic Oath?

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

What Happened to Freedom of Speech?

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

So what do you think?

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

Rate MD's

Doctor Reviews Online

My Doc Hub

Angies List

Related posts:

You Can File a Complaint About Your Doctor!

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

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