Halifax Medical Malpractice Lawyer Blog

Nurse Negligent

In a decision released last week, Justice Tausendfreund has ruled that a nurse at St. Joseph's Children’s Hospital was negligent and that the nurse’s negligence caused catastrophic brain injuries to a baby, Danny Vuong.

Danny’s mother, Ms. Giang was admitted to St. Joseph’s Hospital on June 12, 2991. Her pregnancy had been normal and uneventful.

Fetal Heart Monitor Results Not Normal

Two nurses were assigned to Ms. Giang to monitor the baby’s fetal heart rate. They used an electronic fetal heart monitor (EFM) to monitor the baby’s heart rate.

When the nurse checked the heart monitor it showed a range of 170 beats per minute, a reading that is outside the normal range. The nurse assumed that she had simply heard a normal acceleration of the baby’s heart rate. However, the nurse also recognized that the increased heart rate could also be a sign of tachycardia, an abnormal elevation in the heart rate which is a sign of fetal distress.

Didn't Check Again

But she didn't check the baby's heart rate again to see if it had returned to normal! 20 Minute Delay

Unfortunately, the nurse did not return to Ms. Giang to conduct another fetal heart rate monitor until 20 minutes later. By that time, the baby’s heart rate had dropped precipitously and an emergency C-section was performed.

The surgeon who performed the c-section found that the umbilical cord had been wrapped around Danny’s neck. Danny was born suffering from the results of acute hypoxia-ischemia resulting in severe brain damage.

Justice Tausendfreund ruled that:

“Had Danny been born 10 minutes earlier he would have been at great risk for some neurological injury, but he would not have sustained the depth or extent of injury he did.

“I find that had Danny been born 10 minutes earlier, it would have significantly and materially reduced both the extent and nature of the injury to Danny’s brain and would have significantly and materially reduced the degree of functional impairment.”

Nurse Failed to Meet Standard of Care

Justice Tausendfreund ruled that the nurse had failed to meet the standard of care expected of her. Had she acted in accordance with the standard of care and continued to monitor the baby’s heart rate to confirm her assumptions she would have realized that the baby was suffering a medical emergency. As a result, the Judge ruled that the nurse’s negligence was the cause of baby Danny’s catastrophic brain injuries.

Causation in Medical Malpractice Claims

This case shows how a difference of just minutes can mean the difference between life and death. The difference between having a healthy baby and a baby who will live his life severely debilitated by brain injury.

The vast majority of medical malpractice claims fail because the victim is not able to prove that the the health provider's negligence caused or materially contributed to their injury.

Continue reading "Nurse's Negligence Caused Child’s Brain Injury" »

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!" »

Nurses Duty to Ensure Appropriate Care

A recent decision from Ontario has found that nurses have a duty to ensure patients receive appropriate care from a responsible physician when faced with a medical emergency.

The court found that the duty to ensure that the patient is seen by a appropriate physician exists even when the patient has already been seen by a resident physician.

Failed to Meet Standard of Care

In Milne v. St. Joseph’s Health Centre, Justice Morissette found that an experienced obstetrical nurse and an obstetrical resident both failed to meet the standard of care expected of a reasonable nurse and physician during the birth of Anne Louise Milne’s son Jessy.

Jessy suffered catastrophic brain damage due to a premature separation of Ms. Milne's placenta from her uterus, resulting in internal bleeding. Ms. Milne was admitted to the delivery unit of the St. Joseph’s Health Centre at 1:20 PM on August 18, 1997.

Nurse Suspected Medical Emergency

The obstetric nurse who took her vital signs and applied the fetal heart rate monitor strongly suspected that Ms. Milne had suffered a placental abruption. The nurse testified at trial that she understand that a placental abruption was a medical emergency and might require a cesarean section in order to prevent brain damage due to the lack of oxygen to the fetus.

At 2:00 PM Ms. Milne was assessed by an obstetric resident who performed an ultrasound which showed that the fetus was not breathing or moving.

Doctor Suspected Medical Emergency

The resident physician also suspected a placental abruption but neither one of them discussed their concerns with the other nor did they consider an appropriate course of action.

No One Talked to Doctor in Charge

The nurse testified that she expected the resident physician to contact the attending obstetrician in charge of Ms. Milne to determine her appropriate treatment.

Approximately 35 minutes after the resident examined Ms. Milne the obstetric nurse finally asked another physician to assess Ms. Milne. The physician immediately diagnosed Ms. Milne’s condition and ordered a emergency cesarean section.

Justice Morissette found that delivering baby Jessy even 10 minutes earlier would have prevented his severe brain damage.

Lack of Communication Can Have Catastrophic Consequences

In many hospitals nurses and physicians work in what is called a “team environment”. This case emphasizes the need for communication between team members. It also emphasizes the importance of coming up with a proposed plan of treatment with every patient.

Continue reading "Nurses Have a Duty to Ensure Doctors Meet the Standard of Care" »

One of the reasons why medical malpractice claims are so complicated, and so expensive, is because they require the testimony of medical experts, usually several medical experts to testify about both legal issues such as:

1. The standard of care;
2. Whether there was a breach of the standard of care;
3. Whether the breach resulted in the patient’s injuries;
4. What is the nature of the plaintiff’s injuries?

My book, The Consumer’s Guide to Medical Malpractice Claims in Canada, discusses the use of medical experts in medical malpractice claims and goes into detail to explain why you cannot win a medical malpractice case without solid medical experts on your side.

A recent case in Bridgewater, Nova Scotia simply proves my point.

In Vaughn v. Hayden, Justice McDougall of the Nova Scotia Supreme Court granted the defendant’s motion to strike out the plaintiff’s statement of claim.

Defendants Apply to Strike Out Claim
The defendants made a motion for Summary Judgment. Basically, the defendants asked the court to dismiss the plaintiff’s claim on the basis that there was not genuine issue for trial.

Defendant Doctor Had Expert Reports

The defendant provided the court with expert medical opinions from 2 doctors who testified that Dr Hayden, did not breach the standard of care and that any injuries that the plaintiff Mr. Vaughn may have suffered were not caused by negligence on the part of Dr. Hayden.

Plaintiff Didn't Have Any Expert Evidence

The plaintiff filed his own affidavit opposing the motion.

Justice McDougall struck out the plaintiff’s claim and stated:

“Furthermore, it would be a rare medical malpractice case that would have any real chance of success without some kind of supporting expert evidence establishing the breach of the standard of care and the causal connection between the negligent treatment and the resulting harms suffered”

I have been representing victims of medical malpractice for 19 years. It has always been my practice to recommend that a plaintiff get a supporting medical-legal opinion from a recognized expert confirming that there are solid grounds for a medical malpractice claim before filing a medical malpractice lawsuit.

This case just proves my point. You can't win a medical malpractice claim without expert evidence and you better know if the experts support your claim before you file a lawsuit.

Continue reading "Medical Malpractice Claim Struck Out for Lack of Expert Evidence" »

Highest Cancer rates in Canada

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

What Questions Should You Ask?

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

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

Does anyone in your family have a history of cancer?

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

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

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

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

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

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

What type of cancer were you diagnosed with?

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

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

What stage of cancer were you diagnosed with?

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

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

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

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

Would the outcome be different?

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

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

What is your prognosis?

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

Are you a smoker?

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

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

What Happens Next?

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

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

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

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

Almost 100,000 Medical Mistakes Each Year in Canada

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

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

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

Role of the CMPA

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

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

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

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

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

70% of Claims Dismissed or Abandoned

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

Doctors Win 80% of Trials

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

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

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

Why Did You Write The Book?

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

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

What Makes a Good Doctor?

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

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

What Makes a Good Lawyer?

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

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

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

Most Victims Never File a Claim

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

What You Need to Know

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

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

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

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

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

Burden of Proof

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

Beyond Reasonable Doubt

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

Balance of Probabilities

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

Scales of Justice?

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

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

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

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

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

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

Economic Losses from Medical Malpractice

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

Income Loss from Medical Malpractice

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

Income loss includes both:

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

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

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

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

Diminished Earning Capacity:

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

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

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

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

Continue reading "Income Loss in Medical Malpractice Claims" »

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

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

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

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

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

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

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

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

Hospital Infections Widespread Problem

Infections acquired while getting healthcare for an unrelated condition is becoming a common, and dangerous, problem in hospitals across North America.

MRSA (Methicillin-Resistant Staphylococcus Aureus) has been in the news a lot. MRSA is a potential deadly infection caused by bacteria that has become resistant to most antibiotics. For example take a look at this news story.

Recent medical studies show that many healthcare providers do not follow proper sanitary procedures designed to reduce infection when treating patients.

However, because hospitals are full of sick people, they are also full of bacteria and viruses. Therefore, it is very difficult to prove that the virus or bacteria that infected you, or your loved one, was the result of the negligence of your doctor or hospital personnel or simply the result of being exposed to bacteria or virus in the hospital environment.

In order to determine if the infection that you or your loved one acquired was a result of medical malpractice we need to conduct an investigation to answer a number of questions:

What was the medical condition that you were being treated for?

What was the bacteria or virus with which you were you were infected?

Was their an actual mistake which led to the infection?

A careful examination of the facts and medical records as well as a medical opinion from an epidemiologist will help determine if your hospital acquired infection was a result of medical malpractice.

Continue reading "Hospital Acquired Infections: Is it Medical Malpractice? " »