Halifax Medical Malpractice Lawyer Blog

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 " »

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!" »

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" »

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?" »

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?" »

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.

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" »

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!"" »

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" »

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." »

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" »

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.

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" »

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.

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" »

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" »

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"?" »

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!" »

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" »

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?

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" »

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.

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" »

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."

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?

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.

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" »

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" »

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" »

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" »

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.

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"" »

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" »

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" »

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" »

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!" »

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" »

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.