January 9, 2014

How Long is Too Long? The 30 Minute C-Section Rule: Ediger (Guardian Ad Litem) v. Johnston

This article is an excerpt from a paper I presented at the national Birth Trauma Litigation conference in Toronto. The paper considers the implications of the Supreme Court of Canada's decision in Ediger (Guardian Ad Litem) v. Johnston.

Eidger involved (among other things) allegations that the defendant failed to meet the appropriate standard of care in not performing a timely C- section.

The arguments in Ediger with respect to the standard of care required for emergency caesarean section are similar to those made more than ten years ago in Commisso v. North York Branson Hospital.

In Commisso, the attending obstetrician made the decision to proceed with an emergency caesarean section after a failed, mid-forceps trial. The time elapsed between the failed forceps attempt and the actual delivery of the baby was 17 minutes.

The plaintiffs argued the infant could have been delivered more quickly if the mid-forceps trial had been conducted in OR with a double set-up. The plaintiffs relied upon scientific literature that established permanent brain damage results from asphyxia lasting 10 minutes or more.

10 Minute Standard?

The plaintiffs claimed therefore, that any reasonable standard of care had to ensure that delivery of the baby could take place within the ten-minute time frame before permanent damage was certain.

In Commisso, the Trial Judge rejected the plaintiffs’ argument of a double set-up standard and refused to recognize a ten minute standard for emergency c-sections. Instead, the Ontario Court of Appeal stated that the appropriate standard of care as follows:

“Where a fetus is at risk … the doctor must move as expeditiously as possible to deliver the baby, having due regard for the safety of both patients—baby and mother.”

Ediger (Guardian Ad Litem) v. Johnston

One of the issues discussed by the Supreme Court of Canada in Ediger is whether the trial judge erred by concluded that the defendant, Dr. Johnston, failed to arrange for an “immediately available” surgical back-up.

The Plaintiffs argued that before proceeding with a mid-level rotational forceps delivery, the standard of care required that the procedure be undertaken in an operating room with a surgical team standing-by in the event that the forceps procedure was unsuccessful (“double set-up”). This would allow full delivery within 2 to 5 minutes of a failed forceps attempt. The trial judge specifically rejected this standard.

In the alternative, the plaintiffs argued Johnston failed to meet the standard of care by not ensuring that a surgical team was “immediately available” in the event of an emergency caesarean section was required. This standard was consistent with the guidelines of the Society of Obstetricians and Gynaecologists of Canada.

30 Minute Standard?

The defendant Johnston argued the standard of care was met by the so called "thirty-minute rule" which required a back-up surgical team to be available within 30 minutes of the decision to proceed with an emergency C-section.

Johnston argued that the standard of care required that an anesthesiologist be standing by (immediately available), but claimed that even if an operative team had been standing by in this particular situation, the plaintiff’s injuries could not have been prevented.

Standard Must be Responsive to Risk

It is well established that the degree of care required is commensurate with the potential danger to the patient. See for example Badger v. Surkan, a decision of the Saskatchewan Court of Appeal.

The Supreme Court of Canada in Ediger clearly stated the standard of care must be responsive to the risk in question and the potential harm arising from it.

The Supreme Court soundly rejected Johnston’s circular standard of care argument, finding the defendant was arguing for a standard of care that could never prevent the harm it was supposed to guard against.

“The problem with the standard of care, as interpreted by Dr. Johnston, is that it would be unresponsive to the risk in question and potential harm arising from it. … Dr. Johnston’s interpretation of “immediately available” standard of care would mean that the attending physician would never be liable for breaching the standard where fetal bradycardia results and leads to debilitating injury.”

The Supreme Court of Canada went on to say:

“… We have no difficulty concluding that the trial judge contemplated a standard of care that would have been responsive to the recognized risk of fetal bradycardia associated with mid-level forceps deliveries.”

The Supreme Court referred to “the undisputed evidence” that a baby begins to suffer injury approximately 10 minutes from the onset of bradycardia.

The Supreme Court of Canada stated at paragraph 53 of its decision:

“Dr. Johnston was required, before he initiated the forceps procedure, to take reasonable precautions that would have been responsive to the recognized risk of bradycardia and the injury that results if bradycardia persists for more than 10 minutes. Because it is undisputed that Dr. Johnston failed to take these precautions, which would have resulted in a faster delivery and likely prevented injury from bradycardia, the Trial Judge’s causation finding is sound.”

Is a New Standard Necessary?

I would suggest there is universal agreement in the scientific and medical communities that permanent brain damage results when fetal bradycardia lasts longer than 10 minutes.

The Supreme Court of Canada has stated that the standard of care must be responsive to the risk in question and the potential harm arising from it. Doctors are required to provide a reasonable standard of care.

Reasonable, in this context means care based on a reasonable response to the patients clinical circumstances.

Any reasonable person, physician or otherwise, would say that if you know fetal bradycardia will cause brain damage after more than 10 minutes, then any standard that advocates for a time to delivery longer than 10 minutes is not responsive to the risk of harm.

Physicians will argue that in every hospital in Canada the 30 minute "rule" from decision to incision is the current standard of care.

But remember, the Supreme Court of Canada said in Ter Neuzen v. Korn that if the standard of care itself is negligent, the court can reject the standard.

Is 10 Minutes the New Standard?

Isn’t the inevitable conclusion that, in circumstances where fetal bradycardia is likely, the standard of care requires the attending physician be in a position to proceed with an emergency caesarean section in 10 minutes or less?

Continue reading "How Long is Too Long? The 30 Minute C-Section Rule: Ediger (Guardian Ad Litem) v. Johnston" »

July 12, 2013

Diagnostic errors costly: Medical malpractice claims in Canada vs. United States

Misdiagnosis a common cause of malpractice claims

According to a recent study in the Journal BMJ Quality & Safety, diagnostic errors (medical misdiagnosis) are the biggest cause of medical malpractice payouts in the United States.

Researchers at Johns Hopkins University reviewed a 25 year data base of malpractice claims compiled by the NatioPractitioneroner Database. The database contained details of 350,706 medical malpractice claims between 1986 and 2010.The study also measured the frequency, severity and costs of different medical malpractice occurrences.

Errors in diagnosis (misdiagnosis) made up approximately 28.6 percent of paid medical claims. This was the highest of any of the areas of medical malpractice identified.

Other causes of malpractice

The study found that the following causes of injury occurred in the corresponding amounts:

• Other causes of injury related to treatment: 27.2%

• Surgery: 24.2%

• Obstetrics (birth injuries): 6.5%

• Medication errors: 5.3%

• Anesthesia: 3%

Deadly mistakes

Interestingly, and perhaps worryingly, the most frequent type of malpractice leading to death was also diagnostic error at 40.9 percent.

Breaking down the ‘diagnostic error’ label even further, the study found that failure to diagnose was the most common diagnostic error at 54.2 percent. The remainder was made up of delay in diagnosis, at 19.9 percent, and improper diagnosis, at 9.9 percent.

Diagnostic errors are more common than you think

As a medical malpractice lawyer in Nova Scotia, I can certainly say my experience reflects the findings from the study. While surgical and birth injuries are comparatively rare, I most frequently encounter patients who have suffered injuries as a result of diagnostic errors on the part of doctors and other medical professionals.

As I have previously posted, approximately 7.5 percent of Canadian patients experience some form of diagnostic error. In this post from a few years ago I provide some advice on Patient Safety: 10 Tips to Prevent Diagnostic Errors

Continue reading "Diagnostic errors costly: Medical malpractice claims in Canada vs. United States" »

May 29, 2013

Supreme Court of Canada Upholds Judge’s “Copycat” Decision (In Part): Cojocaru v. British Columbia Women’s Hospital and Health Centre

Last week, the Supreme Court of Canada (SCC) issued a decision in a complicated medical malpractice case that raised the issue of when it is appropriate for judges to incorporate reasons taken from the briefs of one of the parties.

Background

In Cojocaru v. British Columbia Women’s Hospital and Health Centre the mother, Monica Cojocaru had previously given birth by C-section. On the recommendation of her obstetrician, Dr. Yue, Ms. Cojocaru agreed to delivery of her baby, Eric Cojocaru, by “vaginal birth after Cesarean section”, otherwise known as VBAC.

During the labour, Ms. Cojocaru suffered a ruptured uterus (a known risk of VBAC) which restricted a supply of oxygen to her baby. The scar from the previous Cesarean section was the apparent reason for the uterine rupture. An emergency C-section had to be performed. However, Eric suffered brain damage causing cerebral palsy.

At trial, Eric and his mom brought a claim against the hospital, the nurses that were attending during the delivery, Dr. Yue, and the other physicians that treated mom during the delivery.
At trial, the nurses and doctors were found liable by the trial judge and the plaintiffs were awarded the sum of $ 4,000,000.00 in compensation.

Copycat decision

Although the judge rejected some of the plaintiffs’ submissions and discussed the legal issues and his conclusions in his own words, the trial judge’s reasons were copied almost entirely from the Plaintiffs’ written briefs.

The Defendants appealed on the basis the Judge’s plagiarism gave rise to an appearance of unfairness that merited overturning the judgment.

The British Columbia Court of Appeal agreed, and overturned the trial judge’s decision and sent it back for a new trial.

The parties appealed to the Supreme Court of Canada.

The unanimous decision of the Court was written by Chief Justice McLachlin.

Originality “desirable” but not required

McLachlin C.J. succinctly dealt with the main ground for the appeal:

“The main question on this appeal is whether a trial judge’s decision should be set aside because his reasons for judgment incorporated large portions of the plaintiffs’ submissions. For the reasons that follow, I conclude that while it is desirable that judges express their conclusions in their own words, incorporating substantial amounts of material from submissions or other legal sources into reasons for judgment does not, without more, permit the decision to be set aside.”

Longstanding practice

The court carefully examined the “long standing practice” in the courts in Canada, and the rest of the world, to incorporate portions of the written submissions made by the parties into written decisions.

The Court pointed out that judicial decisions can be set aside for a substantive legal error or a procedural error. A complaint that a judge’s decision is not sufficiently original, or has been plagiarized from a party’s brief is a procedural complaint. In other words, it does not go to the legal merits of the decision about whether the decision was reached in a procedurally manner.

The Court decided that copying, in whole or in part, submissions from various parties did not, in and of itself, constitute an error.

Cutting and Pasting raises concerns

However, the more a judge incorporates the unchanged written submissions of one party or another, the greater the concern that the judge has not independently and impartially reviewed the evidence and arguments.

The Court pointed out that:

“Judgments routinely incorporate phrases and paragraphs from a variety of sources, such as decided cases, legal treatises, pleadings, and arguments of the parties. … Often the sources are acknowledged, but often they are not.”

McLachlin C.J. stated, whether acknowledged or not, such passages are part of the judicial writing process and do not render the process procedurally unfair.

Independent assessment critical to judicial process

The greater concern is whether wholesale incorporation of a party’s written arguments suggest a Judge did not independently assess the facts and evidence.

In the case of the Cojocaru claim, the Supreme Court stated:

“Taking full account of the complexity of the case, and accepting that it would have been preferable for the trial judge to discuss the facts and issues in his own words, I cannot conclude that the trial judge failed to consider the issues and make an independent decision on them. On the contrary, the fact that he rejected some of the plaintiffs’ key submissions demonstrates that he considered the issues independently and impartially.”

“Better” not to copy

The quote went on to say:

“It would have been better if the reasons had not copied extensively from the plaintiffs’ submissions. However, to set aside the decision of the trial judge requires more. To rebut the presumption of judicial integrity, the defendants must establish that a reasonable person apprised of all the circumstances would conclude that the trial judge failed to consider and deal with the critical issues before him in an independent and impartial fashion. The defendants have not done so.” [Emphasis added]

Findings upheld

In the end, the SCC upheld the trial judge’s finding of liability against Dr. Yue, and ordered that Dr. Yue pay the full and entire amount of the award to the plaintiffs.

So, thirteen years after the birth of Eric Cojocaru, the boy, now a young man, finally achieves justice.

May 24, 2013

Appeal Court Upholds Jury Decision in Med Mal Trial: Goodwin v Olupona

Judge or Jury?

In most provinces in Canada, it is possible to have a civil case tried by judge alone or by judge and jury. I discussed this recently in an article on my Halifax Personal Injury Lawyer Blog, Do I have a right to a jury trial in personal injury claims?

The Nova Scotia Supreme Court recently stated in Anderson v. Cyr, a claim arising out of a motor vehicle accident:

“...there is a longstanding, traditional and substantive right of a party to a civil action in this province to a jury trial.”

Too complicated for a jury?

However, in the Anderson case, the court decided to strike out a request by the defendant to have the claim hear by judge and jury. Justice Wright decided that the combination of the large number of expert witnesses, the scientific and technical evidence to be submitted, the complicated damages issues and the length of the trial established “cogent” reasons to hold the trial in front of a judge alone.

That is not to say that juries are not capable of making a reasonable and fair decision in long trials with many experts that involve complicated medical and legal issues.

The Ontario Court of Appeal recently faced the question of whether or not they should overturn a jury’s decision in a complicated medical malpractice case: Goodwin v Olupona.

Facts

In the summer of 2002, Debra Goodwin gave birth to a twin boy and girl. Unlike his sister, Adam, the baby boy, was injured prior to birth and was subsequently diagnosed with spastic quadriplegia. Mr. and Mrs. Goodwin sued the health professionals and the hospital involved in Adam’s delivery.

Following a 32-day trial, and 8 days of deliberations, the jury found Nurse Burhanpurkar 75%liable and the hospital 25% liable for the injuries. The nurse and hospital appealed the jury’s decision.

The appellants argued the jury’s verdict was unreasonable in that it was not supported by the evidence and that the charge to the jury contained errors.

Court of Appeal

The Court of Appeal began their analysis by recognizing that a jury’s verdict will only be set aside if it is “so plainly unreasonable and unjust as to satisfy the court that no jury reviewing the evidence as a whole and acting judicially could have reached it.”

And that, “where there is some evidence to support the verdict, a jury will be accorded a high degree of deference.”

Expert required to prove standard of care?

The hospital argued that since there was no expert evidence with respect to the hospital’s standard of care, the jury had no basis to conclude the hospital was negligent. However, the Supreme Court of Canada had previously decided that it was open for a jury to find there was a breach of the standard of care without expert evidence (ter Neuzen v. Korn).

The Court of Appeal noted that whether expert evidence would be required turned on whether the nature of the issue could be decided on the basis of knowledge possessed by the jury, or on the other hand, if it required expert evidence because it went beyond the knowledge of the average juror.

Common sense

The Court of Appeal found that the juries finding that a hospital must provide staff and facilities capable of meeting the needs of patients is within the abilities of an average juror.

Seems like common sense right? If you are running a hospital you should ensure the hospital is properly staffed to meet the needs of the patients. Anyone need an expert to tell them that?

The Court of Appeal also rejected the Nurse’s argument that the jury had inadequate evidence to establish causation between her actions and the harm. The Court found that there was such evidence:

[75] In my view, there was evidence capable of supporting the jury’s findings of negligence and causation – that on a balance of probabilities but for Nurse Burhanpurkar’s failure to properly monitor the FHRs, for which the nurse and hospital bear a degree of responsibility, it was likely that Adam’s injury could have been avoided.

With respect to the charge to the jury the Court noted that an appellate court should not hold a trial judge’s charge to a jury to a standard of perfection. Rather the focus should be on whether or not the jury would have properly understood the law. The Appeal Court held that the jury was properly charged with respect to the “but for” test. They additionally found that none of the facts omitted by the trial judge were so important that their omission resulted in a substantial wrong. Finally, the Court concluded that the jury would have understood the law.
The Court of Appeal concluded by noting that the verdict of the jury was entitled to deference.

The appeal was dismissed and the respondents were awarded $40,000.00 in costs.

Common sense

This case is a perfect example of a jury exercising common sense in reaching it's decision and the Court of Appeal's ruling in this case simply reflects the fact that just because there may be complicated questions involved in a trial, not all of the answers are complicated.

Sometimes the answers are just common sense.

Here in Nova Scotia, parties to a lawsuit have a longstanding right to a jury trial and deference should paid to the ability of the average juror to hear the evidence and reach a decision that is based both on the evidence and on common sense.

May 10, 2013

Doctors negligent, but family loses medical malpractice claim: Mangal v. William Osler Health Centre

This recent decision from the Ontario Supreme Court highlights the difficulties faced by families who want to pursue a medical malpractice claim for the loss of a loved one.

Sharon Mangal was admitted to the William Olser Hospital on February 16, 2004 to give birth to her second child through caesarean section. Although she ultimately gave birth to a healthy baby girl, Sharon did not survive the procedure.

Sudesh Mangal, Sharon’s husband, along with Vincent and Sarina Mangal, her children, sued the hospital and the doctors alleging their negligence caused Sharon’s death.

The defendants in the case were the obstetricians, nurses, and the anesthesiologists who cared for Sharon Mangal during her labour and delivery, and William Osler Health Centre where the surgery took place. Marocco J. meticulously reviewed the evidence put forward against each of the defendants.

Standard of Care

In any medical malpractice claim, the plaintiff has the burden of proving what the expected standard of care was for each of the defendants and that one or more of the defendants breached the standard of care. In other words, the plaintiff has to prove that one or more of the defendants was negligent.

The plaintiffs have the burden of establishing that, but for the negligent act, the injury would not have occurred. Or in this case, Sharon’s family must prove that timely and appropriate treatment from the Hospital and the doctors and nurses involved would, more likely than not, have avoided the Sharon’s death.

The Medical Evidence

Marocco J. noted that Ms. Mangal’s pregnancy was not routine because she had developed high blood pressure and she had an enlarging fibroid in her uterus. This was important because while the existence of a fibroid was not unusual, it did create a higher risk of bleeding after delivery.

The delivery

The delivery proceeded without complications and after delivery of a healthy baby, Sharon Mangal appeared to be doing well. Dr. Chandran, the obstetrician, left directions with the nurse and returned to her office. The judge noted this was the standard practice.

Everything appeared to be fine with Ms. Mangal until about 11:30 a.m. when the nurse on duty noted some bleeding and that Ms. Mangal's blood pressure readings had dropped.

Justice Marocco determined that although there was a delay in acting on this information, the nurse did notify the relevant professional on or about noon – thereby satisfying the expected standard of care.

Dr. Girvitz saw Sharon at 12:35 p.m. He did not order coagulation studies when he saw Sharon because she was not bleeding at the time, and, according to the doctor, her blood was not watery. Dr. Girvitz thought Sharon was stable at the time of his assessment. The judge found that the failure to order a transfusion at this point did not fall below the standard of care.

Delay in reporting test results

Coagulation tests were eventually ordered. Marocco J. noted there was unacceptable delay in reporting these tests back to the Post-Anesthetic Care Unit, where Sharon was receiving treatment.

However, because coagulation factors were ordered before the test results arrived, the delay in the test results did not delay the administration of coagulation products.

22 minutes

Marocco also assessed the timing of the decision to return Sharon to the operating room. The judge concluded from the evidence that she should have been sent to the operating room around 1:30 p.m. She only arrived in the O.R. at 1:52 p.m.. This 22 minute delay constituted a breach of the standard of care.

Causation

The next step for the Ontario Court was to decide if the breach of the standard of care led to Sharon Mangal's death: “whether it is more likely than not that failing to decide to operate at 1:30 p.m. contributed to Ms. Mangal’s death”.

The judge determines that Sharon died as a result of Disseminated intravascular coagulation a clotting disorder commonly referred to as DIC that occurred around 2:07 p.m..

The evidence established that in the William Osler health Ceneter, once the decision to operate is made it takes approximately one hour and ten minutes (1:10) to actually commence surgery (the time from decision to incision).

Justice Marocco found that if the decision was made to operate on Sharon at 1:30 p.m., as would have been appropriate, she would not actually have been in surgery until 2:40 p.m.

Unfortunately, the evidence indicated that Sharon was in DIC at 2:07 p.m..

As a result, the court determined that despite the negligence in the care provided to Sharon Mangal, the failure to meet the standard of care did not cause her death.

Conclusion

The judge found there was conduct of the defendants that fell below the standard of care. However, the family was not able to prove that this conduct led to Sharon Mangal's death. Accordingly the case was dismissed.

This case is an example of the tough road that medical malpractice victims face. Even though Sharon’s family lost their wife/mother, and they could prove that the medical professionals fell short of their standard of care, they could not prove the deficiencies actually led to her death.

As a result, they were unable to recover anything to compensate them for their tremendous loss.


Continue reading "Doctors negligent, but family loses medical malpractice claim: Mangal v. William Osler Health Centre " »

April 29, 2013

Multi-million dollar award to child who suffered birth injury: Court examines compensation for "pain and suffering"

Child Claims Millions Due to Birth Injury

An Alberta court recently decided a case involving a child who was permanently injured during her birth. The case A.T.-B. v. Mah contained an interesting analysis of a variety of legal issues that typically arise in medical malpractice claims.

I thought the case was worth writing about because of the judge's views regarding the plaintiff's claim for compensation for "pain and suffering."

Background

The plaintiff (“A”) was born by caesarian section in 2001. She claimed the defendant, Dr. Mah, was negligent during the delivery process. During her birth, A's supply of oxygen was reduced, causing her permanent and severe brain injuries. According to all of the experts that testified, A will require 24 hour care and supervision on a minute-by-minute basis for the rest of her life.

She claimed damages of $15,000,000 for her loss of earning capacity, loss of the economic advantages of marriage, past and future cost of care, the expenses to manage her remaining life activities and damages for pain, suffering, and the loss of enjoyment of life.

What is pain worth in Canada?

What I found interesting was the Court’s assessment of the non-pecuniary damages (pain, suffering, and loss of enjoyment of life).

Canada has a "cap" on the amount of money injured plaintiffs are entitled to receive for pain and suffering. The rule comes from a 1978 case, Andrews v. Grand & Toy where the Supreme Court of Canada set the “cap” for the “worst case scenario” plaintiffs at $100,000.00.

This amount has been adjusted for inflation since then and now sits at approximately $328,000 in Nova Scotia (it is slightly different in each province since the cost of living in each province is different).

This amount is a stark contrast to the millions frequently awarded in the U.S.A. in states that do not have a cap on non-pecuniary damages.

Worst Case

The Plaintiff in A.T.-B. v. Mah sought to recover the maximum amount for non-pecuniary damages. The Defendant doctor argued that the child was not hurt badly enough to get the maximum award. Justice Graesser of the Alberta Court of Queens Bench recognized the problem with the “worst case scenario” situation and stated:

[543] In personal injury cases, looking for the worst harm in the worst circumstances to the most vulnerable victim is an unfortunate and hopeless analysis. Is it worse to be blind or deaf? Quadriplegic or without much cognitive functioning? Is it worse to be conscious of your loss, or oblivious to it? These arguments are more philosophical thought experiments than legal analysis, and therefore are a poor foundation on which to base useful jurisprudence. A key purpose of the law is to provide predictable results. Trying to rank different but terribly deleterious outcomes is too imprecise a basis for the calculation of damages.

Imprecise calculations?

Graesser J. interestingly compared the cap on damages in personal injury cases to the larger awards granted in defamation cases. Surely the pain and suffering of quadriplegics should warrant higher amounts than the damage to a reputation?

One case, Young v. Bella [2006], involved a graduate student who had her reputation severely damaged by a professor. The Supreme Court of Canada upheld a jury award of $430,000 in non-pecuniary damages. The SCC declines to consider whether the cap from Grand & Toy v. Teno should apply to non-pecuniary damage awards outside of the personal injury context.

Additionally, in Hill v. Church of Scientology the SCC decided a libel case between a Crown lawyer and the church. The SCC confirmed the total jury award of $1.6 million, including a $300,000.00 award for non-pecuniary damages.

Courts have also been willing to reject the cap in sexual abuse cases. In S.Y. v. F.G.C. the British Columbia Court of Appeal awarded non-pecuniary damages of $250,000. In making this decision the Court stated that the “cap” was not applicable to cases of intentional torts of a quasi-criminal nature.

Flawed reasoning?

So what are the reasons for capping non-pecuniary damages for personal injury cases?

In Teno v. Arnold and Andrews v. Grand & Toy the Supreme Court of Canada gave 4 reasons why they felt it necessary to cap damage claims:

1. The claim of a severely injured person for damages for non-pecuniary loss is virtually limitless. The fact that there is no objective yardstick for measuring such loss leaves this area open to inconsistent and widely extravagant awards. The concern I have with this point is that it ignores that fact that judges render their decisions after considering precedents established in other cases, so this fact alone should rein in "wildly extravagant" awards."
2. Damages for non-pecuniary losses are not really "compensatory" as no money can provide true restitution. Accordingly, such damages should be viewed as simply providing additional money to make life more endurable. I refer to this as the: “No amount of money can change what happened, so why should we try?” argument. In fact, I get that argument from defence counsel a lot in sexual abuse cases.
3. Under the law, the plaintiff will be fully compensated for future loss of income and future care costs. I call this the: “We’re paying your bills, what more do you want?” argument.
4. Exorbitant awards for general damages can lead to an excessive social burden (i.e. unaffordable increases in insurance and social costs). But there was no evidence provided on this issue at the original trial or at the court of appeal. It was raised for the first time by the Supreme Court of Canada and appears to have formed one of the foundations of their decision. On this issue the Court in Teno v. Arnold said (at page 333):

The very real and serious social burden of these exorbitant awards has been illustrated graphically in the United States in cases concerning medical malpractice. We have a right to fear a situation where none but the wealthy could own or drive automobiles because none but the wealthy could afford to pay the enormous insurance premiums which would be required by insurers to meet such exorbitant awards

The flaw in this reasoning is that Canada and the United States have very different systems when it comes to defending medical malpractice claims. In Canada, there is a Canadian Medical Protection Association which is responsible for defending most (95%) medical malpractice claims. I touched on the role that the CMPA plays in reducing the number of medical malpractice lawsuits in Canada in a previous article.

I don’t believe the comparison between Canada and the USA is relevant. Additionally, no evidence was provided about what effect, if any, not having a cap would have on auto insurance premiums.

This is the same argument that auto-insurers make in every province when they want caps on compensation inured auto accident victims. But close examination of the facts always shows that damage awards have almost nothing to do with increasing (or decreasing) auto insurance premiums.

In Andrews v. Grand & Toy Justice Dickson said (at page 265):

I would adopt as the appropriate award in the case of a young adult quadriplegic like Andrews the amount of $100,000. Save in exceptional circumstances, this should be regarded as an upper limit of non-pecuniary loss in cases of this nature. [Emphasis added]

The statement “save in exceptional circumstances” logically means there should be exceptions to the rule. The problem is that in the 35 years since the SCC trilogy not a single claim has succeeded in establishing "exceptional circumstances" sufficient to beat the SCC’s cap.

So the Court’s statement has ultimately been treated as a cap on the compensation that every single injured Canadian is entitled to receive for their injuries. In ter Neuzen v. Korn, Justice Sopinka went so far as to say that the $100,000 cap that the Supreme Court of Canada imposed as a "rule of law" was a legal limit for non-pecuniary damages in personal injury cases.

So much for exceptional circumstances.

Applying the cap to A.T.-B.

In assessing the pain and suffering of the plaintiff, the Court was presented with a number of cases involving plaintiffs who were similarly injured. The Plaintiff’s lawyers submitted cases involving plaintiffs who would have been similarly or less injured yet received the maximum award, while the Defendant’s lawyers submitted cases involving plaintiffs who were similarly of more injured yet did not receive the maximum award. With respect to this approach the Court stated:

[564] I do not intend in this decision to go through all of the cases submitted to me, distinguish or explain them, illustrate why A. is worse off than all of the other plaintiffs who received lesser awards, and why A. is entitled to the maximum available award. Suffice it to say that there are cases which obviously attract the maximum award by virtue of their injuries and the effect of their injuries, notwithstanding that there may be others who characterize someone else’s injuries as worse.

Ultimately the Court awards the maximum amount permitted under the Grand & Toy cap, adjusted for inflation.

I have to say that despite the fact that the court upheld what is (in my view) an unfair cap on compensation for non-pecuniary damages, Justice Graesser did exercise some common sense in the application of the rule. The approach eliminates the "worst case" argument and may make it easier for seriously injured victims to receive the maximum amount of compensation allowed under the Supreme Court of Canada cap.

Continue reading "Multi-million dollar award to child who suffered birth injury: Court examines compensation for "pain and suffering" " »

April 19, 2013

Is it possible to reverse infant brain injury caused by ischemia?

Recent findings out of the Oregon Health and Science University questions the existing understanding that decreased blood flow to a premature fetus’ brain necessarily kills its brain cells.

The Doctors at the University and its attached Children’s hospital have discovered that low blood flow to the developing brain does not necessarily result in permanent loss of brain cells, but rather that it prevents the cells’ abilities to mature. The implications for medical malpractice and birth injury layers is that it may be possible to reverse, or at least mitigate the damage caused by lack of oxygen.

Dr. Stephen Back, professor of pediatrics and neurology at the Oregon University is quoted as saying that the new findings mean:

“...we can focus greater attention on developing the right interventions, at the right time early in development, to promote neurons to more fully mature and reduce the often serious impact of preterm birth. We now have a much more hopeful scenario.”

Approximately 8-percent of births in Canada are pre-term births. There are a number of added risks when a child is born even a few weeks early. One of the major risks is hypoxia or ischemia.

Hypoxia and ischemia are potential causes of cerebral palsy. For more information about the causes of cerebral palsy you can read the article on our website: Birth Injuries Caused by Oxygen Deprivation

According to Statistics Canada there are over 42,000 Canadians living with cerebral palsy. Hopefully studies like those out of the Oregon University can help to bring those numbers down in the future.

It is still too early to say whether this research will lead to fewer cases of CP or help in the rehabilitation of brain injured infants. But the results are promising. Infants are 10 times more likely to be diagnosed with cerebral palsy than with cancer. Premature babies are especially vulnerable.

Continue reading "Is it possible to reverse infant brain injury caused by ischemia? " »

April 5, 2013

Hospital Medication Errors in Canada: Are patients safer in Canada?

Pat Malone, in my opinion, is one of the most capable medical malpractice lawyers in the United States. That is why I frequently read his D.C. medical malpractice blog.

I am currently representing the family of a young man who died because he received the wrong medication during his treatment in hospital. So an article Pat recently wrote on Hospital Medication Errors caught my attention.

Medication errors common

Pat notes that medical errors in hospitals are far more common than one would assume. He goes on to say that one of the reasons for this is that patients and their loved ones are usually not informed when a mistake occurs.

Patients kept in the dark

The article reports that researchers at Johns Hopkins University School of Medicine, generally considered the top medical school in the U.S. and one of the best in the world, analyzed 839,553 medical errors across the country. The medical errors were reported using MEDMARX, an anonymous, confidential, self-reporting system. The researchers determined that, when an error did occur, patients and their families were very rarely informed. In fact, the study determined that less than 2-percent of all of the errors were disclosed to the patients!

What about Canada?

We would like to believe that things would be different in Canada, wouldn’t we? Well, here in Canada the Canadian Medical Association’s Code of Ethics specifically states that medical professionals are obliged to take all reasonable to steps to prevent harm and, if harm should occur, doctors must disclose it to their patients.

Also, there is a Canadian Medication Incident Reporting and Prevention System (CMIRPS) which is a national program which collects, analyzes and shares information regarding medical accidents.

And the Disclosure Guidelines from the Patient Safety Institute of Canada specifically state:

“Whenever a patient suffers harm, whatever the reason, the healthcare provider or organization has an obligation to communicate to the patient about that harm and, if applicable, the event that led to the harm.”

The Guidelines go on to states that disclosure should occur if the mistake causes any harm or risk of harm. However, disclosure is discretionary if there is a near miss or close call. If the medical professional is uncertain about whether harm has occurred they recommend that disclosure take place.

Are Code of Ethics and Guidelines being followed?

The Code of Ethics and the Guidelines would suggest that Canadians would likely be informed if a mistake was made in their care or medication right? Not quite.

A 2007 report from the Canadian Medical Association Journal specifically notes that Canadian patients are:

“...no more likely to be informed about harmful errors than patients elsewhere.”

It is important that you express any concerns you have to you medical professionals. Remind them of any allergies you have suffered and of any other drugs you are receiving.


Want More Information?

John%20Head%20Shot%20%283%29.jpg
If you or a loved one have suffered injuries that you think may be due to medical malpractice you can buy a copy of my book: Health Scare - The Consumer’s Guide to Medical Malpractice Claims in Canada: Why 98% of Canadian Medical Malpractice Victims Never Receive a Penny in Compensation on Amazon.com. All proceeds from book sales go to charity.

Free Copy to Blog Readers

But supporters who read this blog can contact me through this blog or call us toll free in Atlantic Canada 1-877-423-2050 and we will send you a copy at no charge.

February 8, 2013

Why I Wouldn't Want Dr. Oz to Operate on Me

Pat Malone is a friend of mine and an excellent malpractice lawyer in Washington D.C. He's also a great source of information about issues pertaining to medical malpractice. That's why I frequently read his blog and just came across once of his recent posts Should Mehmet Oz Operate on You?

Who is Dr. Oz?

You would have to be living under a rock (or not own a television) not to know that Dr. Oz is an American surgeon who was featured on the Oprah show and now has his own television series – The Dr. Oz Show. His daily program focuses on medical issues.

So what does Dr. Oz have to do with medical malpractice law? As Pat Malone explains, Dr. Oz was a surgeon at the New York Presbyterian Hospital until his showbiz career took off. Since then, he operates there just one day a week.

From the OR to the Television Studio

The New Yorker wrote an article about Oz's television success. The article speaks about Oz’s qualifications and expertise and then delves into the oddity that is show business:

“Oz is an experienced surgeon, yet almost daily he employs words that serious scientists shun, like ‘startling,’ ‘breakthrough,’ ‘radical,’ ‘revolutionary,’ and ‘miracle.’ There are miracle drinks and miracle meal plans and miracles to stop aging and miracles to fight fat.”

Dr. Oz has moved from being a full-time surgeon at one of the top hospitals in the United States, to a daytime-television entertainer. There is no issue with his move into show-biz. The issue is whether he should be permitted to continue to perform life-threatening surgeries intermittently?

Pat asks whether Dr. Oz’s skills can stay up-to-date without the constant practice that other, full-time, surgeons receive.

10,000 Hours

In his book, Outliers, Malcolm Gladwell popularized the theory that it takes 10,000 hours to become really successful, or a world-class expert, at any specific task.

No doubt this theory applies to doctors as well – it is clear that thousands of hours are required for surgeons to master their skills.

Can You Forget How to Ride a Bike?

Perhaps Dr. Oz would say that surgery is like riding a bike. After spending thousands of hours in operating rooms, he can't forget what he has learned.

It's true that scientists have proven that you can't forget how to ride a bike.

But what if they stop practicing regularly, like Dr. Oz has? Do skills deteriorate if you are not practicing those skills every day? Surely conducting triple bypass surgery is not like riding a bike.

Surgery isn't Like Riding a Bike!

This study from Columbia University showed that surgical skills deteriorated within months and " fine motor skills, required to perform more difficult tasks, deteriorated more than skills needed for easier tasks."

Turns out that maintaining surgical skills isn't like riding a bike. What a surprise.

Continuing Education isn't Continuing Practice

Most medical associations and Hospital policies require doctors to mantain some level of continuing education. According to the New York Presbyterian Hospital website they have a continuing education program. The program is mostly clinical in nature and is provided to medical and surgical staff through the Columbia and Cornell Universities.

However, continuing education programs are usually meant to keep physicains informed about the latest developments in the profession. The programs are not meant to replace clinical practice: in other words, actually performing medical skills on a day-to-day basis.

Why I Wouldn't Want Dr. Oz to Operate on Me

I think it's fair to say that (fortunately) there is little chance I will ever need Dr. Oz's services. I have no doubt he is a skilled surgeon. But is he as skilled as he was before he began his television career?

Every hospital has their version of "Dr. Oz". A senior doctor who is highly skilled, and well respected. But perhaps the doctor has taken on other administrative duties that reduces their OR time. Maybe the doctor spends a great deal of time teaching medical students or travelling to lecture to other doctors at continuing medical education programs.

So my answer to Pat Malone's hypothetical question is that if I was undergoing complicated, life threatening surgery I wouldn't want "Dr. Oz" who is only in the operating room once a week. I would want the surgeon who is in the OR every day practicing their skills by actually treating and helping their patients.

Medical Malpractice?

Surgeons owe a duty to their patients be in-practice and ready-to-go when called upon to perform a surgical procedure.

If a surgeon’s ‘rustiness’ results the doctor failing to meet the expected standard of care and causes harm to a patient, that would almost certainly be grounds for an action against the surgeon. It would also raise a potential claim against the hospital for permitting the surgeon to perform the operation while out-of-practice.

What Do You Think?

If you had to undergo surgery would you want Dr. Oz to be doing the procedure? Please let me know in the comments.

December 10, 2012

Checklists Help Improve Medical Care: Is your hospital using one?

Surgical Infections a Huge Problem

It’s not news that surgeries can result in infections.

More than 250,000 patients develop infections in hospitals across Canada every year. 8000 to 9000 patients will die from the infections they develop in the hospital.

According to a report from the CBC, Hospital acquired infections kill more Canadians every year than AIDS, breast cancer and car accident combined.

In addition to the cost in human lives, there is a significant financial cost to fighting hospital infections.

For example, the California Department of Public Health reports that surgical site infections are the second most common type of hospital acquired infection with approximately 290,000 infections per year. This is estimated to cost between 3.5 and 10 billion dollars per year.

Simple Steps = Big Risk Reduction

But there is good news coming out of a recent study involving seven big hospitals in the United States. The project-study resulted in a one-third reduction in infections following colorectal surgeries. This amounts to a reduction of approximately 135 infections – or $4 million in costs.

The Hospitals that participated in the study made 3 simple changes to hospital policy that resulted in a 30% decrease in the rate of post surgery infections.

3 Simple Changes

Three changes were made at the hospitals:

(1) Patients were made to shower with a special germ-fighting soap prior to surgery;

(2) Surgery teams were made to change gowns, gloves and instruments during the operations; and,

(3) Special wound-protecting devices were used on surgery openings to prevent intestine germs from contacting skin.

In addition to decreasing the rate of infections, the Hospital found that patients who did suffer infections recovered faster, 13 days instead of 15 days.

The President of the commission responsible for the study, Dr. Mark Chassin says:

“The improvements translate into safer patient care. Now it’s our job to spread these effective interventions to all hospitals.”

Surgical Checklist Improves Patient Care

I have written about the dangers of surgery and simple ways hospital staff can reduce errors in a previous article: Simple Checklist Helps Prevent Deaths and Complications after Surgery

The surgical checklist requires the operating team to review a list of questions including:

1. Were proper antibiotics administered?;

2. Is the correct patient on the operating table?;

3. Is the correct surgical site identified?;

4. Is sufficient anesthesia and blood supply available?;

5. Does the patient have any allergies?;

6. Were the needles/sponges correctly counted to make sure nothing was left inside the patient?

Considering the results of the US study, maybe there should be a few more sections added to this checklist. If the steps listed above can substantially reduce the rate of surgical infections, surely there should be widespread implementation.

The Checklist Manifesto

Writing this article reminded me of a fascinating book I read a while ago, The Checklist Manifesto by Dr. Atul Gawande. The book explores the power and value of standardizing procedures through the use of checklists. As dry as that sounds, the book is actually an entertaining and educational read.

Dr. Gawande starts with his own experience in seeing how using surgical checklists improves patient outcome then expands his investigation into how using checklists can help each of us become better at what we do.

What do you think?

What do you think? Should checklists be standard practice in hospitals now?

Let me know by leaving a comment.

November 26, 2012

Doctor negligent but patient loses med mal claim: Fowlow v. Gupta

As a medical malpractice lawyer I am often faced with explaining the difference between proof of negligence and proof of harm. Clients find it difficult to understand how a doctor may be found to be negligent; but still not be responsible for the patients injury or death.

Fowlow v. Gupta

A perfect example is the case of Fowlow v. Gupta which was recently decided by the Ontario Supreme Court.

The claim arose from the tragic death of Mr. Fredrick Fowlow, who died on May 1, 2007, after undergoing surgery at the Southlake Regional Health Centre. The action was filed by his widow and children against the surgeon who performed the operation, Dr. Deepak Gupta.

Summary of Facts

Mr. Fowlow worked as a plumber right up until the days before his death. As a result of a heart attack, Mr. Fowlow was to undergo bypass surgery which would require the insertion of a graft to complete the by-pass. Mr. Fowlow's surgery was postponed when it was discovered that the box containing the graft was no longer sterile. Mr. Fowlow was called back to the hospital a week later for the surgery.

Wrong Graft

Dr. Gupta used an “IMPRA Flex Thinwall” graft during the surgery. Dr. Gupta admitted that he did not know that the IMPRA graft included a warning that it was not recommended for the type of bypass procedure that Mr. Fowlow was having.

Mr. Fowlow was discharged 4 days after the operation. His wife took him to their home, he was helped into bed where he took a nap. Mr. Fowlow’s son went to the pharmacy to fill out the prescription for his dad. When he returned he found that Mr. Fowlow had suffered massive external blood loss. Tragically, he could not be resuscitated.

Graft Disconnected

An autopsy determined that the bypass tube was completely disconnected at the axillary vessel ridge. There was external blood loss through the overlying scar.

How?

The autopsy was able to determine HOW Mr. Fowlow died: The graft detached.

The Court noted:

[35] The cause of death was determined to be the completely disconnected bypass tube, with secondary localized soft tissue hematoma and external blood loss through the overlying scar, likely complicated by an acute cardiac ischemic event.

Informed Consent

The first step in any medical mapractice claim is determining whether the patient gave "informed consent" to the medical procedure or treatment. I wrote about this in detail in a previous article: What Does Informed Consent Have To Do With My Nova Scotia Medical Malpractice Claim?

Basically, the principle of informed consent is that you can only give valid permission for medical treatment if you are provided with all of the information necessary to make an informed decision about the proposed treatment.

The Court in Fowlow found that Dr. Gupta met this standard when he informed Mr. Fowlow that there was a 3% risk of mortality (death) after the procedure. I have written about the use of statistics when discussing consent in a previous article: Informed Consent: Lies, Damned Lies and Statistics in Cancer Claims - Gilberds v. Sobey

Doctor was Negligent

The judge determined that Dr. Gupta failed to read the warning regarding the use of the graft in the particular procedure used in Mr. Fowlow's operation.

The Court ruled that, in not reading the warning on the graft, Dr. Gupta fell below the standard of care.

In other words, Dr. Gupta was negligent.

Justice Stinson ruled that, even though Dr. Gupta failed to read the warning on the graft, Dr. Gupta properly informed Mr. Fowlow of the risks of the operation, and therefore Gupta was not liable for failure to obtain informed consent.

Negligence Isn't Enough!

Proving that the doctor who treated you was negligent is only the first step in winning a medical malpractice case. In my article: What Do I Have to Prove to Win My Medical Malpractice Case? I outline the 4 requirements for success in a medical malpractice case.

1: Standard of Care: The claimant must prove what the standard of care is with respect to the medical procedure involved in the claim. In other words, what is the standard expected of a reasonably competent doctor (or nurse or other health professional) when conducting the medical procedure that may have caused the claimant’s injury?

2: Breach of the Standard of Care: The plaintiff must also prove that the defendant failed to meet the standard of care. In other words, that the doctor did something that a reasonably competent doctor would not have done, or the doctor failed to do something that a reasonably competent doctor would have done.

3: Causation: The plaintiff must also prove the defendant’s breach is what actually caused the plaintiff’s injuries. Even if the doctor was negligent, if the doctor’s negligence was not the actual cause of the plaintiff’s injuries, the defendant will not be found liable (responsible) for the plaintiff’s injuries.

4: Damages: Finally, the plaintiff must prove what damages or losses they have suffered as a result of the defendant’s negligence. This would include non-pecuniary damages (what is commonly referred to as "pain and suffering") as well as the economic losses for things like ongoing medical care or loss of income.

Why?

The judge decided that although the evidence presented to the court determined that the graft failed, the evidence did not explain WHY the graft failed.

[36] … the autopsy records contain no detailed description of the mechanism by which the graft and axillary artery became detached… The evidence merely establishes that the graft was no longer attached to the axillary artery as it had been at the conclusion of the operation. The specific cause of the detachment was not addressed in the autopsy report nor directly in the evidence at trial.

Stinson J. stated that the evidence revealed that there are a number of reasons why a graft can detach.

Doctor Negligent But...

Justice Stinson stated:

[85] I have concluded that, in several respects, Dr. Gupta’s conduct fell below the standard of care. For the plaintiffs to succeed, however, they must establish a casual connection between the conduct of Dr. Gupta and the event that resulted in Mr. Fowlow’s death. In my view, they have failed to do so.

The Court concluded the Plaintiffs had failed to prove Dr. Gupta’s negligence caused Mr. Fowlow's death.

While the Plaintiffs in Fowlow were able to establish the standard of care, prove that there was a breach of the standard, and prove that clearly there was a loss, they were not able to prove that the Doctors breach was what caused the loss.

Conclusion

Without proof of why the graft detached Justice Stinson wasn’t able to say that Mr. Fowlow's death was caused by Dr. Gupta's negligence.

October 9, 2012

Does the Workers’ Compensation Act Immunize Hospitals Against Medical Malpractice Claims?

As a Halifax medical malpractice lawyer I frequently get calls from other lawyers who don't practice this area of law, wondering if their client has a potential medical malpractice claim.

This week I got a call from a colleague of mine, and since his question is one I have been asked many times over the years, I thought it would be helpful to post some information here in case it is helpful to anyone else in the same circumstances.

Work Injury Leads to Negligence in Medical Treatment

The situation was this: The client suffered a back injury at work. He was covered for the injury by Workers Compensation. He was referred for back surgery to treat his injury. The client claimed the treatment her received in the hospital was negligent and actually made his back injury worse. He wanted to know if he could sue the doctor for medical malpractice.

Workers Compensation Law Bars Lawsuits

The first thing non-lawyers have to know is that there is a statutory bar in the Workers’ Compensation Act that says an injured worker is not allowed to sue their employer (if they are covered by WCB). Basically in exchange for the automatic (no-fault) benefits workers get under Workers Compensation, the worker gives up the right to be able to sue.

Not Just Your Employer

What most workers don't realize is that the bar to filing a lawsuit also applies to any other employee or employer covered by WCB.

Are Hospitals Employers Under WCB?

So the question is: "Are who treat patients considered to be employers as defined by the Workers Compensation Act?"

The answer is a little ironic.

Hospitals (Usually) Not Doctors Employers

It is well established in Canadian law that Hospitals (usually) cannot be sued for the negligent acts of doctors who have privileges at the hospitals. Doctors are (usually) considered to be "independent contractors" not employees. Hospitals (usually) will not be held responsible (the legal term is "vicariously liable") for a doctor’s negligent conduct.

[I qualify these statements with the word "usually" because every case depends on it's own facts and there can be exceptions to every rule. Which is why if you have a question about medical malpractice claims, you should hire an experienced medical malpractice lawyer.]

In cases where WCB claims have been involved, there is a line of authority that says Hospitals are employers and therefore they are immune from being sued EVEN IF THEY WERE NEGLIGENT IN THEIR TREATMENT!

An Example From N.S.

The Nova Scotia Court of Appeal dealt with this issue in Queen Elizabeth II Health Sciences Centre v. Nova Scotia (Workers’ Compensation Appeals Tribunal) In that case the plaintiff, Mr. Erl, was injured at work and received workers’ compensation. He claimed the medical treatment he received was negligent and caused further injuries.

Mr. Erl wished to sue the hospital and the doctors involved. The issue for the Court of Appeal to decide was whether the hospital was an employer subject to the Workers’ Compensation Act and therefore the civil action would be barred.

The Court’s analysis begins by noting the premise set out by Sopinka, J. at the Supreme Court of Canada:

[34] “The bar of civil actions is a central feature of the workers’ compensation system and one that is fundamental to its integrity.”

The argument was made that since the doctors that treated Mr. Erl were not considered to be employees under the WCB then the hospital could not be considered to be an employer.

The Court of Appeal said:

“An employer may have servants and agents who are not workers covered by the Act but that does not mean that their employer is not subject to the Act.”

The Court of Appeal ultimately concluded that the hospital was clearly an employer under the act, evidenced by their nearly $4 million payment in assessments under the Act. Therefore, the civil action was barred.

Board Follows Decision of NSCA

The Court of Appeal's reasoning was followed in a Nova Scotia Workers’ Compensation Appeals Tribunal decision from February of this year.

An employee, Kelly McKnight, was injured during the course of her employment. Kelly sought to recover in tort law for the losses not covered by her workers’ compensation (i.e. persistent pain, loss of enjoyment of recreational activities, etc.). The tribunal asserted that Kelly was a covered worker and the defendants in the action were covered employers and therefore her actions were barred by s.28 of the Act.

Are Non-Workers Claims Barred?

Kelly’s husband, Lloyd McKnight, was recovering from surgery and was physically impaired when Kelly suffered her injury. Lloyd suffered from the loss of her assistance. Mr. McKnight was not an employee or employer as defined in the Act.

The tribunal assessed whether Lloyd would be barred from recovery by citing the Queen Elizabeth II Health Sciences Centre decision.

The tribunal found:

“It follows from this analysis that s. 28 has a dual effect: for covered workers, it presents a potential bar to action against any covered employer; for a covered employer, it offers a potential shield to an action arising from any covered worker’s injury… Even though Mr. Erl was not a worker employed by the hospital, he could not sue the hospital. The Court implicitly found that the hospital was immune from suit by any covered worker, employed by any employer, so long as the action was grounded in a compensable injury.”

Is This Fair?

If you have been injured because of someones negligence, you might think it is unfair that the Workers Compensation Act potentially takes away your right to sue for compensation.

The justification for this line of law is that Workers’ Compensation is a no-fault system. Employers pay into the Workers Compensation program and workers are able to recover for their injuries without having to prove liability or having to bear the expenses and lengthy time requirements for litigation.

The trade-off is that there is a statutory bar preventing injured workers from seeking compensation for their pain and suffering, etc.

Is this fair? Should hospitals be protected from law suits when they or their employees have provided negligent treatment? What do you think?

September 7, 2012

Hospital Acquired Infections – Can Technology Help?

Each year, as many as 250,000 Canadians suffer from hospital acquired infections, resulting in up to 12,000 annual deaths. It is estimated that over 30% of hospital acquired infections are preventable. Proper hand hygiene is the single most important way to prevent the spread of infections.

But how do you ensure that your doctor or nurse has washed their hands before they attend to you? See for example my article: Did You Wash Your Hands!? A Lesson in Tact

I have written before about the dangers of hospital acquired infections: Nova Scotia Medical Errors: C- difficile Infections kill 4 in Cape Breton Hospitals

Recognizing the Issue

The Nova Scotia government already recognizes the importance of implementing a proper system for healthcare worker hand hygiene. In fact, the Patient Safety Act, which was brought into law on May 17 2012, specifically states that:

“A district health authority shall compile and report hand-hygiene adherence rates in accordance with a protocol established by the regulations.”

Health Department Official Suzanne Rhodenizer admits current hand washing rates are somewhere between 40% and 50% whereas a more acceptable benchmark would be between 80% and 90%.

CBC reported that Health and Wellness Minister Maureen MacDonald stated the province needs to more effectively measure and report hygiene rates. Officials agree that the problem is that there is no uniform measuring or reporting system in Nova Scotia.

MacDonald was quoted as saying, “if you are not measuring the problem then it’s very difficult to fix the problem.” I totally agree.

Good First Step

I have to applaud the Health Minister for recognizing the dangers posed by hospital acquired infections and taking the first steps toward addressing the problem.

Is Technology the Solution?

There are only so many ways you can remind people to wash their hands before they just “tune out” the reminders.

But an Israeli company thinks it may have come up with a solution. Inspired by the death of her uncle, who contracted an infection after he was hospitalized for a minor complaint, Efrat Raichman is convinced her product can make a difference. Hyginex manufactures a bracelet that is worn by doctors and nurses which communicates wirelessly with soap dispensers and reminds doctors (through flashing lights and a vibration) that they need to wash their hands between patients.

The bracelet even encourages the doctors to wash more thoroughly if it senses that not enough soap was used or if they did not scrub their hands properly.

Perhaps most important, the data from each Hyginex bracelet is sent to a server system and detailed reports are created documenting the hand sanitization of each worker. These reports are automatically produced and they show separate pages for each worker/department/division and hospital.

This appears to be exactly the type of information that the Nova Scotia government is attempting to monitor under the Patient Safety Act.

Fatal Consequences

As a Nova Scotia medical malpractice lawyer, I frequently encounter patients who have experienced further complications as a result of infection.

Hospital acquired infections tend to be more virulent, dangerous and more difficult to treat than infections acquired in the community. I speak from experience; I currently represent the family of a young man who tragically died after developing a hospital acquired infection following routine surgery. Would a product like Hyginex have made a difference in his case? I don’t know. But it is worth considering.

Cost Benefits

There are some who would question whether our overburdened health care system can afford the cost of fancy gadgets to remind health care workers to do something as simple as washing their hands.

But the fact is that most health care workers are NOT washing their hands as frequently or as thoroughly as they should no matter how many times they are reminded. Patients are becoming sick, or dying, as a result. How do you put a price on that?

What do you think?

Please let me know in the comments.

[This article was previously published by The Legal Examiner]

February 15, 2012

Costs in Medical Malpractice Claims Can be a Barrier to Justice

I have discussed before the significant costs involved in pursuing medical malpractice claims in Nova Scotia. The complexity of medical malpractice claims means legal fees and expenses to hire medical experts can potentially bankrupt an unsuccessful plaintiff.

Case in point is a recent decision from Ontario Manary v. Halmo et al.

After a 19 day trial the defendant, Dr. Steven Halmo was found liable to the plaintiff and ordered to pay damages in the amount of $430,000.00.

Loser Pays Expenses

Canada has a “loser pays” system where the loser is usually ordered to pay a contribution towards the winner’s legal costs and disbursements (expenses). This can pose a barrier to legitimate medical malpractice victims. See for example Canada’s “Loser Pays” Rule Not Fair to Medical Malpractice Victims

Defendant Objected to Amount of Costs

In the Manary case the plaintiffs applied to the court looking for contribution to legal fees in the amount of $421,000 and more than $108,000 for disbursements (expenses incurred on the plaintiff’s behalf on preparing for and proceeding with the trial).

The lawyers for Dr. Halmo suggested a more "reasonable" award of costs would be in the range of $170,000.

The court recognized that: “Costs in a complex medical malpractice case can equal or exceed the damages award”.

In considering the defendant’s position regarding costs, the court noted that Dr. Halmo was represented by experienced lawyers provided by the Canadian Medical Protective Association.

The courts stated at paragraph 5:

Counsel and the CMPA would have known that to litigate the plaintiff’s claim would require disbursements of $100,000.00 or more and approximately one and a half to two times that amount for lawyer’s time to get the case ready for trial. Perhaps another $150,000 for lawyer’s time at trial would be an appropriate expectation. A reasonable expectation for an unsuccessful defendant in the present case would, therefore, be to face a partial indemnity costs award of something in the vicinity of $400,000.00 and, if the award were made on a substantial indemnity basis, for well in excess of $500,000.00
[Emphasis added]

Justice Kent ruled that a reasonable and proportional costs award in the amount of $400,000.00 was appropriate.

Why is this important to Medical Malpractice Victims?

This case is important because it clearly illustrates the risks plaintiffs face when undertaking a medical malpractice claim.

Given Canada’s "loser pays" rule, if the situation had been reversed the plaintiff in this case could have expected the doctor’s lawyers to have demanded a contribution to the doctor’s legal costs of over $400,000.00.

The cost of litigating medical malpractice cases in extraordinary. Given the risks involved it is important plaintiffs retain the services of an experienced medical malpractice lawyer as soon as possible to evaluate whether they have reasonable grounds for a claim and what the chances of success are for recovery of significant damages.

Continue reading "Costs in Medical Malpractice Claims Can be a Barrier to Justice" »

January 23, 2012

Exceptions to Implied Undertaking Rule and Confidentiality of Discovery Transcripts: Meuwissen v. Perkin

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.

January 20, 2012

Most Hospital Mistakes Never Reported

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" »

November 10, 2011

Loss of Chance or Negligence? Bennett v. Landecker

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”?


August 29, 2011

Informed Consent: Lies, Damned Lies and Statistics in Cancer Claims - Gilberds v. Sobey

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.

August 26, 2011

Effective Management of Test Results Improves Patient’s Safety

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" »

June 10, 2011

Court of Appeal Overturns Award to Brain Injured Baby - Ediger v. Johnston

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.

Continue reading "Court of Appeal Overturns Award to Brain Injured Baby - Ediger v. Johnston" »

May 25, 2011

Patient Safety: Sleep Deprived Doctors Making Mistakes

Dangers of Deprivation

The Canadian Medical Association Journal has published an editorial that suggests that sleep deprivation in doctors is endangering patient safety.

According to the authors of the editorial, Drs. Noni MacDonald, Paul Hébert, Ken Flegel and Matthew Stanbrook: "The problem may only be getting worse..."

Last year, researchers reported higher rates of surgical complications if a surgeon had less than six hours of sleep the night before.

Doctors Partly to Blame?

"We doctors ourselves are part of this problem...We need to shift our professional culture. Long periods on call should not be accepted as routine or a source of pride. Instead, we must admit that working while impaired from sleep deprivation is neither normal nor acceptable."

What Do You Think?

Does Doc + Sleepy = Dopey (or danger)?

images.jpg + 6972_Sleepy_Dwarf_Standup_679.jpg = Dopey_OK_214572K4a.jpg ?

May 13, 2011

Patient Safety: 10 Tips to Prevent Diagnostic Errors

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

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

Why Diagnostic Errors Happen

There are many reasons why diagnostic errors can happen including:

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

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

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

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

An Example

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

10 Tips to Prevent Diagnostic Errors

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

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

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

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

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

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

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

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


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

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

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

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

May 6, 2011

Quebec Orders Hospitals to Disclose Medical Errors

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 " »

May 4, 2011

Doctors Trying to Protect Reputations by Limiting Patients Speech

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

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

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

Public Relations Problem

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

Becoming More Creative

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

Doctor Controls Patients Comments

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

Fighting a Losing Battle

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

What do you think?

April 14, 2011

“Respectable Minority” Principle a Trap for Malpractice Victims - Cleveland v. Whelan

First Hurdle

The first thing a medical malpractice victim needs to prove in order to win their case is to establish the "standard of care".

The Supreme Court of Canada stated that:

“A doctor’s behaviour must be assessed in light of the conduct of other ordinary specialists, who possess a reasonable amount of knowledge, competence and skill expected of professionals in Canada, in that field. A specialist such as the respondent, who holds himself out as possessing a special degree of skill and knowledge, must exercise the degree of skill of an average specialist in his field.”


That well known quote from the Supreme Court of Canada’s decision in Ter Neuzen v. Korn is referred to in every single medical malpractice trial.

However, there is an exception to the Ter Neuzen rule that can be a trap for medical malpractice victims, and their lawyers.

“Respectable Minority”

This principle says that where a doctor's practice is followed by a “respectable minority” of competent doctors in the same field, a court (or jury) cannot prefer the practice of the majority over the “respectable minority”.

The Ontario Court of Appeal recently had to address this defence in their recent decision of Cleveland v. Whelan.

There was a respectable minority body of medical opinion that differed from the standard of care testified to by the plaintiff’s medical experts.

The Court of Appeal carefully examined the law regarding standard of care and the “respectable minority” principle.

Fortunately, for the plaintiff in this case the Court of Appeal did not agree with the defendant’s arguments:

“This is not a case where the trial judge erred by simply preferring one body of medical opinion over another respectable and competing body of medical opinion when considering the appropriate medical practice. This is a case where the trial judge considered and weighed the conflicting testimony of the expert witnesses on the operative standard of care.”

Although the court rejected the defendant’s “respectable minority” defence the court clearly affirmed the existence of the legal principle.

The court concluded at paragraph 72 of their decision:

“I conclude that Dr. Whelan has not provided any grounds for this court to interfere with the decision of the trial judge. First, the trial judge’s determination of what constituted the standard of care and her application of that standard of care to Dr. Whelan’s conduct were correct. Second, the findings of the trial judge were supported by the evidence presented to her. She was entitled to accept or reject all or part of the evidence of any witnesses. And, on my review of her reasons and the record as a whole, I conclude that Dr. Whelan has not established that the trial judge committed any palpable and overriding errors that would support this court’s intervention.”


Conclusion

Medical malpractice claims are difficult enough for injured patients to win. They bear the burden of proving the appropriate standard of care, that there was a breach of the standard of care, and that the defendant's negligence caused the patients injury or death.

But this decision also reminds medical malpractice lawyers that even after they establish the appropriate standard of care, they still have to investigate if there is another, alternate, standard that is followed by a "respectable minority".

March 27, 2011

Proving Causation in Medical Malpractice Cases - Sienkiewicz v. Greif

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.


March 18, 2011

Birth Injuries More Common During Night Shift

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.

March 3, 2011

Doctors Warn Against Using Internet to Self-Diagnose Illness

There is an old saying that a lawyer who represents himself has a fool for a client.

But what do you call a patient who diagnoses himself? "Dangerous." At least according to Dr. Ross Upshur, a University of Toronto scientist and Canada Research Chair in primary-care research.

Self Diagnosis Dangerous
More and more patients are turning to Google and the internet to diagnose, and even treat, their injuries and illnesses. Doctors are warning people about the dangers of relying on unproven or inaccurate information that can be found while surfing the web.

I couldn't agree more. Doctors are highly trained, well educated professionals. But even with their years of training, sometimes doctors make mistakes. Sometimes those mistakes can have catastrophic, even fatal, consequences.

Why in the world would someone without a medical degree think that they can diagnose themselves by typing a few search terms into Google?

Patient Safety Starts With the Patient

When it comes to patient safety, the first step is making sure you get proper medical advice. That is something you can only get from a doctor (and watching Dr. Oz doesn't count).

Please make sure you get regular medical check ups. If you have concerns about your health, call your doctor, don't turn on your laptop.

January 24, 2011

Busy Doctors Do Not Have a Lower Standard of Care: Ontario Supreme Court

Reasons for judgement were released recently in the case of McLintock v. Alidina.

The plaintiff, Ann McLintock alleged negligence on the part of her family physician, Dr. Alidina, because Alidina hd failed to advise the plaintiff of the results of mammogram testing. McLintock had to undergo a course of 25 radiation treatments and surgical intervention as a result of the alleged delay.

Different Standards for Different Doctors?

The case is interesting because the defendant, Dr. Alidina defended the case, in part, on the basis that the standard of care that she was required to meet as a “busy” family practitioner was lower than the standard of care described by the plaintiff’s expert, Dr. Bloom. Dr. Bloom was the former Chief of Family Medicine at Mount Sinai Hospital in Toronto and, at the time of the trial, was Chief of Family Medicine at the University Health Network (Toronto Western Hospital).

Dr. Bloom testified at trial that a significant portion of his time was devoted to management responsibilities. His clinical practice consisted of four half days and one evening per week. He testified that he saw an average of 14 patients per day.

The defendant, Dr. Alidina testified that she saw an average of 35-50 patients per day.

Alidina claimed that the standard of care required of a busy family doctor was lower than the standard of care required of Dr. Bloom who worked in a major teaching hospital and, by his own evidence, had access to “all of the resources in the world”.

busy-doctors.jpg
Busy Doctor Defence?

Justice Shaughnessy specifically rejected the “busy doctor” defence.

At Paragraph 67 of his decision Justice Shaughnessy stated:

I do not accept the defence’s position that the volume and nature of Dr. Bloom’s practice in contrast to that of Dr. Alidina’s in someway defines the standard of practice in notifying a patient of further mammogram views and an ultrasound.

The standard of care applicable to a family physician in 2000 in the Province of Ontario is the same whether the patient attends to Toronto Western Hospital or a Community Clinic in Pickering, Ontario. Dr. Bloom and Dr. Chapman [the defendant’s expert] both agree the standard of care for a family physician is not less for walk-in patients than it is for family patients who have booked appointments… the family physician must provide excellent care which is responsive to the patient’s needs.

Failed to Meet Standard of Care

The court found that Dr. Alidina failed to have an adequate system in place to notify her patients of the need to follow-up treatment and the results of mammograms and other test results. As a result Dr. Alidina was found to have failed to meet the standard of care expected of a reasonable competent family doctor.

Causation

As I have explained in previous posts, in addition to proving that the doctor was negligent (failed to meet the standard of care) a plaintiff in a medical malpractice claim is also required to prove causation: that the doctor’s negligence caused the injury that is the source of the litigation.

Battle of Experts

There was conflicting expert opinion before the court as to whether or not an earlier diagnosis of Ms. McLintock’s cancer would have changed the outcome.

Justice Shaughnessy’s conclusion was as follows:

In the result I find that a balance of probabilities that Dr. Perviz Alidina was negligent in that she fell below the standard of care in falling to notify Ann McLintock of the October 5, 2000 follow up appointment for conned compression mammography views and ultrasound and further in falling to have in place a system of procedure do discuss the abnormal test results with her on the next appointment.

I further conclude that the plaintiff has failed on a balance of probabilities to prove that the plaintiff has any ongoing risk from her radio therapy and that the prognosis has changed as a result of her delayed diagnosis. Therefore the plaintiff has suffered no damages which are compensable at law.

The plaintiff’s claim is dismissed.

Conclusion

I’ve been contacted by hundreds of persons who believe they have been a victim of medical malpractice. In reviewing the cases we often find evidence that the defendant doctors, hospitals or nurses failed to meet the standard of care. In other words, that there was negligence.

However, as the McLintock case points out, the fact that a doctor was negligent does not mean, by itself, that a plaintiff will be successful in a medical malpractice claim.

Continue reading "Busy Doctors Do Not Have a Lower Standard of Care: Ontario Supreme Court" »

January 12, 2011

Medical Malpractice Claims in Canada: Standard of Care for Medical Students - Anderson v. Greene

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.

November 15, 2010

Police Investigating ER Death

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

November 1, 2010

Court Refuses to Fast Track Nova Scotia Medical Malpractice Claim of Elderly Plaintiff - Langille v. Dzierzanowski

The Supreme Court of Nova Scotia just released its decision in Langille v. Dzierzanowski .

Elderly Plaintiff

The plaintiff, Walter Murray Langille, is 91 years old. He filed a medical malpractice claim against the defendants alleging they removed part of his colon because they mistakenly diagnosed him with colon cancer.

Application to Action

This case is of interest because it was started as an Application under Nova Scotia’s new Rules of Court. The defendants brought a Motion to convert the Application to an Action.

Under Nova Scotia Civil Procedure Rule 5, Applications are intended to be:

“...a speedy, flexible alternative to a trial”.

A claim filed by Application must be heard by the court no more than 25 days after the claim is filed.

Court Has Broad Powers

Under Rule 5, judges are given broad powers to manage the progress of an Application the claim including ordering disclosure, permitting or limiting certain types of discovery, ordering cross examination to take place outside of court, limiting the time for cross examination, setting dates for filing of affidavits and briefs, scheduling a hearing and providing any necessary directions to expedite the claim.

Defendants Request Means 4 Year Delay

In the Langille case the defendant doctors brought a Motion to convert the Application to an Action. This would mean that the claim would progress as a standard claim and a trial in the matter would likely not happen for at least 4 years.

The plaintiff filed expert evidence from an actuary indicating there was a 75% chance the plaintiff would die before the case came to trial if the claim was delayed.

Justice Kennedy acknowledged that, given the age of the plaintiff, the time involved in getting the claim to trial was:

“...a real and legitimate factor in this proceeding”.

Claim Too Complicated to be Fast Tracked

The doctors argued that the medical malpractice claim was “too complex” to proceed other then by Action.

Doctors Say They Want a Jury
jury%20box.jpg

Chief Justice Kennedy noted at paragraph 8 of his decision:

“The doctors have indicated that credibility will be an issue and that expert evidence will be involved. Subsequently, they wish to have a trial by jury.”

Nova Scotia’s Rules of Court do not allow claims that are brought by Application to be heard by a jury.

Chief Justice Kennedy decided to grant the defendnats motion to convert the Application to an Action, despite the delays that would cause in getting the case to trial. His Lordship concluded, at paragraph 32:

“It would be unreasonable to deprive the doctors of their right to a jury trial, a prima facie right commonly protected in this jurisdiction and a process well suited to determining the resolution of the issues of fact that can be anticipated at this trial.”

Pain & Suffering Claims Die With the Victim

Under Nova Scotia’s Survival of Actions Act, non-pecuniary claims (in other words, claims for compensation for “pain and suffering”) die with the victim. In other words, if the plaintiff, Mr. Langille, passes away before his trial, his medical malpractice claim is not likely to proceed since the majority of his claim would be for compensation for his past pain and suffering.

Irony

It is ironic that one of the significant reasons that the court gave for converting the claim to an Action, and the delays that will create, was the fact that the defendants claimed they want a jury trial.

As any medical malpractice lawyer can tell you, it is extremely unusual for defendants in a medical malpractice claim to want a jury trial. In fact, it is common for doctors and hospitals to claim that medical malpractice cases are too complicated for a jury.

See for example the following Nova Scotia cases where defendant doctors tried to strike out a Jury Notice filed by the plaintiff in a medical malpractice claim:

Nova Scotia Court of Appeal Denies Injured Patient’s Right to Jury Trial

Anderson v. Queen Elizabeth II Health Sciences Centre

Crocker v. MacDonald

McLellan v. Shea & Malik

Vaninetti v. Victoria General Hospital

You get the idea.

Will Doctors Continue to Insist on a Jury Trial?

If the plaintiff, Mr. Langille, manages to beat the odds and survive until his trial, it will be interesting to see if the doctors insist on their right to a jury when it is actually time to go to court.


October 29, 2010

Surgical Checklists Save Lives: Help Prevent Medical Malpractice Claims

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" »

October 20, 2010

Bone Strength Drugs May Cause Bone Loss: Halifax Medical Malpractice Lawyer Explains

Each year millions of North Americans take medication that is supposed to help increase their bone strength. More than 20 million prescriptions of Bisphosphonates are written by doctors every year for the treatment of post menopausal osteoporosis (brittle bones). The common brand names of the drugs are Fosamax, Actonel, and Boniva.

May Hurt Instead of Help

The irony is that while these drugs are promoted and prescribed to help increase bone strength, new medical evidence indicates that long term use of the medication may actually cause bone loss.

Researchers at the National Rehabilitation Hospital in Washington B.C. found evidence of unusual fractures in patients taking Bisphosphonates medication.

In the United States the FDA has warned users to talk to their doctors if they develop new hip or thigh pain. The FDA has warned doctors to be aware of the possible risk of fractures in patients taking Bisphosphonates medication.

Last week Health Canada announced it is reviewing the risks posed by Bisphosphonate medication.

4 Questions You Need to Ask

As always, when you are prescribed medication by your doctor you should ask your doctor the following questions:

1. Why are you prescribing this medication?

2. What illness or symptoms is the medication supposed to treat?

3. Are there any known side effects of the medication?

4. Are there any particular risks of taking the medication that I should be aware of?

Continue reading "Bone Strength Drugs May Cause Bone Loss: Halifax Medical Malpractice Lawyer Explains" »

September 29, 2010

NL Radiologist Suspended for Second Time

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" »

September 28, 2010

Medical Malpractice Claims can Help Lead to Better Medical care

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.

September 21, 2010

Medical Malpractice Compensation Limited to Harm Caused by Doctors Negligence: Ontario Court of Appeal

Many Calls but Few Claims

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

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

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

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

No Causation = No Compensation

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

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

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

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

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

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

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

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


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

The book is for sale on Amazon.

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

September 18, 2010

Doctors Closer to Detecting Pre-Eclampsia Earlier

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.

September 17, 2010

Medical Malpractice Claim Filed After Hospital Waiting Room Death

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" »

September 16, 2010

Standard of Care in Medical Malpractice Claims: Supreme Court of Canada Releases Decision

Today the Supreme Court of Canada issued a decision refusing to grant leave (permission) to hear the appeal of a case from Alberta dealing with the issue of standard of care in medical malpractice compensation claims.

The Court of Appeal decision in Nattrass v. Webber reminds us that the practice of medicine is constantly evolving and this may affect the issue of the standard of care.

Four Things You Need to Prove

As I have explained in earlier posts, there are four things that a medical malpractice victim needs to prove in order to succeed with their claim:

Standard of Care: The claimant must prove what the standard of care is with respect to the medical procedure involved in the claim. In other words, what is the standard expected of a reasonably competent doctor (or nurse or other health professional) when conducting the medical procedure that may have caused the claimant’s injury?

Breach of the Standard of Care: The plaintiff must also prove that the defendant failed to meet the standard of care. In other words, that the doctor did something that a reasonably competent doctor would not have done, or the doctor failed to do something that a reasonably competent doctor would have done.

Causation: The plaintiff must also prove that the defendant’s breach is what actually caused the plaintiff’s injuries. Even if the doctor was negligent, if the doctor’s negligence was not the actual cause of the plaintiff’s injuries, the defendant will not be found liable (responsible) for the plaintiff’s injuries.

Damages: Finally, the plaintiff must prove what damages or losses they have suffered as a result of the defendant’s negligence. This would include non-pecuniary damages (what is commonly referred to as "pain and suffering") as well as the economic losses for things like ongoing medical care or loss of income.

The Facts

In the Nattrass case Mr. Nattrass fell and broke his ankle. He had surgery to repair the fracture. The surgery was performed by the defendant physicians, Dr. Webber and Dr. Harley.

Mr. Nattrass was given a blood thinner, Heparin, to prevent unnecessary clotting after his surgery. Dr. Webber and Dr. Harley did not issue any orders to increase the blood tests that Mr. Nattrass was receiving to ensure that he did not have any unusual reactions to the medication.

Unfortunately, Mr. Nattrass developed deep vein thrombosis which is an unusual (although known) adverse reaction to the medication he was receiving. As a result, he ended up having to have both of his legs amputated.

At trial, the judge found that if the doctors had ordered more frequent testing of Mr. Nattrass’ platelet levels, the adverse reaction would have been discovered in time to save Mr. Nattrass’ legs. The trial judge found the defendants negligent.

However, the Alberta Court of Appeal reversed the decision finding that, on the basis of the evidence led at trial, the standard of care at the time that Mr. Nattrass had his surgery, he did not require more frequent blood tests.

Not Perfect Care-Just Competent Care

In other words, although the defendant doctors could have done more to prevent Mr. Nattrass’ injury, they met the standard that was required of them at the time Mr. Nattrass suffered his injury.

The Supreme Court of Canada denied Mr. Nattrass’ leave to appeal, confirming the decision of the Court of Appeal.

No Rear View Mirror in Medical Malpractice Claims
rear%20view.jpg

As the saying goes, hindsight is 20/20. In other words, it is very easy to look back after a patient has been injured or died to figure out what could have been done differently to prevent the patient’s injury or death. However, the courts do not look at medical malpractice claims in the rear view mirror.

Judges and juries are required to look at the evidence to determine what the standard expected of the doctor was at the time the patient was injured. Standards of medical practice change over time and patients must be careful that they lead the appropriate evidence and have supporting opinions that establish the standard of care during the appropriate time frame.

Further reading:

Medical Malpractice Claims: Is Expert Evidence Always Necessary?

Doctor’s “Error in Judgment” is not Negligence

The Top 5 Defences to Medical Malpractice Claims


July 28, 2010

Doctor Sues to Silence Patient

I read blog post today by my colleague Catherine Bertram, a medical malpractice lawyer in Washington D.C. that I thought was interesting.

Dr. Sues Her Patient

She has posted about a California physician, Dr. Kimberley Henry, who has sued one of her own patients who posted a negative review about Dr. Henry online. I wonder if Dr. Henry is opposed to online rating websites generally or just the ones that say bad things about her? Keep in mind that Dr. Henry has signed up for some of these webites and posted her profile.

Gag Orders

Last year I posted about a similar issue Doctors Forcing Patients to Sign Gag Orders .

Catherine's post indicates that some doctors are becoming more aggressive about trying to prevent patients from exercising their right to freedom of expression.

Coming to Canada?

I'm not aware of any similar suits here in Canada, but the online doctor rating sites like Rate MD are a great resource for Canadians. Is it only a matter of time before we start to see doctors suing their own patients?

What do you think? Let me know by posting a comment.

July 8, 2010

Beware the July Effect:Hospital Deaths Spike in Summertime

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" »

June 9, 2010

Medical Malpractice Claims: Is Expert Evidence Always Necessary?

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?" »

May 12, 2010

Woman with Terminal Cancer Sues Doctor for Negligence

Sylvie Deslongchamps has terminal cervical cancer. She is suing her family doctor for medical malpractice for failing to make a phone call that she says could have saved her life.

Patient Did What She Was Supposed to Do

In 2007 Ms. Delongchamps did what ever careful woman is supposed to do. She went for a checkup and pap-smear with her gynecologist. She says she told her doctor about her family history of cervical cancer. She never heard back from the doctor so she assumed that her test results were fine.

However, a year and a half later she began to have uncontrollable bleeding and went back to see the gynecologist. After looking at her chart the doctor realized that the results of the pap-smear indicated Ms. Delongchamps had cancer. But nobody ever told her about the test results!
Ms. Delongchamps says that if the doctor had simply picked up the phone to call her she could have received treatment early enough to save her life.

No News May Not be Good News:

Many of us assume when our doctor orders lab tests or x-rays that our doctor will call us if there is anything we need to be concerned about. Many of my clients have told me that they thought their doctor would call them if there was something wrong with their test results or if they need further follow-up.

Unfortunately, no news is not always good news. Sometimes test results aren’t delivered to the doctor, medical reports get misfiled, or doctors simply forget to alert their patients that they need further follow-up care.

Three Questions That Could Save Your Life

If your doctor orders you to undergo medical tests or refers you to another doctor for a consultation there are three questions that you should ask:

1. How long will it take before I have the test or get the appointment?
2. When will you get the results back?
3. When will I hear from you again?

If you have been referred for medical tests you need to know how long you should expect to wait to have the test. That way you can follow up in case someone forgot to make the appointment.

You need to know when you should expect to hear back from your doctor. Let's face it. Doctors are human. They are busy. They forget. If you don’t hear back from your doctor pick up the phone and make the call.

It may just save your life.

May 10, 2010

Distractions & Interruptions Lead to Nursing Errors

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" »

March 26, 2010

Whistle Blower Nurse Fired and Criminally Charged for Reporting Doctor

I don't normally comment on cases in the United States. But this one was so outrageous it is worth commenting upon.

Nurse Concerned About Doctor's Conduct

Nurse Anne Mitchell wrote what she thought would be a confidential letter to the Texas Medical Board expressing concerns about a doctor’s unsafe medical practices.

She thought the letter would be anonymous. Unfortunately, after learning of the complaint the doctor, Dr. Rolando Arafiles fired the nurse and reported her to the police!

Criminal Charges

Even more incredible the police charged her with the criminal offence of “misuse of official information”. Ms. Mitchell was prosecuted and faced up to 10 years in prison for doing what she believed was her obligation under the law – to report unsafe medical practices.

If Ms. Mitchell was found guilty it would have been a blow not only to her but also to every patient who has to undergo shoddy medical care at the hands of negligent doctors.

Not Guilty!

Fortunately for Ms. Mitchell, the jury deliberated for less than an hour before returning a verdict of not gulity on all the criminal charges. Ms. Mitchell's lawyers have filed a civil suit against the doctor, the hospital and various officials involved in her wrongful prosecution.

This ridiculous prosecution shows the lengths that some doctors will go to when trying to intimidate anyone who expresses concern about the quality of their medical services.

Nurses First Line of Defence

Nurses are often the persons most familiar with the condition and medical needs of their patients. It is the obligation of all health care workers to be aware of, and report, unsafe medical practices.

In 20 years of medical malpratice litigation I have had many cases where the success of my clients claim turned directly on the evidence of the nurses who were courageous enough to chart, and testify, about the negligent conduct of the doctors that injured my clients.

Canada Protects Whistleblowers

In Canada, employers who try to intimidate or threaten employees in order to prevent them from providing information to law enforcement officials are liable for criminal sanctions under Section 425.1 of the Criminal Code of Canada.

There is provincial occupational health and safety legislation that protects employees from reprisals resulting from attempting to enforce statutory health and safety provisions. An employer who fires an employee for reporting their negligence conduct could also be subject to civil sanctions in a wrongful dismissal lawsuit.

However, at least in Nova Scotia, there is no legislation that requires nurses and other health care workers to report what they believe to be negligent medical care on the part of a doctor.

Still Room for Improvement

Our legislation needs to be strengthened to require employees to report what may not be statutory violations but still amount to negligent care while still protecting those who come forward to report their concerns.

March 25, 2010

Patient’s Medical Malpractice Claim against Nurse and Hospital Fails

A recent decision from Justice Lococo from the Ontario Superior Court of Justice confirms the difficult odds that injured patients face when pursuing a medical malpractice claim.

Patient Suffered Stroke

In Hasselsjo v. St. Joseph’s Hospital et al, Songja Hasselsjo suffered a stroke. She sued St. Joseph’s Hospital and the nurse that treated her in the emergency department.

Negligent Triage?

The case revolved around whether the nurse that attended on Ms. Hasselsjo when she was presented to the emergency room properly followed the triage process in place at the hospital. Triage means to sort or prioritize. In emergency departments the triage is the process the hospitals use to prioritize patients for medical treatment.

Rules for Triage?

Guidelines have been developed to help health care providers with the triage process. In Canada, the generally accepted guidelines are the implementation guidelines for the Canadian Emergency Department Triage and Acuity Scale.

Failure to meet Standard of Care?

The judge assessed the evidence and had to determine whether the nurse that treated Ms. Hasselsjo failed to meet the standard of care in conducting her triage examination. The judge then had to consider if there was a breach of the standard of care and did the breach cause or contribute to Ms. Hasselsjo’s stroke and subsequent disability.

As is the case in all medical malpractice claims both sides called experts to testify in support of their claim. The plaintiff’s expert testified that the nurse failed to properly triage Ms. Hasselsjo. The defendants called experts who testified that the nurse did everything required of her under the standard of care.

Paramedics Evidence Critical

In determining if there was a breach of the standard of care, the judge placed a great deal of weight on the evidence of the paramedic who brought Ms. Hasselsjo to the emergency department. It was the view of Justice Lococo that the paramedic’s evidence, as a disinterested third party, was to be preferred over that of the plaintiff.

Justice Lococo determined that, based on the paramedic’s evidence Ms. Hasselsjo was not exhibiting symptoms that would have merited being triaged at a higher level and thus receiving medical treatment faster.

Problem with Causation

The judge went on to say that even if Ms. Hasselsjo had been triaged at a more urgent level the plaintiffs failed to prove that it would have made any difference to the outcome of her injury. If there was negligence, the plaintiffs failed to prove that the negligence was the cause of Ms. Hasselsjo’s stroke.

Continue reading "Patient’s Medical Malpractice Claim against Nurse and Hospital Fails " »

March 10, 2010

Nova Scotia Court of Appeal Denies Injured Patient’s Right to Jury Trial

Our Court of Appeal recently released a decision upholding the decision of Justice David MacAdam denying a patient who claimed she was the victim of medical malpractice the right to trial by jury.

In Anderson v. QEII Health Sciences Centre, the plaintiff suffered a brain injury which she claimed was due to negligent medical care.

Patient Wanted Jury

She sued the hospital where she was treated and the two physicians who were in charge of her medical care. When she set the matter down for trial she filed a jury notice. In other words, rather than having the trial heard by a judge alone she wanted the opportunity to present her claim to a jury of her peers.

Defendants did want a Jury

The defendants moved to strike the jury notice. In other words, they wanted to force the plaintiff to have her claim heard by judge alone. The defendants claimed that the medical evidence that would be submitted at the trial would be too complicated for the average juror to understand.

Jurors as capable as Judges

Justice MacAdam decided that jurors were just as capable as judges to understand complicated medical evidence.

I am not persuaded that given sufficient time, and an opportunity revisit areas of uncertainty, a jury of seven is not in as good a position to examine, weigh and determine scientific or any other issues, as a judge sitting alone. On what basis a judge, untrained in the scientific or technical area under review, is better qualified to determine whether a person with education and training related to the particular scientific or technical area in question, has acted properly or improperly, is unclear. Nothing in the submissions of counsel, particularly counsel for the individual defendants, satisfies me that this is either probable, or even a serious possibility.

Lack of Time a Disadvantage

However, Justice MacAdam felt that a jury trial would be a significant disadvantage in hearing claims involving complicated expert testimony because judges can take as long as they need to reach their decision whereas jurors are under time pressures.

Justice MacAdam stated:

There is, however, one difference in how a jury, as opposed to a judge alone, would be able to conduct a review of the evidence, including particularly the expert evidence, and the weighing of the submissions of counsel. Although it has been stated a jury can take as long as required, practically, they are limited to making an "almost" immediate decision. Whether it be hours, days, or even, in some cases, a couple of weeks, there are effectively time restraints on their reaching a conclusion.

No Time Limits on Juries

There are no time limits on how long a jury may take to render a decision. Juries can take as long as they need to consider all of the evidence before them. Juries also have the right to return to court to ask for instructions from the judge on any legal issues. Juries even have the opportunity to reply the testimony for various witnesses. They also take all of the medical reports and all other exhibits presented during the trial with them into the jury room.

However, that being said, most juries reach their decision in hours, days or sometimes weeks. Whereas judges in complex claims often take months to consider the evidence and render their decision.

In upholding Justice MacAdam’s decision to strike out the jury notice the Court of Appeal said:

With respect, to suggest, as have the appellants, that this case stands for the proposition that a judge may strike a jury notice simply because it would be more conveniently tried by a judge sitting alone, is a distortion of the carefully crafted and case specific reasoning in the judgment under appeal.
Medical malpractice claims almost always involve numerous experts and complicated medical evidence. However, they are no more complicated then many other types of complex civil litigation.

The simple fact is that medical malpractice claims are often complicated because the defendants make the case complicated. It is that complexity that has led some judges to deny injured victims the right to have their claims heard by a jury.

February 4, 2010

Patient Suffers Stroke: Wins Malpractice Claim Due to Lack of Informed Consent

Informed Consent

I have posted before about informed consent to medical treatment and why it is so important in medical malpractice claims. Unfortunately, these types of claims are very difficult to win.

What Does Informed Consent Have To Do With My Nova Scotia Medical Malpractice Claim?

Mature” Children Can Refuse Medical Treatment: Supreme Court of Canada

Neck Manipulation Caused Stroke

That's why I found a recent decision out of Newfoundland and Labrador very interesting.

A chiropractic patient recently won a difficult case against a local doctor alleging neck manipulation caused her stroke. The case was tried in St. John's.

In Gallant v. Brake-Patten the patient, Ms. Gallant successfully sued her chiropractor. She claimed that she suffered a stroke after undergoing neck manipulation.

Justice Harrington accepted the plaintiff's evidence that the chiropractor did not advise her of the risk of stroke. Harrington J. was also satisfied that Ms. Gallant would not have had the chiropractic treatment if she had known about the risk of stroke.

Finally, she was able to prove on the balance of probabilities that the neck manipulations actually caused her stroke. This is an issue that has been the subject of some debate among medical experts.

I have created a video explaining what informed consent is and why it is important in medical malpractice cases. You can watch it here or go to our video library to see this video and other videos with useful information about medical malpractice and personal injury claims.


Thanks to my colleague Ches Crosbie for alerting me to the decision. Ches is one of the premier medical malpractice lawyers in Newfoundland and Labrador.

November 16, 2009

Nurse's Negligence Caused Child’s Brain Injury

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" »

November 11, 2009

Apologizing for Mistakes Reduces Mistakes!

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!" »

November 11, 2009

Nurses Have a Duty to Ensure Doctors Meet the Standard of Care

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" »

September 19, 2009

Medical Malpractice Claim Struck Out for Lack of Expert Evidence

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" »

September 17, 2009

$4.5 Million Award for Child Who Suffered Cerebral Palsy Due to Birth Trauma

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" »

August 22, 2009

Should I Let My Family Lawyer Handle My Medical Malpractice Claim?

Many people know a lawyer who handles the routine legal matters that most families have to deal with from time to time; buying and selling a house, preparing a will, dealing with speeding tickets, maybe even routine personal injury claims.

So when you or a family member has been injured by a doctor or a hospital your family lawyer is probably the first person you think of to turn to for advice.

But is your family lawyer the right person for the job? Maybe, maybe not. Medical malpractice is a very specialized area of the law.

What to Look For

While it is not necessary for a medical malpractice lawyer to have a medical degree, it is helpful for your medical malpractice lawyer to have a familiarity with various medical specialties and knowledge of human anatomy.

You want your medical lawyer to be familiar with the defence lawyers that are going to be involved in defending your malpractice claim. You also want your lawyer to have experience in handling complicated medical malpractice cases.

Ask your family lawyer if he or she handles medical malpractice cases on a regular basis. Dealing with personal injury cases, or car accident claims does not necessarily provide the kind of experience you will require in order to successfully prosecute a medical malpractice claim.

Frequently I am contacted by medical malpractice victims or their family members who want to settle out of court. Sometimes the lawyers file medical malpractice claims in the hopes that the doctor’s lawyers will settle quickly in order to avoid the time and expense of a trial. That type of strategy will fail miserably in a medical malpractice case. Why? Simply because most doctors in Canada are defended by the Canadian Medical Protective Association (CMPA). The CMPA is a non-profit defence fund whose sole purpose is to “vigorously defend” any and all malpractice claims brought against doctors in Canada.

Medical malpractice claims rarely settle and when they do it is usually just shortly before trial and after the plaintiff has spent tens of thousands of dollars for experts.

Just remember, your family lawyer may be a great lawyer but you should think long and hard about whether or not you want to him or her to handle your medical malpractice case. Ask a lot of questions so you can make an informed decision.

Continue reading "Should I Let My Family Lawyer Handle My Medical Malpractice Claim?" »

August 16, 2009

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

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? " »

August 11, 2009

“Common Sense” Does Not Apply In Medical Malpractice Claims

The Ontario Court of Appeal recently released its decision in Rowlands v. Wright allowing an appeal by a surgeon who had been found liable for medical malpractice at trail.

Dr. Wright performed laparoscopic gallbladder surgery on Ms. Rowlands to remove her gallbladder. Dr. Wright cut the patient’s common bile duct mistakenly believing it was the cystic duct. Ms. Rowlands brought a medical malpractice claim seeking compensation from Dr. Wright and was successful at trial.

In determining whether Dr. Wright had met the standard of care required of a reasonably competent surgeon the trial judge stated:

“...a finder of fact may use common sense in assessing the surgeon’s conduct as he followed the standard medical practice described by the experts.”
The trial judge determined that, as a matter of common sense, a doctor should make sure they are aware of what they are cutting when surgery is performed.

Standard of Care is is not Common Sense

The Court of Appeal ruled that expert’s evidence at the trial determined that the standard of care required a surgeon to obtain a “critical view” of the area being operated on. It is not necessary for the surgeon to be certain exactly what organ they are cutting.

As a result, the Court of Appeal dismissed the finding of liability against the defendant and a new trial was ordered.

I have clients come to see me who are certain what happened to them is the result of medical malpractice. Sometimes when I hear their stories it seems to me that, based on common sense, the doctor must have done something wrong.

However, in order to win a medical malpractice claim, the plaintiff must establish, on the balance of probabilities, what the standard of care required of the doctor actually was, that the doctor breached the standard of care, and that the breach is what caused the plaintiff’s injury.

I have had many cases where independent neutral experts have told me that, despite what seems to be “common sense” the standard of care was not breached and therefore there was no medical malpractice. This case simply reinforces the importance of getting an appropriate expert opinion early on in the preparation of a medical malpractice claim.

Continue reading "“Common Sense” Does Not Apply In Medical Malpractice Claims" »

July 22, 2009

Failure to Diagnose Cancer: Do I Have a Medical Malpractice Claim?

Highest Cancer rates in Canada

Nova Scotia has the highest cancer rates in the country. According to the Canadian Cancer Society, 40% of Canadian women and 45% of men will develop cancer during their lifetime. I have been asked to review dozens of cases where clients have suffered various forms of cancer which they believe went undiagnosed by their doctor.

What Questions Should You Ask?

So what kind of questions do you need to ask to know whether you have a medical malpractice claim for failure to diagnose your cancer?

When I review a client’s claim involving someone who was injured (or died) from cancer I need to know the answers to the following questions:

Does anyone in your family have a history of cancer?

In order to properly diagnose a patient, doctors must take a patient’s history. That includes details of any significant illnesses that may run in the patient’s family. A patient whose family members have been diagnosed with or died from cancer are at higher risk of developing cancer themselves.

Therefore, if you doctor knows that you have other family members who died from cancer (or failed to ask you about this issue) your doctor may have been negligent in failing to take a proper medical history.

Were you under the care of a doctor when you think your cancer should have been diagnosed?
Unless you were seeing a doctor on a regular basis during the time frame that you were exhibiting symptoms that should have led to the diagnosis of your cancer, it will be next to impossible to establish that your doctor was negligent.

In other words, if you didn't see your doctor, how can your doctor be negligent in failing to diagnose your cancer?

Did you have any symptoms that should have warranted an x-ray?

Did you tell your doctor about any complaints or symptoms you were experiencing that should have led your doctor to request further follow-up tests that could have revealed your cancer?

What type of cancer were you diagnosed with?

This question is extremely important because there are certain types of cancer that are very treatable if they are caught early enough. In other words, if your cancer was diagnosed promptly, you may have been able to receive treatment that could have eliminated the cancer.

On the other hand, there are certain types of cancer that are almost invariably fatal. For example, by the time that a patient exhibits obvious symptoms of pancreatic cancer it is almost always too late to administer effective treatment.

What stage of cancer were you diagnosed with?

The stages of cancer are classified from stage 0 (being the least severe) to stage 4 (the most severe and deadly). If your cancer could have been diagnosed when it was in the earlier stages then it is possible that it could have been treated and eliminated.

How much time went by from the time you should have been diagnosed until the time a proper diagnosis was made?
This is one of the most important questions that we will need to answer in any case involving failure to diagnose cancer.

If a doctor fails to properly diagnose cancer but the negligence results in a delay of days or even weeks before treatment is administered, it is not likely that your medical negligence claim will be successful.

On the other hand, if the failure to diagnose results in a delay in treatment of months or years, it is far more likely that the patient will be able to successfully establish a claim for negligence.

Would the outcome be different?

Have you asked your cancer specialist (oncologist) if your treatment would be different, or your chances of recover better, if the cancer had been detected earlier?

Different types of cancer have different growth patterns and grow at different speeds. If you have a slow growing tumor, and made complaints that suggested the need for further diagnostic tests and x-rays, you may have the basis for a medical malpractice claim for failure to diagnose your cancer.

What is your prognosis?

What do the doctors think about your chances of survival and the treatment opinions that are available to you?

Are you a smoker?

This question is relevant for two reasons. Smokers are at an increased risk of developing lung cancer. That means that doctors should be looking for symptoms that may point to the possibility of lung cancer.

On the other hand, if you continued to smoke after being diagnosed, the defendant may argue that you decreased your chances of recovery.

What Happens Next?

After reviewing all of your medical records, x-rays, CAT scans and other relevant information we will need to have a medical expert review your records.

The medical expert will provide a medical-legal opinion on whether you doctor failed to meet the standard of care expected of a reasonably competent doctor and whether the breach of the standard of care caused or contributed to your cancer.

Only after all this is done will we know if you have reasonable grounds for a medical malpractice claim.

Continue reading "Failure to Diagnose Cancer: Do I Have a Medical Malpractice Claim?" »

July 15, 2009

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

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?" »

July 10, 2009

“Mature” Children Can Refuse Medical Treatment: Supreme Court of Canada

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" »

July 9, 2009

99% Of Potential Medical Malpractice Victims Never File a Claim!

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!" »

July 4, 2009

Loss of Valuable Services in Medical Malpractice Claims

Household Chores = Valuable Services

Few of us think of the day to day household chores that we have to do around our home as being valuable. On the contrary, many of us view them as an annoyance.

But if you have suffered a serious physical injury you may not be able to perform the household chores and duties that you routinely did before the accident.

What would happen if you were not able to do your normal household chores/duties on a regular basis?

The dishes would pile up, your house would get filthy, your lawn would turn into a field of weeds, your sidewalk would become dangerous and icy and your house would fall into disrepair.

Defendant May Be Ordered to Pay Expenses

If the defendant is found liable (responsible) for causing your injuries, then they may be ordered to compensate you for the costs of hiring someone to perform all of the household duties that you can no longer do as a result of your injuries.

Housekeeping Costs

For example I have made claims to compensate my clients for the expense of hiring housekeepers to come into their home to do laundry, wash their dishes, make their beds, and help cook meals.

I represented a single mom who suffered a spinal cord injury and was confined to a wheelchair. We were able to recover compensation for her for the cost of hiring a childcare worker to come into her home to help care for her 2 young children until she was able to care for her children on her own.

Maintenance Costs

I have had clients who were no longer able to perform their normal household maintenance activities. We have submitted claims to cover the cost of mowing their law, shoveling their sidewalk, and even maintaining their garden.

To put it simply, a claim for loss of valuable services covers all of the normal day to day physical activities that a homeowner has to engage in to maintain their home and their property.

What You Do Has Value!

Everything you do to take care of yourself and your family has value. If your injuries prevent you from being able to perform a physical duty, chore or activity that you were able to perform before you were injured, the court will consider compensating you for the actual financial cost of hiring someone to perform those valuable services.


Continue reading "Loss of Valuable Services in Medical Malpractice Claims" »

July 1, 2009

Canada’s “Loser Pays” Rule Not Fair to Medical Malpractice Victims

You Lose, You Pay!

In Canada, the courts have what is known as a “loser pays” rule. What that means, in most cases, is that the person that loses a lawsuit has to pay some (or all) of the legal fees and expenses of the person that wins the lawsuit.

Discourages Frivolous Lawsuits

The theory behind the “loser pays” rule is that it is supposed to discourage frivolous lawsuits. In other words, if you know you will have to pay the defendant’s legal fees if you lose, you may think twice before filing a lawsuit that doesn’t have merit.

Discourages Legitimate Claims?

Although the idea of the loser pays rule is to discourage frivolous lawsuits, in practice it actually has the effect of discouraging people with legitimate lawsuits from pursuing their claims.

Assume, for example, that you have been seriously injured as a result of medical malpractice. You can’t work, your bills are piling up, and you can’t pay your mortgage. Then your lawyer tells you that if you file a lawsuit and lose, you might have to pay the defendant doctor or hospital tens of thousands of dollars.

What are the chances that you are going to proceed with your lawsuit? Pretty slim, right?

Injured Patients Can't Take the Risk

I have had dozens of cases over the years where impartial medical experts advised me that my client’s injuries were the result of medical malpractice. But, the injured patient decided not to file a medical malpractice claim because they were afraid that if they lost the lawsuit, they might be ordered to pay legal costs to the doctor that they had accused of medical malpractice.

Not a Level Playing Field

The sad fact is that the C.M.P.A., the organization that defends most doctors in Canada, has almost unlimited financial resources compared to injured patients who have little or no ability to finance the significant costs of medical malpractice litigation.

Being ordered to pay thousands of dollars in legal costs to a successful plaintiff when defending a negligent doctor is a drop in the bucket to the C.M.P.A.

Careful Case Selection Critical

I am extremely selective in the medical malpractice cases that I agree to take on. I will not agree to represent a patient in a medical malpractice claim unless I am convinced that their claim has merit and that the injured patient (or their family) has a reasonable chance of successfully recovering compensation for their injuries.

Severely Injured Patients Have No Choice

Deciding to file a medical malpractice lawsuit is one of the most important, and difficult, decisions that my clients will ever make. But most of my clients who have been catastrophically injured as a result of medical negligence literally have no choice. They face huge medical bills and may never be able to work. Filing a medical malpractice claim is the only hope that they have of ever receiving compensation, and justice, for what happened to them.


Continue reading "Canada’s “Loser Pays” Rule Not Fair to Medical Malpractice Victims" »

June 29, 2009

The Consumer’s Guide to Medical Malpractice Claims in Canada

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" »

June 27, 2009

Medical Malpractice in Canada: How often does it happen?

You may have a medical malpractice claim if you have been injured as a result of a preventable error or negligent care while receiving medical treatment.

Most Medical Injuries Preventable

A famous study by Harvard Medical School determined that over half of all injuries caused by medical mismanagement (in other words, not caused by the patient’s initial injury or disease) were preventable, and another quarter of those incidents were caused by negligence.

Canadian Medical Association Report

A report published by the Canadian Medical Association (CMA) Journal confirmed the findings of similar studies in the United States, Australia, the United Kingdom, Denmark and New Zealand.

The C.M.A. study concluded that:

1. As many as 24,000 patients die each year due to “adverse events” (doctor’s code word for a bad result or a mistake).
2. 87,500 patients admitted annually to Canadian acute care hospitals experience an adverse event.
3. 1 In 13 adult patients admitted to a Canadian hospital encounter an adverse event.
4. 1 in 19 adults will potentially be given the wrong medication or wrong medication dosage.
5. 37% of adverse events are “highly” preventable.
6. 24% of preventable adverse events are related to medication error.

5 Million Medical Mistakes

A report by the Canadian Institute for Health Information indicated that nearly ¼ of Canadian adults (that’s 5.2 million people!) reported that they, or a member of their family, had experienced a “preventable adverse event”. In other words, a medical error.

So there you have it, nearly ¼ of all Canadians, or a member of their family, have experienced a preventable adverse event that may be the result of medical malpractice.

Mistakes May Not Be Negligence

Not all mistakes are the result of negligence and just because a doctor was negligent does not necessarily mean you have a viable medical malpractice claim. That’s why I wrote The Consumer’s Guide to Medical Malpractice Claims in Canada. So that patients and their family members who may have suffered an injury as a result of medical malpractice can learn what they need to know to determine if they have a legitimate medical malpractice claim.

You can get a free copy of my book by contacting me through this blog or by calling my office toll-free 1-877-423-2050.

June 24, 2009

Medical Malpractice Claims: The Burden of Proof and O.J. Simpson

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%20of%20Justice.jpg

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" »

June 21, 2009

Income Loss in Medical Malpractice Claims

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" »

June 19, 2009

Medical Malpractice Claims: What can I get compensated for?

The goal of the court in any claim for compensation for personal injuries is to try and put the injured person (or their surviving family members) in the same position they would have been had the negligence (malpractice) not occurred.

Money cannot replace the loss of a loved one or truly compensate for the loss of a limb or a catastrophic injury. But the courts try to provide a fair and reasonable measure of financial compensation to innocent victims who have been injured as a result of the negligence of others.

These basic principles apply to all compensation claims, including medical malpractice claims.

Non-Pecuniary Damages: Pain and Suffering

A non-pecuniary claim is one that does not result in a direct out of pocket financial loss but is still considered to be worthy of compensation. Non-pecuniary damages are sometimes referred to as compensation for “pain and suffering” but they cover any non-financial loss.

A better way to describe non-pecuniary damages is that it is compensation for pain and suffering and loss of amenities of life. In other words, the court tries to compensate the injured person for their pain and the loss of all of the enjoyable activities that they were able to perform before they were injured.

How Do The Courts Calculate Pain and Suffering?

There is no such thing as a “pain-o-meter”. A medical malpractice victim cannot be hooked up to a machine that prints out the financial value of their pain. What a judge (or jury) does in determining your compensation for pain and suffering in a medical malpractice claim is use their experience and discretion to consider how your injuries have limited your ability to function, your normal day to day activities, your hobbies or your ability to work?

Cap on Compensation Claims

The Supreme Court of Canada has placed a cap on the amount of compensation that medical malpractice victims can receive for non-pecuniary damages. The cap was set in 1978 at $100,000.00, taking inflation into account, it is now generally accepted to be around $300,000.00.

But that amount is only paid to the most severely injured victims. If you are considering a medical malpractice claim for non-pecuniary damages, it is important to have an experienced lawyer assisting you to ensure that you provide the court (or the jury) with all of the relevant information that they will need to consider when assessing your claim for “non-pecuniary damages”.

Continue reading "Medical Malpractice Claims: What can I get compensated for?" »

June 18, 2009

The Consumer’s Guide to Medical Malpractice Claims in Canada

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.

June 17, 2009

Medical Malpractice Compensation Caps: The Difference Between the United States and Canada

Caps on Medical Malpractice Compensation

Several jurisdictions in the United States have a cap on the amount of compensation that victims are entitled to receive in their medical malpractice claims. The amount of the cap, and what is capped, varies state by state.

No Malpractice Caps in Canada (sort of)

In Canada, while there are no caps specifically targeted at medical malpractice claims, the Supreme Court of Canada has created a cap that applies to all serious personal injury claims.

Since most people who contact me for medical malpractice claims have suffered catastrophic injuries, the Supreme Court of Canada’s ruling effectively caps the amount of compensation they are entitled to receive.

Supreme Court Caps Claims

In 1978 in a landmark case known as Teno v. Arnold the Supreme Court of Canada ruled that no matter how seriously injured you are the maximum amount for compensation you can receive for non-pecuniary damages (what is commonly referred to as “pain and suffering”) is $100,000.00.

Cap Supposed to Lower Insurance Rates

The reasoning behind the cap was primarily to prevent insurance rates from skyrocketing and becoming unaffordable for consumers. Unfortunately there was little evidence before the court that insurance rates would be effected by a compensation cap.

Taking inflation into account the amount capped on pain and suffering is currently considered to be slightly more than $300,000.00. But that maximum amount is only paid to the most catastrophically injured victims, persons who suffered quadriplegia, severe brain damage and similar injuries.

Victims Often Don't Get Full Award

Even plaintiffs that receive awards that seem large often never see the amount decided by the judge or jury. Many personal injury compensation awards are dramatically reduced on appeal. These reduced or reversed judgments are almost never reported by the media.

But doctors in Canada are not insured by for profit insurance companies like in the United States. In Canada malpractice coverage is provided by a non-profit defence fund called the Canadian Medical Protective Association. Consumers don't pay for this insurance, so rising rates are not an issue.

Given the enormous costs of pursuing a medical malpractice claim, the Supreme Court of Canada’s cap on compensation presents a real barrier to fair recovery for innocent victims of medical malpractice.

Is It fair?

What do you think? Is it fair that compensation for malpractice victims is capped? When a patient is injured as a result of a doctor's negligence is it fair that the victim's compensation is capped so that the doctor may have lower insurance premiums?

Continue reading "Medical Malpractice Compensation Caps: The Difference Between the United States and Canada" »

May 30, 2009

Misdiagnosis or Failure to Diagnose in Medical Malpractice Claims

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

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

Making a mistake may not be malpractice

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

"How do I know when misdiagnosis is malpractice?"

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

What were you symptoms that you described to your doctor?

What was the misdiagnosis (wrong diagnosis)?

What was the correct diagnosis?

Who eventually gave you the right diagnosis?

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

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

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

Long delays may not matter

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

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

But even short delays can be critical

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

Every case is different

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

The bottom line

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

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

May 28, 2009

How Do I Know if I Have a Medical Malpractice Claim?

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.


March 10, 2009

Medical Malpractice and "The Oprah Effect"

Oprah Investigates Medical Malpractice

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

100,000 Americans 24,000 Canadians Die Every Year

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

Dennis Quaid Interviewed

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

Smart Patient Checklist

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

Checklist Prevents Deaths

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

Will the Oprah Effect Kick In?

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

Doctors Don't Have to Disclose Errors!

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

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

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

March 4, 2009

Doctors Forcing Patients to Sign Gag Orders

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" »

January 22, 2009

Simple Checklist Helps Prevent Deaths and Complications after Surgery

The New England Journal of Medicine has published a study showing that using a simple checklist helped decrease the number of surgery related deaths by more than 40%. The research showed that major complications after surgery fell by almost 1/3.

Using a Checklist

The checklist required the operating team to review a list of questions which included:

1. Were proper antibiotics given;
2. Was the correct patient on the operating table;
3. Was the correct surgical site identified;
4. Was sufficient anesthesia and blood supply available;
5. Did the patient have any allergies;
6. Counting needles/sponges to make sure nothing was left inside the patient.

Staggering Results

The results of the checklist were, to use the words of one of the researchers, “staggering”. Dr Bryce Taylor, a doctor at one of the Canadian hospitals that participated in the study, told The Globe and Mail:

“I would not undergo surgery, unless I knew the checklist was being done.”

Just Common Sense?

I think most of us would say that making sure you operate on the right patient is just common sense. Why do you need a checklist for that?

Unfortunately, common sense is something that is often lacking in our overburdened hospitals that are under staffed by overworked doctors and nurses.

Common sense sometimes gives way to:

“I thought he/she was responsible for that”.

An Example

Case in point, I’m representing a lady who had bowel surgery. After the surgery she complained for almost 2 years of excruciating pain. Her surgeon told her the pain was “normal” and that it would get better.

When the pain became worse her complaints were labeled as “attention seeking”. That is until her family doctor noticed a piece of surgical gauze sticking out of her surgical wound.

My client eventually had to have a second round of surgery to remove 4 feet of her bowel because 6 feet of surgical gauze had become embedded into her body.

The claim was made against the doctor that performed the surgery and the nurses that assisted the doctor in the O.R.

It's The Other Person's Fault!

The surgeon's defence: “I thought the nurses had counted all the surgical gauze”.

The nurses’ defence: “The doctor was responsible for ensuring that he took everything out of the patient before he closed her up”.

No matter how simple using a checklist may be, I applaud any effort that can so dramatically reduce post operative deaths or major surgical complications.

Now we just need a checklist to make sure everyone uses the checklist.


Continue reading "Simple Checklist Helps Prevent Deaths and Complications after Surgery " »

December 12, 2008

You Can File a Complaint About Your Doctor!

I get several calls a week from patients, of family members of patients, who are concerned about the care that they, or their family member, have received from their doctor or hospital.

In most cases, a careful investigation of the facts reveals that there are no grounds for a medical malpractice claim (in other words, the doctor or hospital wasn’t negligent) or that there may have been negligence in the patient’s care, but the cost of filing a lawsuit would be more than the potential recovery.

Explaining these facts to my clients is one of the more frustrating aspects of being a medical malpractice lawyer. I hate telling patients that I believe there was negligence in the care they received but that I don't think they should pursue a compensation claim.

My colleague Ches Crosbie has posted about this problem at the Newfoundland Injury Law Blog. Ches is one of Newfoundland and Labrador’s finest medical malpractice lawyers. He points out that the decision to accept or reject a client who has a medical malpractice claim is always difficult.

College of Physicians and Surgeons

However, if you are not satisfied with the care that you or your family has received, you can file a complaint with the College of Physicians and Surgeons. Each province has a College of Physicians and Surgeons that is made up of a panel of doctors and lay persons (non doctors) who are responsible for hearing complaints about doctor’s conduct and administering discipline.

Discipline can range from something as simple as giving the doctor a warning to as serious as suspending the doctor’s license or taking away the doctor’s license to practice medicine in that province.

File a Complaint About the Doctor!

I encourage patients and family members who are concerned about a doctor’s conduct to contact the College of Physicians and Surgeons to express their concerns. Often the patients don’t follow through with the complaint. I think this is a real mistake.

There are certain doctors who I regularly receive calls about. However, if the patients don’t file a complaint with the College of Physicians and Surgeons, there is no way for the College to know about any potential concerns about the doctor’s conduct.

When a patient finally files a complaint the College may not take the complaint seriously because it is the first complaint received about a particular doctor. The Board members' reasoning may be something like: “Well, we have only received one complaint about his/ her conduct. Lets give the doctor a warning to make sure it doesn’t happen again”.

On the other hand, if the College has received a half dozen or more complaints about the same doctor they will be far more likely to take the complaint seriously and more likely to administer more severe discipline to the doctor.

Ches gives some good advice about what type of information should be contained in a complaint to the College of Physicians and Surgeons. I would recommend anyone considering filing a complaint to take a look at his post.


Continue reading "You Can File a Complaint About Your Doctor!" »

December 11, 2008

Pathologist Menon Should Have Been Fired Years Ago: N.B. Inquiry

Dr. Rajgopal Menon, a pathologist responsible for potentially hundreds of faulty cancer test results should have been fired years ago according to Justice Paul Creaghan

5000 + Test Results Wrong or Incomplete!

Justice Creaghan is heading up an inquiry formed after an independent audit found that more than 5000 of Menon’s pathology tests for breast cancer and prostate cancer were incomplete or misdiagnosed. Let me repeat that: Menon's test results were wrong in more than FIVE THOUSAND cases. More than 25% of all the test results he performed over 12 years contained errors!

As a result, cancer patients had their diagnosis delayed or, in some cases, patients were told they had cancer when they did not.

Menon Refuses Responsibility

Menon has consitantly refused to take responsibility for his actions. Take a look at some of my previous posts: Disgraced Pathologist Menon “Sorry” but Blames Everyone in Sight and Disgraced Pathologist Menon's Work had 'Big Problems': New Brunswick.

The National Post has reported that Menon questioned Justice Creaghan at the press conference announcing the inquiry results. Menon asked why Justice Creaghan did not make any recommendations regarding the quality of the hospital administration during the time that he was employed with the hospital district.

Menon was quoted as saying: “This is very important because there is a lot of interaction between the administrators and pathologist, especially at the Chief’s level”.

Health Authority Knew About Problems

Creaghan acknowledged that there were problems at the Miramichi Regional Health Authority. That’s putting it kindly. I have posted about previous evidence from the inquiry which made it clear that staff at the Health Authority were well aware of the problems with Menon’s work.

For example: Health Authority Knew about Pathologists Problems: Miramichi and Deputy Minister Received Complaints about Disgraced Pathologist: New Brunswick and Negligent Cancer Screening put Patients at Risk: Miramichi Hospital and finally Negligent Cancer Screening in New Brunswick may Lead to Criminal Charges and Medical Malpractice Claims.

It seems to be clear from the evidence presented at the inquiry that Menon’s work did not meet the standard of care required of a competent pathologist.

Delays in Diagnosis may have Fatal Consequences

If Menon’s faulty work resulted in a delay in diagnosing cancer patients, it’s possible that patients may have died due to his incompetence. Since early identification and treatment provide the best chances of survival, it is foreseeable that the problems with the Miramichi Health Authority may have lasting and fatal effects for many patients.

Lawyers are considering a proposed class action against the Health Authority for systemic negligence. If you or a family member has been diagnosed with cancer as a result of testing performed at the Miramichi Regional Health Authority you should contact a lawyer to see whether you have a potential medical malpractice claim.

Continue reading "Pathologist Menon Should Have Been Fired Years Ago: N.B. Inquiry" »

September 29, 2008

How Often Does Medical Malpractice Happen in Canada?

How often does medical malpractice happen in Canada?

The short answer is that the law suits that are filed in court are just the tip of the iceberg when it comes to medical malpractice claims in Canada.

Medical malpractice claims in Canada tend to get a lot of attention in the media. Everyone is concerned about the quality of health care that they receive, and claims that raise concerns about problems with medical care naturally get reported in the newspapers or on television.

Most Malpractice Victims Don't File Law Suits

But the fact is that most victims of medical malpractice never file a law suit.

More Than Half of Medical Mistakes "Preventable"

A famous research study conducted by Harvard Medical School determined that more than half of all injuries caused by medical management (in other words, not caused by the patient’s initial injury or disease) were preventable, and another quarter of those incidents were caused by negligence.

24,000 Canadians Die Every Year

In May 2004 the Canadian Medical Association published: "The Canadian Adverse Events Study: the incidence of adverse events in hospital patients in Canada". The report confirmed findings of similar studies in the United States, Australia, the United Kingdom, Denmark and New Zealand.

The Canadian study concluded:

• As many as 24,000 patients die each year due to “adverse events” (code words for a bad result).

• 87,500 patients admitted annually to Canadian acute care hospitals experience an adverse event.

• 1 in 13 adult patients admitted to a Canadian hospital encounter an adverse event.

• 1 in 19 adults will potentially be given the wrong medication or wrong medication dosage.

• 37% of adverse events are “highly” preventable.

• 24% of preventable adverse events are related to medication error.

A report by the Canadian Institute for Health Information (CIHI) indicated that nearly one quarter of Canadian adults (5.2 million people) reported that they, or a member of their family, had experienced a “preventable adverse event” (medical error).

Only a Few Law Suits Filed Each Year

According to the annual report of the Canadian Medical Protective Association (the CMPA), the group that defends most lawsuits filed against doctors in Canada, about a 1000 legal actions are commenced against doctors in Canada each year.

But the Canadian Medical Association says that 24,000 people die each year due to medical errors and more than 87,000 patients in Canada experience an adverse event.

Why Don't More Canadians File Medical Malpractice Claims?

So why aren't their more medical malpractice law suits in Canada?

Part of it certainly has to do with the difference in attitude between Canadians and Americans when it comes to litigation. We just aren't as likely to file a lawsuit as Americans are.

It certainly isn't because the CMPA is settling the claims of victims before they file their lawsuits. Their annual report shows they settle less than 500 claims per year.

Is it because they can't find a lawyer willing to take on a complicated and expense medical malpractice claim? Perhaps. Medical malpractice claims are complicated, time consuming, risky and very expensive. There are few lawyers willing to devote the time and money it takes to prosecute medical malpractice claims.

I believe that a bigger problem is that most patients don't know they have been the victim of negligence!

There are no national standards regarding the disclosure of medical errors to patients.

Related posts:

Majority of Infant Deaths Due to Medical Error Preventable

Medical Malpractice Kills More Than 24,000 Canadians Each Year

Overworked Nurses Causing Medication Errors

Continue reading "How Often Does Medical Malpractice Happen in Canada?" »

September 5, 2008

What Do I Have to Prove to Win My Medical Malpractice Case in Canada?

When someone dies or is seriously injured in a hospital, or after receiving medical care, it is human nature to feel that someone is responsible, that someone is to blame.

But from a legal standpoint, it may not actually be possible to prove that someone is liable (legally responsible) for the death or injury.

There are four things that you have to prove in order to win your medical malpractice case in Canada:

Standard of Care:

Doctors, nurses and other health care workers are human. They are not expected to be perfect. But they are expected to be reasonably competent.

You will need expert evidence to show what standard of care is expected of a reasonably competent doctor (or nurse). For example, doctors in the same specialty as the negligent doctor must be willing to testify that the conduct of the doctor fell below accepted standards.

Breach of the Standard:

You will need expert evidence to prove that the doctor (or nurse) did not meet the standard expected of a reasonably competent doctor (or nurse).

In other words, did they do something that they should not have done, or did they fail to do something that they should have done?

Making a simple mistake or getting a bad result is not enough – you must prove that it was a significant error which directly led to your injury.

Causation:

Not only must you prove that the doctor (or nurse) breached the standard of care; you must also prove that the breach actually caused your injury.

It is possible that a doctor can be negligent (breach the standard of care), but the negligence isn’t what caused the injury

For example, failing to wear surgical gloves during an operation is a breach of the standard of a competent surgeon. But it is not likely to cause you to suffer a stroke during your operation.

On the other hand, failing to wear gloves may very well cause or contribute to the surgical wound becoming infected, leading to serious injury or death.

Damages:

Finally, you have to prove what the financial consequences of the injury has been so that the court can award damages for pain and suffering, and any income loss or medical expenses as a result of your injury.

For example, you will need experts like physical medicine specialists to prove the extent of your injuries; vocational experts to establish how your injuries affect your ability to work; and actuarial or economic experts to calculate your past and future income loss and future pension loss.

Continue reading "What Do I Have to Prove to Win My Medical Malpractice Case in Canada?" »

July 29, 2008

"Incompetent" Doctor Ordered to Undergo Retraining Appeals: Cape Breton

Cape Breton Doctor Incompetent

The College of Physicians and Surgeons of Nova Scotia found Dr. Stani Osif guilty of professional misconduct and professional incompetence under the Nova Scotia Medical Act. I posted about the charges a couple of months ago: Cape Breton Doctor so "Incompetent" no Training Program can Help: College of Physicians.

Osif Ordered to Retrain

I see that the College has ordered Dr. Osif to undergo retraining and pass the Canadian College of Family Physicians certification test. According to a report by the CBC, if Osif doesn't complete the retraining, and pay the College $200,000.00 in legal fees, her license to practice medicine in Nova Scotia will be revoked. You can read the entire College decision here.

Osif Appeals

The CBC has now reported that Dr. Osif has appealed the College's decision to the Nova Scotia Court of Appeal.

Accuses Witnesses of Perjury

Osif has accused witnesses that testified at her hearing of giving false testimony. In other words, she has accused the people that testified against her of committing perjury!

Public Doesn't Understand Role of College

I found some of the comments posted on the CBC site interesting (and unfortunate) because they confirm the misunderstanding that the public has about the oversight/supervision that doctors have in Nova Scotia (and the rest of Canada).

One reader commented:

Maybe the College of Physicians and Surgeons of Nova Scotia should be censored by the government for not intervening sooner. How could something this harmful have gone unknown for so many years. Time for the College to be replaced too.

The College of Physicians and Surgeons in each province is the body that is responsible for licensing and disciplining doctors. Over the past 18 years that I have spent representing victims of medical malpractice, I have found that most members of the public misunderstand the role of the College.

Once a doctor is licensed to practice medicine they are assumed to be competent by the College unless shown otherwise. But the College does not engage in ongoing oversight of doctors. The College does not engage in ongoing testing of doctors to ensure that their skills are up to date. Most important; the College does not initiate disciplinary investigations unless it receives a complaint!

Patients Responsible

In other words, a great deal of the responsibility for the oversight and discipline of doctors lies with patients.

Patients Not Told About Medical Errors

The problem with this approach is that there is no legislation, no law, in Nova Scotia that requires doctors and hospitals to tell patients when they have made a mistake, or when the patient has been the victim of medical error.

Furthermore there are no national standards for disclosure of medical errors.

In fact, every province in Canada has legislation that says that Hospital's internal investigations into medical errors are privileged and confidential. In Nova Scotia, Section 60 (2) of the Evidence Act reads:

(2) A witness in any legal proceeding...is excused from answering any question as to any proceedings before, or producing any report, statement, memorandum, recommendation, document or information of, or made by

(a) a research committee of a hospital;

(b) a hospital committee established for the purpose of studying or evaluating medical or hospital care or practice in a hospital; or

(c) a research committee recognized by the Minister of Health and Fitness and approved for the purpose of this Section,

and that is used in the course of, or arising out of, any study, research or program carried on by a hospital or any such committee for the purpose of education or improvement in medical or hospital care or practice.



Thousands Die Every Year

According to the Canadian Medical Association Journal, medical errors kill more than 24,000 Canadians each year.

So if the patient has died, or if the patient or his or her family isn't told that their doctor made a mistake, how are the patients or their family supposed to know if they have the grounds for a complaint to the College of Physicians and Surgeons?

Doctor Filed Complaint

The Osif case is unique because the original complaint that launched the investigation came from one of her colleagues, another doctor. In my experience, that is very unusual. I expect many doctors feel that if they made a mistake they wouldn't want their colleagues to be filing complaints about them. Doctors are, understandably, reluctant to file complaints about their co-workers.

How Do We Improve Health Care?

So what can be done to improve health care by improving the oversight of doctors? In my view there has to be legislation that requires hospitals, doctors and nurses to report medical errors to patients.

I have no doubt that this type of legislation would be vigorously opposed by the medical profession (or I should say, by their lawyers). But if the ultimate goal is improving health care and patient safety then shouldn't everyone, patients included, have all the facts?

What do you think?

Continue reading ""Incompetent" Doctor Ordered to Undergo Retraining Appeals: Cape Breton" »

July 11, 2008

Altered Medical Files: "I think my records have been tampered with!"

Altering medical records does not happen as often as it appears to happen on television or in the movies. However, it happens enough that experienced medical malpractice lawyers develop a sense of when further investigation into the legitimacy of a medical record or chart is warranted.

One of my favourite movies of all times is The Verdict with Paul Newman. I love the scene where he finally realizes that he can prove that the defendant doctor altered the medical files of the woman who was left in a coma because of the doctor’s negligence.

Lessons Learned From Past Cases:

Over the past 18 years, I have learned some lessons about when to suspect that a medical file may have been altered.

Notes on one report, not on another:

In one case I was involved in the specialist’s report that was received by my client’s family physician did not have (exculpatory) handwritten notes that appeared in the report in the specialist’s file.

Lesson:
Look for all copies of the record and compare them.

Different Versions of reports:

In one case the surgeon dictated three different versions of the operative report. The family doctor received the first version days after my client’s surgery. After my client’s condition deteriorated, he dictated a second version (which was found in the Hospital chart). After my client became comatose and was transferred to another hospital for corrective surgery he dictated a third version of the report which was in his office copy of my client’s chart.

Lesson:
Get the records, and get them fast.

Were they working?

In a claim involving allegations of nursing negligence, the nursing notes contained statements that the patient’s condition had been communicated to the attending physician. However the date of the entry was for a day that the nurse in question wasn’t working!

Lesson:
Compare staffing sheets/time cards with the medical chart to detect entries/notes by staff members that were not present/on duty that day.

Medication Errors:

Medication errors are a common mistake among nurses who are overworked or inexperienced.

In a claim involving a fatal overdose, the nursing notes indicated that the deceased had received the proper dosage of medication. However, the medication administration records, which were not supplied by the hospital when the chart was originally requested, showed that the medication had been administered to the patient twice.

Lesson:
Compare the medication administration records with the nursing notes and physicians orders.

Destroying Records:

In an anesthesia negligence claim the anesthesiologist tore up the original anesthesia record and prepared a new record with different data. One of the nurses involved in the operation retrieved the original record and scotch taped it together.

Lesson:
Interview everyone, including retired employees.

White out = Suspicious Records

In a birth injury claim two of the babies APGAR scores had been whited out and changed from a 0 to a 2 (normal).

Change the Numbers - Change the Result:

In a fatality claim the deceased’s blood pressure reading had been changed from 170/90 to 120/80 by using a different colour pen to alter the numbers 7 and 9. The change couldn’t been seen on the photocopy of the patient’s chart, but was reasonably obvious on examination of the original chart.

Lesson:
Whenever I have a reasonable suspicion that the medical files have been altered, I make an appointment to attend at the Hospital or the doctor’s office to view the original chart.

What to Look For:

Some “red flags” that I look for, based on past experience, that may indicate the possibility of altered medical records are:

• Crowding or squeezing entries above a signature, or between lines;
• Erasures, crossed out entries or white-out corrections;
• Changes in slant of handwriting;
• Using different pens or computer typeface to write one entry;
• Notes on different dates in the same colour ink from same pen;
• Notes in different colour ink (different pen) in the same chart note;
• A typed entry following handwritten entries, or vice versa;
• Missing original records that have replaced by photocopies;
• Entries that are self-serving;
• Half sheets instead of the standard size page (page cut in half);
• Additional notes on the original document, not on copies received by client;
• An unusually late date of dictation of a consult report;
• Any handwritten entry made by someone who erred significantly in treatment.


Continue reading "Altered Medical Files: "I think my records have been tampered with!"" »

June 4, 2008

No "Wrongful Life" in Canada: Supreme Court

In Canada there is no such thing as a claim for "wrongful life". In a ruling released last week, the Supreme Court of Canada denied leave to appeal a Court of Appeal decision that confirmed that Canadian law does not recognize the tort of "wrongful life" as a legitimate cause of action.

In Hergott, et al. v. Bovingdon the defendant doctor prescribed a fertility drug for the plaintiff mother. The doctor did not explain the risks of taking the drug to the mother.

The drug caused the mom to become pregnant with twins. Unfortunately, the twin pregnancy caused a premature birth, and the premature birth caused the twins to be born with severe disabilities.

At trial the jury found that the doctor was negligent in failing to explain the risks of the drug to the mother. In other words, the mom did not provide her "informed consent" to take the drug.

The trial judge also ruled that the doctor owed a duty of care to the twins, which entitled them to recover damages for their injuries. The judge awarded compensation to the parents for the cost of having to care for their severely disabled children after they reached the age of 18.

The Ontario Court of Appeal ruled that twins' claims were "wrongful life" claims, and therefore barred by Canadian law.

The Supreme Court of Canada denied leave (permission) to appeal the decision.

What does it mean?

The Supreme Court has essentially upheld the status quo on the type of claims that can be brought to court. The decision arguably has opened the door to the amount of damages that can be claimed in serious injury cases.

As the law stands now there are three types of claims that typically arise out of catastrophic birth injury cases.

Wrongful Life:

These claims are typically brought where a medical procedure for sterilization or abortion fails and a child is born as a result. Or, as in the Hergott v. Bovington cases, where a child is born with a severe disability as a result of negligence. The claim is typically brought by the child claiming compensation for the harm caused by their birth. In Canada, these types of claims have usually not succeeded. The courts have stated that a claimant cannot claim to have suffered harm as a result of their birth. In other words, the courts assume that it is better to be alive than never to have been born. The Supreme Court of Canada's decision not to hear the twins appeal in the Bovington case confirms that this remains the state of the law in Canada.

Wrongful Birth:

These types of claims are typically brought by parents of children that have been born with an injury. Typically the injury is the result of post-conception negligence by a doctor. For example where a child is born with Erbs Palsy, stretch injury to the brachial plexus that happens during a baby's delivery. These types of claims have generally succeeded.

Wrongful Pregnancy:

These types of claims are brought by parents on behalf of children. The claims typically involve an allegation of negligence resulting in an unplanned pregnancy due to a failed sterilization procedure. For example see the recent decision from New Brunswick where a mom was awarded $90,000.00 after she had a child as a result of a failed tubal ligation.

Expanding Recoverable Damages?

Less attention has been paid to the issue of the parents claim for the cost of caring for the twins after they reached the age of majority. The doctors lawyers argued that the Supreme Court of Canada decision in Krangle v. Brisco means that the defendant does not have to pay for the cost of a disabled child once the parent is not legally obliged to care for the child.

The Ontario Court of Appeal emphatically rejected this argument.

The trial judge rejected the appellant’s submission that Krangle stands for the proposition that the absence of a legal obligation on the parents to support the children after age eighteen is a bar to recovery. I agree with the trial judge. In Krangle, the child was not going to be supported by the parents once he was an adult. Therefore, they would not be incurring that cost. This was not because they were not entitled to incur the cost had they wished but because the group home was in the child’s best interest. The issue in that case was whether the parents would be obliged to reimburse the state for the cost of the child’s care, which turned on their legal obligation to provide support. If they had been responsible to reimburse the state, they would be seen as likely to incur the cost of future care and the court would have awarded damages to cover this cost.

I have represented parents whose children have suffered catastrophic injuries. In many cases the parents are overwhelmed by the costs and pressures of caring for a severely disabled child. As a result, their future care plan often involves placing the children in provincially funded care or group homes after the child reaches the age of majority.

The Bovington decision means that parents can make a claim for the extraordinary costs of caring for a disabled child, once they become an adult.

As the Court of Appeal put it:

A group home could only provide for their physical care but not their emotional well-being. Nor would the group home be able to give them intellectual stimulation and pleasure.

So there you have it. The Supreme Court holds the line on wrongful life but clears the way for claims for the costs of caring for a disabled adult child so that they can continue to receive the love and emotional support that only a parent can provide.

Continue reading "No "Wrongful Life" in Canada: Supreme Court" »

May 30, 2008

Officials told to Turn a Blind Eye to Cancer Test Results: N.L.

Moira Hennessey, an assistant deputy minister in Newfoundland and Labrador's health department has told the Cameron Inquiry that she was ordered not to question confusing figures about cancer test results according reports from the CBC.

“Forgot” to tell Bosses about Problems

She also testified that she “forgot” to pass on information on problems with cancer screening results to her bosses.

Ordered to Alter Records

Hennessey told Justice Margaret Cameron she altered a ministerial briefing note on the orders of her boss, the deputy minister of Health John Abbott.

Abbott had ordered Hennessy to change briefing notes to indicate that recommendations to fix the pathology lab had been implemented when in fact they had not.

"The note came back I can still see it, actually. The note came back to me with the words crossed, like slashed, through it," she said.

Error in Judgement

Hennessey denied any attempt to cover up problems in the department. When asked about why she had not told the Minister of Health the correct information, Hennessey responded:

"Regrettably, that was an error in judgment on my part,"

Didn’t Disclose Hundreds of False Test Results

Hennessey did not tell her boss that test results showed that more than 300 breast cancer patients had been given incorrect testing results.

It is hard to believe that bureaucrats could put the lives of hundreds of people at risk, simply because they didn't want to face the political fall out. Well...perhaps it isn't so hard to believe.

Continue reading "Officials told to Turn a Blind Eye to Cancer Test Results: N.L." »

May 29, 2008

Disgraced Pathologist Menon “Sorry” but Blames Everyone in Sight

Dr. Rajgopal Menon, the dismissed pathologist at the centre of a public inquiry into botched cancer screening tests and autopsies in New Brunswick, apologized to his former patients yesterday for any errors he may have made.

Menon "Apologizes"

“I wish to sincerely apologize to any patient if I have made an error in reading their pathology slides. I was not aware of any errors in my work."

More Problems Than Previously Reported

The expert hired to review Menon’s work, Dr. Rosemary Henderson testified yesterday that she found 14 incorrectly diagnosed cancer tests done by Menon in just a two year period. More than the 6 or 7 errors that had previously been reported.

Menon Casts Blame on Others

But today Menon changed his tune. He blamed his bosses whom he said “were out to get him” according to CBC reports.

Notes "Planted"

Menon claimed that signed notes of a 1998 meeting where Menon was told to clean up his act or face dismissal were fake.

"The meeting never happened," Menon insisted. "I think the notes were planted."

Menon "Blackmailed"

He claimed that New Brunswick’s College of Physicians and Surgeons tried to blackmail him into resigning.

"Maybe, in hindsight, it would have been better," Menon said when asked what he thought of the offer. "But that is like blackmail for me. . . . That is not professional medicine."

Hospital Was The Problem

Menon said the problem was not with him but the Hospital where he worked:

"As far as I was concerned, it was the administration," he said.


Doctor "Out To Get Him"

When questioned about a letter from another doctor expressing concerns about Menon’s competency, Menon told the inquiry:

"He wanted my job and I didn't want to give it," Menon said. "That was the only problem."

Everyone to Blame But Himself

You have to wonder what colour the sky is in the fantasy world that Menon lives in. It appears that the only people Menon didn’t blame for his incompetence are the cancer victims who were not able to receive treatment because he botched their test results telling them they were cancer free!

How many people have died or have not received proper medical treatment because of Menon? He obviously has not read my previous post Doctors: Say "I'm Sorry" and don't get sued!

What do you think? Is Menon incompetent or an innocent victim of an incredible smear campaign?

Continue reading "Disgraced Pathologist Menon “Sorry” but Blames Everyone in Sight" »

May 28, 2008

Cape Breton Doctor so "Incompetent" no Training Program can Help: College of Physicians

Dr. Stani Osif of Cape Breton has been found guilty of "incompetence and professional misconduct" in a number of incidents at Northside General Hospital in North Sydney between 2003 and 2006 according to a story in today's Chronicle Herald.

In June 2007 the College of Physicians and Surgeons of Nova Scotia suspended Dr. Osif's license to practice medicine.

802725_aeskulap_sign%5B1%5D.jpg

In January 2008 the College ruled that Dr. Osif was guilty of incompetence and professional misconduct.

The College is now holding a hearing to determine how Osif should be disciplined.

In cases where the College determines that there is evidence of professional misconduct, incompetence, or conduct unbecoming, the complaint is referred to a hearing committee.

The hearing process is like a mini-trial, with witnesses providing sworn evidence and legal arguments from a lawyer acting for the College and a lawyer representing the doctor.

Discipline can range from dismissal of the complaint to removal of the doctor from practice.

The panel holding the disciplinary hearing heard argument yesterday that Osif's medical skills are so lacking there may not be a training program adequate to bring her up to standards.

The Herald reported that:

College lawyer Marjorie Hickey said the gravity of the incidents, which included a second potentially life-threatening misdiagnosis, called for further sanctions.

The finding of professional misconduct indicated a deliberate disregard or indifference to patients’ well-being, Ms. Hickey said.

"We’re not dealing here with a case of one isolated incident . . . in an otherwise unblemished career..."

Were you a patient of Dr. Osif? What do you think should happen?

Continue reading "Cape Breton Doctor so "Incompetent" no Training Program can Help: College of Physicians" »

May 27, 2008

Man Set on Fire During Heart Surgery Sues Doctor: Vernon B.C.

Robbin Reeves underwent a liver transplant surgery at the Vancouver General Hospital in February 2006. He woke up with severe burns to his neck and shoulder.

Reeves has filed a medical malpractice claim in which he claims that during the surgery his heart stopped and doctors performed an open cardiac massage. Reeves’s lawsuit claims doctors tore one of the chambers of his heart and, in the rush to prepare for the emergency surgery, alcohol on his neck and shoulder caught fire, leaving him with serious burns.

You can read more details here.

May 26, 2008

Disgraced Pathologist Menon's Work had 'Big Problems': New Brunswick

A review of surgical pathology practices at the Miramichi Regional Hospital found there were "big problems" with the work of Dr. Rajgopal Menon according to a report in the Chronicle Herald today.

The latest revelation in the ongoing inquiry into the botched cancer screening fiasco in New Brunswick came yesterday.

Dr. Rosemary Henderson, medical director of the Queen Elizabeth Hospital in Charlottetown, and pathologist, Dr. Bruce Wright, conducted a review of Menon's cases at the request of New Brunswick's College of Physicians and Surgeons more than a year ago.

Henderson and Wright's report identified problems with Menon's work including:

Slow turnaround time;

Incomplete work;

Failure to trim surgical pathology specimens properly, and

Failure to disclose his visual problems.

The report was particularly concerned with Menon's failure to disclose his visual problems.

"Given the importance of vision to a pathologist, the college may wish to consider whether or not this represents an ethical and/or legal failure to disclose a significant medical problem,"

Related posts relating to the Menon Inquiry:

Health Authority Knew About Pathologist's Problems: Miramichi

Deputy Minister Received Complaints about Disgraced Pathologist: New Brunswick

Negligent Cancer Screening Put Patients at Risk: Miramichi Hospital

Negligent Cancer Screening in New Brunswick May Lead to Criminal Charges and Medical Malpractice Claims


Continue reading "Disgraced Pathologist Menon's Work had 'Big Problems': New Brunswick" »

May 22, 2008

New Brunswick Court Orders Compensation for Mother of Baby Born after Failed Tubal Ligation

The National Post has reported that a mother from New Brunswick who became pregnant after a failed tubal ligation has been awarded $90,000.00 in compensation.

The woman, who was 26 years old at the time of the procedure, had three children to support, her husband was seriously ill, his business was failing and the couple had lost their house and car. To prevent the expense of further additions to the family, she had a tubal ligation, a permanent sterilization procedure thousands of Canadian women undergo every year.

After she became pregnant, she filed a medical malpractice lawsuit against the doctors that performed the procedure and the Hospital where the procedure was performed.

Madam Justice Paulette Garnett of the New Brunswick Court of Queen's Bench concluded the hospital had failed to properly maintain the tubal-ligation equipment, leading to the failure.

Justice Garnett acknowledged how suing for the birth of a healthy child might be perceived:

"Sometimes the birth of a child is not a blessing. It is often a burden," Justice Garnett wrote in her judgment.

"Medical science has made it possible for families to limit the number of children they have, and, in this country, the vast majority of them do ... The fact that (she) now treasures her unplanned child is irrelevant. It is relevant that she has to feed, clothe and educate her."

You can read the entire decision here.

Continue reading "New Brunswick Court Orders Compensation for Mother of Baby Born after Failed Tubal Ligation" »

May 20, 2008

Medical Apologies: Who benefits when doctors say: "I'm Sorry"?

In a story related to my post yesterday, I came across a story on Radio Boston that aired a few months ago that explores the issue of medical apologies.

It is an interesting report and worth listening to. You can listen to the whole story here.

Continue reading "Medical Apologies: Who benefits when doctors say: "I'm Sorry"?" »

May 19, 2008

Doctors: Say "I'm Sorry" and don't get sued!

Apologize and don't get sued. The New York Times has reported a story that will come as no surprise to medical malpractice lawyers or Malcolm Gladwell.

Doctors who apologize for their mistakes get sued far less often than doctors who refuse to acknowlege they have done anything wrong.

The Times reports:

For decades, malpractice lawyers and insurers have counseled doctors and hospitals to “deny and defend.” Many still warn clients that any admission of fault, or even expression of regret, is likely to invite litigation and imperil careers.

A few hospitals have bucked the "circle the wagons and fight" mentality.

By promptly disclosing medical errors and offering earnest apologies and fair compensation, they hope to restore integrity to dealings with patients, make it easier to learn from mistakes and dilute anger that often fuels lawsuits.

A simple idea; taking responsibility for your actions.

At the University of Michigan Health System, one of the first to experiment with full disclosure, existing claims and lawsuits dropped to 83 in August 2007 from 262 in August 2001.

I have been representing victims of medical malpractice for 18 years. In almost every case, the patient came to me because they were frustrated by the lack of information they were receiving from their doctor, or the hospital.

What do you think? If your doctor apologized for his or her mistake; if you truly belived they were sorry; would you be less likely to sue?

Continue reading "Doctors: Say "I'm Sorry" and don't get sued!" »

May 16, 2008

Overworked Nurses Causing Medication Errors

Nurses who worked in hospitals that were understaffed, had inadequate medical resources and who had high rates of overtime were most likely to report that patients had been the victims of medication mistakes.

Nurses Stretched to the Limit:

Statistics Canada released a report today that says nurses working overtime or where staffing and resources were stretched were more likely to report a patient had received the wrong medication or dosage.

CTV reported some of the results of the study:


Among nurses who usually worked overtime, 22 per cent reported medication error, compared with 14 per cent of those who did not work overtime.

Among registered nurses whose working relations with physicians were least favourable, 27 per cent reported medication error, compared with 12 per cent among those whose working relations with physicians were most favourable.

Nurses with low support from co-workers were significantly more likely to report medication error than were those with more support. The study pointed out that low co-worker support might result from inadequate staffing as busy nurses may be less able or willing to help co-workers.

Just under a third (32 per cent) of nurses with low job security reported medication error, compared with 19 per cent with better job security.

About 28 per cent of those who said they were dissatisfied with their job reported medication error, compared with 18 per cent of those who were satisfied.

Downsizing Effecting Healthcare:

CBC News noted:

"In the view of many Canadian nurses, the restructuring of hospitals and downsizing of the nursing workforce that has taken place since the early 1990s has had a major impact on the quality of patient care," reads the study. "It is hoped that this research will inform initiatives aimed at reducing risks to patient safety in Canadian hospitals."

Medication Error is a HUGE Problem:

According to the American Public Health Association more than 25% of elderly patients suffer prescription errors.

24% of Canadian Adverse Events due to Medication Errors:

A report published in the May 25, 2004 edition of the Canadian Medical Association Journal entitled: "The Canadian Adverse Events Study: the incidence of adverse events in hospital patients in Canada" found that 1 in 19 adults will be given the wrong medication or wrong medication dosage and 24% of preventable adverse events were related to medication error.

No Standards to Report:

Part of the problem may be due to the fact that in Canada there are no national standards for disclosure of medical errors.

I have already posted about how medical malpractice kills more than 24,000 Canadians each year.

The average age of nurses in canada is rising and the problem is only going to get worse as overworked nurses burn out , retire or simply leave the profession.

So what can be done? More money to train nurses? Allowing foreign trained health professionals to practice in Canada? Use nurse practictioners to replace primary care physicians?

What do you think?

Continue reading "Overworked Nurses Causing Medication Errors" »

May 15, 2008

Drug Spending in Canada Consuming Health Resources

Total drug spending in Canada is estimated to have reached $26.9 billion in 2007, according to figures released today by the Canadian Institute for Health Information (CIHI).

The report states that since 1985 drug expenditure has consumed an increasing share of Canada's health care dollar. In 2007, spending on drugs is expected to have reached $26.9 billion, representing 16.8% of total health care spending. Among major categories of health expenditure, drugs account for the second largest share, after hospitals.

This represents an increase of approximately $2 billion over 2006.

With our population getting older the need for prescription medication is only going to increase. It stands to reason that in a few years drug spending is going to consume huge portions of provincial health care dollars.

What can we do about it?

I think the only solution is a radical change in our method of health care delivery. Currently our health care system focusing on treating patients once they have become ill. In other words, when it is most difficult and most expensive to treat the problem.

We need to change the focus of health care to preventive medicine and promoting healthy living. In other words, making sure Canadians don't get sick (or get sick less often) so that they won't need expensive medical care to treat acute medical emergencies.

What do you think?

May 14, 2008

Do Medical Malpractice Lawsuits Improve Patient Safety

I found a fascinating lecture (at least fascinating to medical malpractice lawyers) posted on You Tube the other day.


Dr. Brennan, Professor of Law and Public Health at the Harvard School of Public Health is one of the United States' leading experts on medical malpractice and patient safety. Dr. Brennan authored the famous Harvard Medical Practice Study.

Dr. Brennan considers a case study illustrating whether or not the American medical malpractice system improves patient safety.

Brennan believes that existing efforts aimed at preventing medical malpractice and improving quality of medical care are not effective.

Advocates of "reforming" the medical malpractice system lobby for limits to the ability to sue, capping the amount of compensation victims can receive and limiting the fees that medical malpractice lawyers can charge.

Brennan's opinion is, to use a medical analogy, that these "reforms" treat the symptoms of the problem rather than treating the illness of negligent or sub standard medical care.

Medical malpractice kills more than 24,000 Canadians each year.

For example:

• As many as 24,000 patients die each year due to “adverse events” (doctor speak for "something bad happened").


• 87,500 patients admitted annually to Canadian acute care hospitals experience an adverse event.


• 1 in 13 adult patients admitted to a Canadian hospital encounter an adverse event.


• 1 in 19 adults will potentially be given the wrong medication or wrong medication dosage.


• 37% of adverse events are “highly” preventable.


• 24% of preventable adverse events are related to medication error.

• The most common areas for an adverse event to occur was surgery followed by medicine related errors.

Nearly a quarter of Canadian adults (5.2 million people) report that they, or a member of their family, have experienced a preventable adverse event (lawyer speak for medical malpractice) according to a report released by the Canadian Institute for Health Information.

Despite these numbers only 2% of Canadian medical malpractice victims receive compensation!

If you or a member of your family have suffered an injury that you think may be due to medical malpractice, feel free to contact me for a free copy of my book The Consumers Guide to Medical Malpractice Claims in Canada: Why 98% of Canadian Medical Malpractice Victims Never Get a Penny in Compensation!

Continue reading "Do Medical Malpractice Lawsuits Improve Patient Safety" »

May 8, 2008

Health Authority Knew About Pathologist's Problems: Miramichi

The public inquiry investigating concerns about botched cancer screening tests by former pathologist Rajgopal Menon heard testimony today of concerns about the disgraced pathologist.

Jeff Carter, director of medical services at the Miramichi Regional Hospital, testified he heard concerns about Menon beginning in 2002.

Carter said while he was the regional risk management co-ordinator at the hospital in 2002 he heard complaints about Menon including:

Slow turn around times completing tests.

Complaints that hundreds of Menon's reports were incomplete.

Menon averaged 11.4 days to complete tests that took other pathologists 3.6 days.

Carter testified once he started to look into Menon's work he found there were concerns on record about the pathologist that dated back to 1998.

The New Brunswick Health Authority is re-examining nearly 24,000 cases he handled between 1995 and 2007.

This only a day after officials with New Brunswick's Health Department testified they had no idea there were concerns about Menon's work in Miramichi before the suspension of his licence last year. Lise Daigle, director of hospital services, testified she worked closely with lab consultants for years, but no issues were brought to her attention about the Miramichi lab and the work of Dr. Rajgopal Menon.

Ms. Daigle testified the day after the former Deputy Minister of Health testified that she heard complaints about Menon but she didn't think Menon was "incompetent".

If Ms. Daigle's testimony is true, it begs the question: Who was more incompetent, Menon or officials at the Health Department? What do you think?


Continue reading "Health Authority Knew About Pathologist's Problems: Miramichi" »

May 6, 2008

Deputy Minister Received Complaints about Disgraced Pathologist: New Brunswick

The first witness at an inquiry into flawed pathology services at a New Brunswick hospital testified that she received complaints about Dr. Rajgopal Menon, the pathologist whose botched cancer screening test results lead to the inquiry.

But former Deputy Minister of Health apparently did not consider the complaints to be serious. The Canadian Press has reported that Nora Kelly testified that:

... there were general comments from his colleagues about his slow work habits, his tardiness and missing slides, but no one suggested his work might be sub-standard.

"They didn't like the way he operated, but they never said that he was incompetent," Kelly told commissioner Paul Creaghan, a retired judge.

You can read more about the situation in previous posts:

Negligent Cancer Screening Put Patients at Risk: Miramichi Hospital and
Negligent Cancer Screening in New Brunswick May Lead to Criminal Charges and Medical Malpractice Claims.


Kelly's testimony hints at larger problems to come. She said there is a critical shortage of pathologists across the country. "Maybe 30 pathologists" graduated last year, and there has never been a year when more than 50 entered the system.

"It's not getting any better. Everybody is getting older. . . . There's going to come a point where, for patient safety, we'll not be able to offer certain services. Nobody wants to hear about this or talk about it, but frankly I'm convinced that may very well happen."

802725_aeskulap_sign%5B1%5D.jpg


With health care spending consuming an ever increasing share of provincial budgets, a world wide shortage of medical specialists, and an aging population in need more medical care it appears that cracks are starting to appear in Canada's health care system.

What can we do to fix the problem? More money for medical schools to train doctors? Allow more foreign trained doctors to practice in Canada? Privatization of parts of the health care system? What do you think?

April 29, 2008

Breast Cancer Screening Fiasco Continues in Newfoundland

Newfoundland's Eastern Health Board is trying to gag it's employees by getting them to sign confidentiality agreements.

George Tilley the former CEO of Newfoundland's largest health board didn't tell his counterparts at the province's other health boards about breast-cancer testing errors until two months after he discovered them.

His excuse? He was waiting the lab to call him back!

To tell him what? How about: "Hurry up and do something dummy, people are dying!"

Tilley has testified he would "do a lot of things differently" in hindsight.

Here's hoping he is never put in a position where he has the power to make that kind of decision.

The inquiry has already heard testimony that senior members of Premier Danny Williams office knew about the botched cancer tests for almost 3 months before the information was made public.

February 14, 2008

Negligent Cancer Screening Put Patients at Risk: Miramichi Hospital

More on the cancer screening fiasco unfolding in New Brunswick. The Miramichi Hospital claims in a lawsuit filed by the disgraced pathologist that is the subject of potential criminal charges that there were issues about the doctors work as far back as 1998.

Dr. Rajgopal Menon was suspended by New Brunswick's College of Physicians and Surgeons following a complaint from the Miramichi Regional Hospital Authority about Menon's "deficient practice" involving "erroneous interpretations of surgical specimens."

Menon sued the Hospital over the allegations. In a defence filed by the Hospital Authority officials claims that Menon's:

"lack of professional standards have resulted in patients being placed at risk as well as other physicians, and in particular surgeons, who must rely on (him) for accurate and timely pathological diagnosis."

The Hospital's allegations are a double edged sword. If the facts in the defence are correct, it may mean that cancer patients who have been "placed at risk" (not able to receive timely treatment) due to Menon's "lack of professional standards" may have a potential medical malpractice claim against the Hospital Authority for failing to take proper steps to ensure patient safety when it became aware of the risks due to Menon's "lack of professional standards".

The Canadian Press has reported the story of one man whose father died of cancer in 2007 just weeks after the disease was discovered by his doctors in Tracadie, New Brunswick.

The man's son, Roger Vautour:

...was told by officials at the Miramichi Hospital that laboratory tests on his father in 2003 were handled by Dr. Rajgopal Menon and will be part of a comprehensive review of the pathologist's work.

The "comprehensive review" is going to involve over 15000 test results from potential cancer patients stemming back more than a decade! The potential liability for the doctor, and the Health Authority, is difficult to fathom.

Continue reading "Negligent Cancer Screening Put Patients at Risk: Miramichi Hospital" »

February 12, 2008

Negligent Cancer Screening in New Brunswick May Lead to Criminal Charges and Medical Malpractice Claims

A New Brunswick doctor faces potential criminal charges and possible liability for medical malpractice as a result of an investigation into negligent cancer screening.

Pathologist Dr. Rajgopal S. Menon was suspended by New Brunswick's College of Physicians and Surgeons last year after a complaint from the regional health authority that he put patients at risk by missing instances of cancer following evidence of negligence in breast and prostate cancer biopsies performed by Menon in 2004 and 2005.

The latest review is going to include 15,000 cancer screening tests performed by the doctor stretching all the way back to 1995.

The Canadian Press reported that Health Minister Mike Murphy has asked the RCMP to determine if there was criminal negligence in the doctor’s handling of the tests:

"It’s as serious as it gets," Murphy told a news conference in Fredericton.

"It is very difficult to speculate as to whether anyone has lost their life, but it would not be unlikely. . . . We do know of a number of cases where he completely missed the diagnosis and rendered it benign when in fact it was malignant."

If the doctor's faulty test results caused a misdiagnosis of cancer, a delay in receiving proper treatment, or death as a result of misdiagnosis Menon is sure to be facing claims from cancer victims seeking compensation for medical malpractice.

The problem is that the time limit in New Brunswick for filing claims for medical malpractice is two years from the date of the negligent act. If the misdiagnosis took place more than two years ago, where does that leave cancer victims' and their families?

The answer may be found in the decision of the Supreme Court of Canada in Novak v. Bond and the Ontario Court of Appeal in Urquhart v. Allen Estate.


Continue reading "Negligent Cancer Screening in New Brunswick May Lead to Criminal Charges and Medical Malpractice Claims" »

February 7, 2008

Majority of Infant Deaths Due to Medical Error Preventable

Medical errors (Iatrogenic events) among newborns are common and often preventable according to a recent article in the journal Lancet.

In the report To Err is Human, medical errors were estimated to have caused 44,000 deaths in the U.S. every year. A similar Canadian study estimated medical errors kills 24,000 Canadians each year.

However, available reports have focused mainly on adults and (older) pediatric patients, not newborn babies, who are a high-risk group.

The authors of the study found that the main risk factors for new borns who experienced a medical error were low birthweight and gestational age; length of hospital stay; a central venous line; mechanical ventilation; and support with continuous positive airway pressure.

"This study allows the cause, severity, and preventability of iatrogenic events in neonatology to be defined," the authors said. "A third of all iatrogenic events and more than a quarter of severe iatrogenic events were preventable. Iatrogenic events seem to be less preventable in neonates that in adults and children, in whom 40-60% of adverse events are preventable."

The authors of the Lancet article conclude that 40-60% of adverse events (medical errors) are preventable. The Canadian study estimated that 37% of adverse events were "highly" preventable. Unfortunately there are no Canadian standards that require the reporting of medical errors.

Clearly Hospitals in Canada and the U.S. have significant room to improve patient safety.

Continue reading "Majority of Infant Deaths Due to Medical Error Preventable" »

February 6, 2008

More Than 25% of Elderly Patients Suffer Prescription Errors

Prescription errors are a major problem for elderly patients, according to a new study published in the journal Medical Care, the official journal of the American Public Health Association.

The authors of the study found that 26.2% of elderly patients who participated in the study received inappropriate or suboptimal drugs as treatment. However, patients who received care from geriatric specialists had significantly lower rates of prescription error.

The authors of the study suggest that seniors make sure that they have a very good primary care physician (family doctor) and that they consider seeing a geriatrician for complex healthcare management needs or multiple chronic disease management.

A report published in the May 25, 2004 edition of the Canadian Medical Association Journal entitled: "The Canadian Adverse Events Study: the incidence of adverse events in hospital patients in Canada" had similar findings.

Some of the highlights include:

24,000 patients die each year due to “adverse events” (medical mistake).
1 in 13 adult patients encounter an adverse event.
1 in 19 adults will be given the wrong medication or wrong medication dosage.
24% of preventable adverse events are related to medication error.

The most common areas for an adverse event to occur was surgery followed by medicine related errors.

Unfortunately, the solution suggested by the American Public Health Association; make sure you have a good family doctor and see a gerontologist; just doesn't work for many Canadians.

5 million Canadians do not have a family doctor. How are these people supposed to receive quality medical care when they cannot even find someone to manage their basic medical needs?

Thanks to the lawyers at the D.C. Med Mal Blog for posting the journal report.

Continue reading "More Than 25% of Elderly Patients Suffer Prescription Errors" »

February 5, 2008

Quality of Cancer Treatment Depends on Doctor's "Characteristics"

The medical treatement that cancer patients receive depends on the personal characteristics on the doctor treating the patient, according to a new study published in the Journal of the National Cancer Institute.

According to the study:

...adjuvant radiotherapy following breast conservation surgery (BCS) is considered to be an indicator of quality of care for the majority of women with breast cancer, but many women do not receive adjuvant radiotherapy.

The study confirmed the results of previous research that indicated a patient's personal characteristics (age, race, marital status etc.) determined the level of care received.

However, the study also found that the doctors characteristics also played a role in whether patients received the expeceted level of care. The study found that patients were more likely to receive adjuvant radiotherapy if they had a surgeon who was female, had a medical degree (as opposed to an osteopathicdegree), or was trained in the United States.

Given the differences in the delivery of medical care here in Canada and the United States, one cannot assume the reports findings would carry over to Canada. But the issue is one worth studying.

Continue reading "Quality of Cancer Treatment Depends on Doctor's "Characteristics"" »

February 4, 2008

Psychiatric Medical Malpractice Claim Dismissed

A psychiatrist who misjudged a patient's risk of suicide was found not to have been negligent when the patient subsequently committed suicide.

In Buyze v. Malla the deceased, Mr. Buyze had been treated several times by various doctors for depression and suicidal thoughts. He was seen in the emergency department by the on-call psychiatrist, the Defendant Dr. Malla who diagnosed him with:

...major depression with anxiety and a history of suicidal ideation...

Buyze was admitted to the psychiatric ward of the Hospital. He subsequently left the Hospital ward and was later found to have comitted suicide by over dosing. After Mr. Buyze's body was found, the Defendant Malla added the words “no attempts/no plans.” to his diagnosis of Mr. Buyze.

The trial judge ruled that:

...history has proved that Dr. Malla erred in his assessment of Mr. Buyze’s risk of suicide. I am not persuaded, however, that Dr. Malla breached the standard of care expected of a reasonably prudent psychiatrist.

The court stressed that an error of judgement is not necessarily negligence and that the court must be careful not to judge an individual’s conduct on the basis of consequence alone.

The court quoted a decision from the New York Court of Appeal in Fiederlein v. City of New York Health and Hospitals Corporation where the American Court said:

The prediction of the future course of a mental illness is a professional judgment of high responsibility and in some instances it involves a measure of calculated risk. If liability were imposed on the physician…each time the prediction of future course of mental disease was wrong, few releases would ever be made and the hope of recovery and rehabilitation of a vast number of patients would be impeded and frustrated. This is one of the medical and public risks which must be taken on balance, even though it may sometimes result in injury to the patient or others.

The Buyze decision highlights the difficulty of psychiatric malpractice claims. In most medical negligence claims the expected outcome of a case can be accurately predicted on the basis of accepted scientific and medical evidence.

However, in psychiatric cases the outcome often involves not only considering the scientific and medical evidence, but the vagaries of human behavior. The courts are loathe to hold doctors responsible for failing to forsee the inherently unpredictable behavior of psychiatric patients.

Continue reading "Psychiatric Medical Malpractice Claim Dismissed" »

February 3, 2008

Medical Malpractice Claim Over Birth Injuries Dismissed

An obstetrician's failure to obtain informed consent was not the legal cause of an infant's brain damage, according to a decision from Ontario.

The Ontario Court of Appeal just released a ruling upholding a trial decision dismissing a claim of obstetric malpractice.

In Cruz v. Robins the trial judge held that the use of forceps during the infant plaintiff's delivery caused the baby's brachial plexis injury and brain damage. The judge found that the parents, Mr. and Mrs. Cruz should have been consulted and should have been informed of the option of a caesarean section and its risks. Further, he found that they should have been advised of the risks involved in proceeding with a mid-forceps delivery. Nevertheless, the trial judge concluded that had the appellants been advised and given the choice, the same result would have occurred.

In other words, even if the parents had known the risk, they would have agreed to assume the risk.

Even though the plaintiff's were able to prove that the defendant doctor was negligent in failing to obtain proper informed consent, they were not able to prove that the failure would have changed the outcome of the delivery. The Court of Appeal repeated the words of the trial judge who said:

[Dr. Robins’] failure to seek and obtain informed consent is of no consequence to the outcome of this case. The same procedure would have been pursued and the same results would have been experienced.

The decision highlights the huge hurdles plaintiff's face in medical malpractice claims and why 98% of Canadian victims of medical malpractice never recevieve compensation for their injuries.

Continue reading "Medical Malpractice Claim Over Birth Injuries Dismissed" »

February 1, 2008

No National Standards for Disclosure of Medical Errors

In Canada there are no national standards or policies regarding the disclosure of medical errors ("adverse events") to patients. Provinces and health care organizations have been left to decide for themselves what obligations health care providers have to disclose medical errors to patients.

In 2005 The Canadian Patient Safety Institute (CPSI ) formed a committee to create national guidelines for the disclosure of "Adverse Events".

In 2007 CPSI released their draft national guidelines for consultation with various national and provincial health care organizations.

The results of CPSI's consultations are outlined in this report.

I found the results of the consultation interesting. 81% of those surveyed during the consultation claimed that their organization had developed a policy or procedure for disclosure of adverse events (medical errors).

But more than half of those surveyed (53%) said their organization doesn't offer training (or they don't know if training is offered) regarding disclosure of adverse events.

I have said it before, health care policies can be helpful but only if health care professionals know what the policies are and are properly trained in how to apply the policies.

Continue reading "No National Standards for Disclosure of Medical Errors" »

January 31, 2008

Only 2% of Canadian Medical Malpractice Victims Receive Compensation!

Nearly a quarter of Canadian adults (5.2 million people) report that they, or a member of their family, have experienced a preventable adverse event (lawyer speak for medical malpractice) according to a report released by the Canadian Institute for Health Information.

In Canada, most doctors are defended by a single organization, the Canadian Medical Protection Association (the C.M.P.A.). According to their most recent annual report, the C.M.P.A. has TWO POINT NINE (2.9) BILLION DOLLARS in reserves (money in the bank). The C.M.P.A. uses this money to hire the best experts and lawyers money can buy. Canadian victims of medical malpractice have an almost insurmountable challenge in the face of such overwhelming financial odds.

Some Frightening Statistics:

• The C.M.P.A.’s annual reports brag about its success rate in defending claims brought against doctors. Between 2002 and 2006 over 5000 lawsuits were filed against doctors in Canada. More than 3800 of those claims were dismissed or abandoned because the victim or his or her family, either quit, ran out of money or died before trial.

• The C.M.P.A. settled 229 claims out of court (usually after several years of litigation and just before trial).

• Of the 577 cases that went to trial only 121 resulted in a verdict for the Plaintiff victim. So in the last five years, only twenty percent (20%) of malpractice victims actually won at trial.

• For those few victims who won at trial, the median damage award was only $95,500.00.

• Of more than 5000 lawsuits filed against doctors in the last five years, only two percent (2%) resulted in trial verdicts for the victim.


In other words, 98% of Canadian medical malpractice victims never receive a penny in compensation!

Continue reading "Only 2% of Canadian Medical Malpractice Victims Receive Compensation!" »

January 30, 2008

Medical Malpractice Kills More Than 24,000 Canadians Each Year

As many as 24,000 Canadian patients die each year due to “adverse events” (medical code words for medical malpractice).

What are we going to do about it?

A report published by the Canadian Medical Association Journal entitled: "The Canadian Adverse Events Study: the incidence of adverse events in hospital patients in Canada" confirmed the findings of similar studies in the United States, Australia, the United Kingdom, Denmark and New Zealand.

Some of the findings include:


• As many as 24,000 patients die each year due to “adverse events”.
• 87,500 patients admitted annually to Canadian acute care hospitals experience an adverse event.
• 1 in 13 adult patients admitted to a Canadian hospital encounter an adverse event.
• 1 in 19 adults will potentially be given the wrong medication or wrong medication dosage.
• 37% of adverse events are “highly” preventable.
• 24% of preventable adverse events are related to medication error.
• The most common areas for an adverse event to occur was surgery followed by medicine related errors.

The sad fact is that most victims of medical malpractice do not even know they have been the victim of medical negligence because in most provinces in Canada there is no law that requires doctors and nurses to report medical errors to their patients!

In Nova Scotia the Department of Health has adopted a Disclosure of Adverse Events Policy that requires "organizations providing health care" to have a:

...process in place to promptly inform clients of pertinent facts associated with adverse events.

Policies are fine but if the "organization providing health care" never finds out about a medical error because a doctor or nurse has covered it up then how does that protect patients?

Until there is a statutory duty on doctors and nurses to report medical errors, and sanctions for those that don't, patient safety is going to take second place to the self interest of who have committed errors and are afraid to be held accountable.

Continue reading "Medical Malpractice Kills More Than 24,000 Canadians Each Year" »

January 29, 2008

Doctors Don't Disclose Errors, Even When They Think They Should: U.S. Study

Doctors don't report their medical errors, even when they think they should, according to a study from the University of Iowa.

Washington D.C. lawyer Patrick Malone posted about the study on his Patient Safety Blog.

The author of the study said that:

...he was encouraged that most of the doctors believed reporting errors was an important way to improve health care quality. But he said he was troubled by the fact that fewer than half of them would have reported the hypothetical error if it didn't cause problems.

I am not aware of any Canadian studies that have specifically addressed this question. There is no reason to think that doctors in Canada feel different than their American counter-parts. However, the study does confirm the point that I made in a previous post. Until there are legal requirements to report medical errors and sanctions for those that do not, there will always be those that put self interest above patient safety.