Halifax Medical Malpractice Lawyer Blog

Medical malpractice lawyers know most potential victims of medical malpractice never file a claim. Recently a report by ABC News has confirmed that in the United States more than 80% of hospital errors are not reported by hospital employees.

Hospitals Don't Learn From Mistakes?

The report analyzed data from hospitalized Medicare patients. Investigators determined even when mistakes were reported hospitals rarely changed their policies or practices to prevent repeated errors. Hospitals usually claimed that errors were not due to “systemic quality problems”.

When is a Mistake Not a Mistake?

According to the study 61% of unreported medical errors were not even considered to be a mistake by hospital staff. The remaining 25% involved errors that should have been reported but were not.

More Serious Errors Don't Lead to Higher Reporting

Another disturbing finding was that even the most serious types of errors like hospital acquired infections and patient deaths were treated the same as relatively minor errors like allergic reactions. In other words, hospital staff were no more likely to report an error leading to the death of a patient than they were to an error leading to an allergy to penicillin.

Canadian Malpractice Victims Face Difficult Odds

Medical Malpractice lawyers in Canada know that up to 98% of potential medical malpractice victims never receive compensation.

According to statistics from the Canadian Medical Protective Association (the nonprofit organization that defends almost all doctors in Canada) during a recent five year period more than 4,000 lawsuits were filed against doctors in Canada but only 2% resulted in trial verdicts for the victim.

In 2009 the CMPA spent 76 million dollars on legal fees defending doctors in medical malpractice claims across the country.

In the same five year period over 3,000 medical malpractice claims were dismissed or abandoned because the victim or his or her family ran out of money, quit or died before the case came to trial.

Tip of the Iceberg

Medical malpractice claims tend to get attention in the media. Mostly because they are so unusual. But the number of lawsuits that are filed in the court are really just the tip of the iceberg when it comes to the number of potential medical malpractice victims who may not even know they have a claim.

Statistics compiled by the Canadian Medical Association indicate that medical errors kill 24,000 Canadians every year and more than 87,000 patients every year are the victim of some form of adverse event during their medical care.

That's more than 100,000 potential medical malpractice claims in Canada every year!

But according to the CMPA only 1000 lawsuits are filed against doctors in Canada each year.

Continue reading "Most Hospital Mistakes Never Reported" »

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" »

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 " »

The Canadian Patient Safety Institute, a non-profit organization, has created a new website designed to provide the public and health care providers with patient safety information from around the world.

The website is located at www.patientsafetyinstitute.ca

The goal of the website is to provide access to safety advisories, alerts and other resources as well as to allow users to share information to help enhance patient care and protection.

The CEO of the Patient Safety Institute, Hugh McLeod stated:

“In a meeting with the VP of a busy hospital, I asked what is the one tool we could provide you with that would make access to patient safety information easier. Her answer to me was to have access to one website that would provide all information you need to know about hand hygiene, medication safety or any other patient safety and quality focus. We took the idea to heart and have spent the last 7 months building the improving care search centre.”

This is a tremendous initiative and I would urge everybody to login to and bookmark the Patient Safety Institute website.

Quebec became the first province in Canada to require hospitals to publicly disclose medical errors. Quebec’s Department of Health and Social Services has announced a new registry that will collect standardized data from 275 hospitals across the province.

The system will document all reported medical errors including:

1. Patient falls;
2. Supply problems; and
3. Medical record errors.

Incomprehensible Delay

The registry is being implemented 9 years after Quebec passed a law requiring hospitals to track “adverse events”. The goal of the legislation is to identify and correct any patterns of medical errors.

Jean Pierre Menard a medical malpractice lawyer from Montreal calls the almost 10 year delay in implementing the legislation “incomprehensible”.

First Step

As I mentioned in previous posts, until now, there has been no law requiring doctors of hospitals to disclose medical errors. This initiative by Quebec is an admirable first step in improving patient safety and consumer’s confidence in our health care system.

One Down Twelve to Go

Now that Quebec has made reporting hospital errors mandatory there are “only” nine more provinces and three territories that need to implement similar legislation.

What are they waiting for?

Continue reading "Quebec Orders Hospitals to Disclose Medical Errors " »

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" »

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.

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.

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

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

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" »

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.

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" »

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!" »

Almost 100,000 Medical Mistakes Each Year in Canada

The Canadian Medical Association has determined that over 87,000 patients in Canada suffer an adverse event (medical error or mistake) each year.

The same study determined that more than 24,000 people die each year due to medical errors.

That is more than 100,000 potential medical malpractice claims in Canada every year!

Role of the CMPA

In Canada, most doctors are defended by a single organization, the Canadian Medical Protection Association (the C.M.P.A.).

Between 2002 and 2006 the C.M.P.A. reported that only 5,246 were filed against doctors in Canada. About 1,000 claims per year.

That means that out of 100,000 potential medical malpractice claims, 99% of potential medical malpractice victims never even filed a claim!

Their appears to be a perception that people are becoming more litigious, filing more lawsuits, and making frivolous claims. These statistics tell the real truth, that most potential victims of medical malpractice never receive compensation for their injuries.

Even if an injured patient or one of their family members decides to bring forward a claim, they face odds that can seem insurmountable. The C.M.P.A. has almost 3 billion dollars in assets that they can use to hire the best experts and lawyers that money can buy to defend malpractice claims.

70% of Claims Dismissed or Abandoned

According to the C.M.P.A.’s annual reports more than 70% of medical malpractice lawsuits are dismissed or abandoned before trial because the victim or their family quit, ran out of money, or died before trial.

Doctors Win 80% of Trials

Of 577 cases that went to trial over the last several years, only 121 resulted in a verdict for the victim. In other words, only 20% of medical malpractice plaintiffs who went to court actually won their trial.

Medical malpractice claims are among the most complicated, expensive and risky types of litigation. If you think you or a family member may have been a victim of medical malpractice you owe it to yourself to get the advice of a experienced medical malpractice lawyer before deciding whether or not to pursue a claim.

Continue reading "99% Of Potential Medical Malpractice Victims Never File a Claim!" »

Why Did You Write The Book?

I get asked that a lot. There's a ton of work that goes into writing a book about medical malpractice claims. Most books about the topic are written by lawyers, for lawyers, and they are pretty dry reading.

I wanted to write a book that the average person could pick up and read and come away better educated and informed about the medical malpractice claims process and what is involved in filing a medical malpractice claim.

What Makes a Good Doctor?

The British Medical Journal once surveyed people in 24 countries around the world and asked them: “What makes a good doctor?”

The answers included qualities like compassion, understanding, honesty, humanity, competence, commitment, empathy, respect, creativity and a sense of justice.

What Makes a Good Lawyer?

I believe that the qualities shared by great doctors are also traits shared by great lawyers. Especially, a sense of justice.

Since graduating from law school I have devoted my career to trying to help people who truly need help, people looking for fairness, people who need justice.

That is why I do medical malpractice litigation and that is why I wrote The Consumer’s Guide to Medical Malpractice Claims in Canada. To provide information to people who have been seriously injured as a result of medical malpractice. To help people who have been betrayed by the person or persons that they had to trust the most, their doctor, their nurse, their health care provider.

Most Victims Never File a Claim

Every research study that has been done about medical malpractice claims has concluded that most victims of medical malpractice never contact a lawyer or file a claim.

What You Need to Know

You may not actually have the grounds for a medical malpractice claim, but you do need to have certain important information to know if you have a potential claim and what you need to do to protect your rights if you have been a victim of medical malpractice.

I wrote The Consumer’s Guide to Medical Malpractice Claims in Canada so that people who may have suffered a loss as a result of medical malpractice can have this information.

Continue reading "The Consumer’s Guide to Medical Malpractice Claims in Canada" »

When someone dies unexpectedly, or suffers a serious but unexpected injury, while they are in a hospital or under the care of a doctor, it is human nature to assume that the hospital or doctor must have made a mistake. Many clients come to me and say: "How could this have happened? The doctor must have screwed up!"

We all want to believe that when something really bad happens to good people, someone will be held responsible. But that is not always the case.

Burden of Proof

The plaintiff (you) has the burden (responsibility) of proving your claim.

Beyond Reasonable Doubt

Anyone who has watched Law & Order or similar shows on television has heard the term: “proof beyond reasonable doubt”. But that is not the burden that applies in a medical malpractice claim. That is the burden of proof that applies to criminal prosecutions.

Balance of Probabilities

In a medical malpractice compensation claim you have the burden of proof: “on the balance of probabilities”. In other words, is it more likely than not that the doctor (or nurse or other health care provider) was negligent and did that negligence cause your injuries?

Scales of Justice?

The easiest way to understand this burden is to consider a pair of scales. All of the evidence for your claim is placed on one side of the scale. All of the evidence against your claim is placed on the other side of the scale. As long as the scales tip to the side for your claim, even a little bit, then you have met the burden of proof on the balance of probabilities.

What Does OJ Have to Do With The Burden of Proof?

OJ Simpson is a living example of the difference between the criminal and civil standards of proof. As everyone in the world now knows, O.J. Simpson was acquitted of murdering his wife, Nicole Simpson and her friend Ron Goldman because the jury did not believe that the prosecutors had proven the criminal charges beyond reasonable doubt.

However, when the Goldman family sued O.J. Simpson civilly for causing Ron Goldman’s death, the jury decided that the family had proved on the balance of probabilities that O.J. Simpson was responsible for Ron Goldman’s death.

Continue reading "Medical Malpractice Claims: The Burden of Proof and O.J. Simpson" »

Most of my medical malpractice clients have suffered catastrophic injuries that prevent them from being able to return to work or, in the case of infants and children, will prevent them from ever being able to work.

Economic Losses from Medical Malpractice

There are 2 ways to calculate economic losses suffered as a result of medical malpractice. The court will have to determine whether you have suffered an actual income loss or whether you have suffered a diminished earning capacity.

Income Loss from Medical Malpractice

If your are injured as a result of medical malpractice and your injuries prevent you from being able to work for days, weeks, months, or permanently then you can make a claim for the actual income you have lost as a result of the medical malpractice.

Income loss includes both:

Past Income Loss: You are entitled to be compensated for your actual income loss up to the date of settlement or trial. Usually this loss is one that is capable of being calculated fairly accurately. For example, if you were being paid $500.00 a week and you can't work for 4 weeks as a result of your injuries, you are entitled to receive 4 weeks pay ($2,000.00) to compensate you for your past loss of income.

Future Loss of Income: If your injuries are going to prevent you from being able to work in the future, you are also entitled to be compensated for that loss. Unfortunately, there is no such thing as a crystal ball. Claims for future loss of income can be difficult to calculate with precision. No one knows, for sure, what the future will hold.

When valuing a claim for future loss on income, the court will have to consider whether your injuries will prevent you from being able to work for two months, two years or forever.

Calculating claims for future income loss usually requires us to retain the services of an actuary or an economist who are experts in calculating past and future income loss claims. These experts take into account factors like cost of living increases or raises that you would be entitled to receive during your career, the normal retirement age for persons of similar employment, the pension benefits you would expect to receive on retirement, and a host of other factors.

Diminished Earning Capacity:

In some cases, the evidence may prove that you, or your family member, will never be able to work. However, we may not be able to calculate exactly what that loss will be. For example, when a 3 ½ year old child suffers a severe brain injury, who is to say whether that child would have grown up to be a plumber, a doctor, or a rock star?

In cases where the exact amount of the future income loss is not certain, the court will consider awarding, compensation for what is called “diminished earning capacity”.

Everyone’s ability to work is an asset. In other words, your physical abilities, education, training and experience are all assets that provide you with the opportunity to earn an income. If any or all of those abilities have been limited or reduced to some extent by your injuries, you may be entitled to an award for diminished earning capacity.

Again this type of claim usually requires us to hire experts to calculate exactly how reduced your ability to work is and to what extent your ability to earn income has been diminished.

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The latest edition of my book, The Consumer’s Guide to Medical Malpractice Claims in Canada: Why 98% of Canadian Medical Malpractice Victims Never Get a Penny in Compensation, is now on its way back from the printers.

You can get a copy of the book by contacting me through this blog. However, I am going to be posting excerpts from the book over the next few weeks to give you a taste of the information contained in the book.

Lynn Butler sent me a very kind note after reading a copy of the book. Here is what she had to say:

“I found The Consumer’s Guide to Medical Malpractice Claims most helpful. I would definitely recommend the guide to anyone seeking information: it was very informative, factual and easy to read. I would certainly recommend the guide to anyone wondering if they have grounds for a medical malpractice lawsuit.”

Jeff Baggaley contacted me about a pediatric medical malpractice claim. After reading the book he sent me a note to say:

“I have read your book on pursuing a malpractice claim in Canada. Let me say at the outset that your book is an invaluable and excellently written introduction to essential information which the possible claimant needs to know.

As you say, it saved me a lot of time for I am able to read it, and re-read it, as time permits. I very much appreciate the service your book provides.”

If you think you or a family member may have been a victim of medical malpractice you can contact me through this blog for a free copy of my book or you can call me toll free at 1-877-423-2050.

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

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

Two Simple Questions:

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

The first question you need to ask yourself is:

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

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

The second question you need to ask yourself is:

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

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

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

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

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

24,000 Canadians Die Each Year Due to Adverse Events

The Canadian Medical Association Journal has reported that each year more than 87,000 patients experience an adverse event and as many as 24,000 patients die each year due to adverse events (doctor’s code words for a bad result or a mistake).

Medication Errors a Huge Problem

The CMAJ study found that 24% of preventable adverse events were due to medication errors.

New Program in N.S. to Identify Errors

Now an innovative program being implemented in Nova Scotia is helping to identify and prevent medication errors. The program, called SafetyNET is tracking and reporting mistakes that could have sent the wrong medication or the wrong dose to a patient.

The study being conducted by 13 pharmacies across Nova Scotia is keeping track of errors and anonymously reporting them online.

Not Required to Report Errors

Surprisingly, there is no requirement for pharmacies to report medication errors. Furthermore, there are no national standards or reporting systems in place to determine how many prescription errors happen across Canada each year.

However, the SafetyNET study has identified a number of potential problems that may lead to medication error including:

Illegible handwriting by the doctor writing the prescription; Incorrect drug strengths; Medication that is inappropriate because it may react with other medication that the patient is taking; Mix ups between drugs that sound similar (for example Losec and Lasix).

Don’t Get Your Prescription Filled on Monday

The study also pinpointed when most errors were made. One of the pharmacies participating in the study indicated that the majority of errors happened on Mondays between lunch time and 5:00 pm.

National Reporting System Required

I applaud the efforts of Nova Scotia’s pharmacists to improve the quality of services they are providing to their customers. Medication errors are a significant cause of disability and death and anything that could be done to reduce the number of medication errors is an effort that needs to be supported.

The next step, of course, is the implementation of national reporting standards. However, given that pharmacist are provincially regulated, one has to wonder whether there will be any support for such a broad based national initiative.

What do you think?

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