Halifax Medical Malpractice Lawyer Blog

Justice Muise of the Supreme Court of Nova Scotia recently released his reasons in McIntosh v. Isaac Walton Killam – Grace Health Centre.

The Facts

Ms. McIntoshs’ baby was delivered at the IWK by C-section after a period of pushing in an attempt to deliver vaginally. Ten days after the delivery she became aware of pain in her left hip. She had not had any prior problems with her hip before her delivery.

Approximately one year later, x-rays showed Ms. McIntosh had bone fragments in her hip. She had to undergo surgery and a subsequent hip replacement. Ms. McIntosh sued the IWK claiming the student nurse that was supporting her legs during the delivery caused the damage to her hip joint.

Standards for Students?

One of the issues that Justice Muise had to determine was whether a student nurse should be held to the same standard as a registered nurse.

Standard of Care for Student Doctors

I have previously discussed the issue of the standard of care for medical students. See for example Medical Malpractice Claims in Canada: Standard of Care for Medical Students - Anderson v. Greene

Standard of Care for Nursing Students

Justice Muise had this to say about the issue:

[9] The nursing student is to be held to the standard of care expected of a registered nurse of average competence and ordinary skill facing the circumstances in question. Judicial comments to that effect have been made in Tekano (Guardian ad litem of) v. Lions Gate Hospital, 1999 CarswellBC 1709 (B.C.S.C.), at paragraph 109, and in Dixon v. Calgary Health Region, 2006 CarswellAlta 378 (A.B.Q.B.), at paragraph 73.

[10] The standard of care expected of nurses is dealt with in the same way as the standard of care expected of other health professionals. Useful comments, in relation to the standard of care of health professionals generally, are contained in paragraph 6.26 of the Canadian Health Law Practice Manual (Markham: LexisNexis Canada Inc., 2000) where it is stated:

“The conduct of the institution and its health professionals will be judged on whether the care provided met a reasonable standard in the particular circumstances of the case. The health practitioner is not held to a standard of perfection. The test is not whether the patient received the best care possible from the health practitioner in question. Rather, the Court will look at what the reasonable health professional in a comparable setting would have done in like circumstances.”

After an examination of the case law and considering the evidence by both parties, Justice Muise concluded:

“Based on the forgoing, I find that the plaintiff has not established, on the balance of probabilities, that the student nurse, Cynthia Mann, breached the applicable standard of care.”

Why is this important?

This case is important to Nova Scotians, and Haligonians in particular because the IWK-Grace Health Centre and the Halifax Infirmary are both teaching hospitals. Much of the primary medical care provided to patients in these hospitals is provided by students (both medical and nursing) obtaining further training in their profession.

However, patients in these hospital are usually not told that the person that is treating them is a student and whether it is their first day in the hospital or whether they have been training for years.

Increase in Medical Errors

There is a significant increase in mortality rates (death) for patients who are admitted to teaching hospitals in July: Beware the July Effect.

Researchers have concluded that in fact the spike in mortality rates is usually due to the fact that July is when medical students begin their training in their new specialties.

Be an Advocate

As patients, we all have certain rights. One of those rights is to be provided with competent medical care. Most of the health care professionals who treat patients here in Nova Scotia are capable and dedicated professionals. However, everyone makes mistakes and lack of experience can lead to medical errors.

If you have a concern about the lack of training or experience of anyone that is providing you with medical care you have the right to ask that a more experienced professional provide your treatment.

Now more than ever effective medical and hospital care often depends on patients, or their familt members, being their own advocates.

What Do You Think? Leave a comment and let me know.

Misdiagnosis Leads to Amputation

A recent ruling from the Court of Queen's Bench in Alberta confirms that prompt diagnosis can mean the difference between life and death (or in this case, life and limb).

Alberta farmer Wayne Forsberg has been awarded 1.5 million dollars in compensation as a result of medical negligence on the part of emergency room physician Dr. Dadi Naidoo.

Patient Suspected an Infection

In October 2000, Mr. Forsberg began to suffer from fever, stiff neck and a rash. He suspected that he might be suffering from meningitis because public health officials in the Edmonton area had been warning the public about a recent outbreak.

Forsberg attended the emergency department at the nearest hospital in Leduc.
The emergency room nurse who performed the triage suspected Forsberg was suffering from a blood infection and advised the attending physician, Dr. Naidoo. The nurse testified at trial that she asked Dr. Naidoo twice if the patient should be given antibiotics but was instructed to hold off.

Doctor Wanted to Wait

Dr. Naidoo testified at trial that he realized Mr. Forsberg probably had a blood infection but felt that he needed to discuss the issue with an infectious disease specialist before prescribing antibiotics.

Failed Attempts

The specialist Dr. Naidoo consulted with suggested a lumbar puncture which would help narrow it down the possible diagnosis. Dr. Naidoo tried unsuccessfully to perform the puncture on two occasions, resulting in further delay.

More than three hours after Mr. Forsberg arrived at the hospital he was finally transferred to Edmonton’s Royal Alexander Hospital where he was immediately started on antibiotics.

Unfortunately, as a result of the blood clots created by the meningitis bacteria surgeons had to amputate large parts of both of Mr. Forsberg's legs and one of his arms.

Justice Dennis Thomas stated:

When faced with a “very ill man” Dr. Naidoo knew that a probable cause was bacterial infection and that there was literally nothing to lose by a very prompt attempt to treat that possible infection with antibiotics. Any medical professional should clearly have known that was the case.

Prompt Treatment Would Have Limited Injuries

Justice Thomas concluded that if Mr. Forsberg had been started on antibiotics immediately he would have lost his toes and perhaps needed some skin grafts but he would have avoided from having to suffer from the major amputations of his legs and arm.

Mr. Forsberg was awarded $270,000 for non-pecuniary damages for pain and suffering and over $1 million dollars to compensate for business losses as a result of him having to sell his farm.

Prompt and Effective Treatment Critical

This case highlights the pressures on emergency room staff to effectively triage and diagnosis potential illness.

Differential Diagnosis Method

When diagnosing a potential illness doctors are supposed to use what is called the “differential diagnosis” method.

Basically the process requires the doctor to create a list of all the possible causes of the signs and symptoms that the patient suffered from.

The doctor is then required to conduct tests or investigations to rule in (or rule out) the potential causes until the doctor arrives at a final diagnosis.

Dangerous or life threatening illnesses are supposed to be placed at the top of the differential diagnosis list because, as the Forsberg case illustrates, they can have dire consequences.

More Information

"What is a Differential Diagnosis and Why is it Critical to My Care?"

Continue reading "Farmer Receives 1.5 Million Dollars for Emergency Room Negligence - Forsberg v. Naidoo" »

The British Columbia Court of Appeal released its reasons last week in the case of Ediger v. Johnston.

The Facts

Cassidy Ediger suffered an acute and severe hypoxia-ischemic encephalopathy (HIE) about 20 minutes before her birth. Her injury was caused by a compression of her umbilical cord which cut off oxygen from the placenta to her brain. The asphyxia caused a deceleration in her fetal heart rate which lasted until Cassidy was delivered by emergency caesarean section.

Cassidy’s injuries are catastrophic and irreversible and will significantly shorten her life expectancy.

Cassidy’s mother, Caroline Ediger, filed a medical malpractice claim against the obstetrician who delivered Cassidy, Dr. William Johnston.

At trial, the judge found Dr. Johnston did not have a surgical team to be “immediately available” before the delivery started and that he failed to obtain the mother’s informed consent to the procedure.

Failed to Explain

The trial judge found Dr. Johnston should have advised Cassidy’s mother of the benefits and risks of attempting a delivery by using forceps and the risks and benefits of proceeding by caesarean section.

Breached Standard of Care

The judge concluded Johnston breached the standard of care (was negligent) because he failed to have an anesthesiologist “immediately available” before attempting a mid-level forceps delivery, and in failing to obtain Ms. Ediger’s informed consent to the procedure.

The “immediately available” standard of care was based upon guidelines for forceps delivery published by the Society of Obstetricians and Gynecologists Canada.

Causation

After finding Dr. Johnston failed to meet the standard of care, the trial judge turned to the issue of causation. The trial judge addressed this issue by noting: “the plaintiff cannot succeed unless she establishes that Dr. Johnston’s failure to meet the standard of care caused Cassidy’s injuries.”

Cord Compression

All of the medical experts that testified at trial agreed that cord compression likely caused the fetal bradycardia that lead to Cassidy’s acute hypoxia-ischemic injury. The question for trial was whether Dr. Johnston’s attempted forceps delivery caused the cord compression.

A Matter of Seconds

The medical experts who testified agreed that fetal bradycardia would occur within seconds of cord compression, no matter what the cause. Therefore, it was important to determine whether the bradycardia occurred during or in close proximity to Dr. Johnston’s application of the forceps.

The defendants relied upon the evidence of Dr. Johnston and another physician present during the delivery to suggest that there was a gap of several minutes after the use of the forceps and the onset of Cassidy’s bradycardia.

The plaintiff relied upon nurses’ notes to argue that Cassidy’s fetal heart rate fell to 60 beats per minute (dangerously low) immediately after Dr. Johnston removed the forceps.

The trial judge concluded that the most reliable evidence in timing of the fetal bradycardia came from another doctor who was present in the operating room, Dr. LeGresley and held that the onset of bradycardia occurred within 1-2 minutes after Dr. Johnston abandoned his attempt at forceps delivery.

Couldn't Establish Cause With Precision

The trial judge decided that the evidence could not establish with precision the mechanical process by which Cassidy’s umbilical cord was compressed so as to cause her bradycardia.
The trial judge was not able to determine the precise mechanism that caused the cord compression.

Close Proximity

However, the trial judge concluded that Dr. Johnston’s actions caused Cassidy’s injuries because of the "close proximity" and time between his attempted forceps delivery and the onset of the fetal bradycardia.

Having concluded that the cord compression and resulting bradycardia were caused by Dr. Johnston’s forceps attempt the judge considered whether Dr. Johnston breach of the “immediately available” standard of care caused Cassidy’s injuries.

Reasonable Patient

The judge found that a reasonable patient in Ms. Ediger’s circumstances would have wanted to be informed of the risks associated with a caesarean section and would have chosen to wait until an anesthesiologist was available.

The British Columbia Court of Appeal conducted an exhaustive review of the authorities with respect to the law of causation in Canada. The court concluded:

[77] More recently, in Resurfice Corp. v. Hanke, 2007 SCC 7 (CanLII), 2007 SCC 7, [2007] 1 S.C.R. 333, Chief Justice McLachlin, for the Court, explained the requirement of a substantial connection between the defendant’s negligent conduct and the plaintiff’s injuries in order to meet the burden of the “but for” test:

[23] The “but for” test recognizes that compensation for negligent conduct should only be made “where a substantial connection between the injury and the defendant’s conduct” is present. It ensures that a defendant will not be held liable for the plaintiff’s injuries where they “may very well be due to factors unconnected to the defendant and not the fault of anyone”: Snell v. Farrell, at p. 327, per Sopinka J. [Emphasis added.]

[78] In Resurface, the Court rejected the notion that the material contribution test could be a substitute for the “but for” test and reiterated the default test of cause-in-fact as set in Snell, Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458 at para. 14, Walker Estate v. York Finch General Hospital, 2001 SCC 23 (CanLII), [2001] 1 S.C.R. 647, 2001 SCC 23, at paras. 87-88, and Blackwater v. Plint, 2005 SCC 58 (CanLII), [2005] 3 S.C.R. 3, 2005 SCC 58 at para. 78 (para. 19). The Court restricted the material contribution test to those situations where it is impossible to determine which of the negligent acts of two or more defendants created an unreasonable risk of the type of injury that the plaintiff experienced (para. 27) or where the “but for” chain of causation is broken by the inability of the plaintiff to prove what a person in the causal chain would have done had the defendant not committed the negligent act or omission (para. 28).

[79] In Athey, the Court observed that “the courts have recognized that causation is established where the defendant’s negligence ‘materially contributed’ to the occurrence of the injury” (para. 15). However, the phrase “material contribution” in this statement from Athey is not synonymous with the “material contribution test” referred to in Resurface. The distinction between the two was explained by Mr. Justice Smith, for the majority, in Sam v. Wilson, 2007 BCCA 622 (CanLII), 2007 BCCA 622:

[109] “Material contribution”, as that phrase was used in Athey v. Leonati, is synonymous with “substantial connection”, as that phrase was used by McLachlin C.J.C. above in Resurfice Corp. v. Hanke. This causal yardstick should not be confused with the “material contribution test”. As McLachlin C.J.C. explained in Resurfice Corp. v. Hanke, at paras 24-29, the “material contribution test” applies as an exception to the “but for” test of causation when it is impossible for the plaintiff to prove that the defendant’s negligent conduct caused the plaintiff’s injury using the “but for” test, where it is clear that the defendant breached a duty of care owed the plaintiff thereby exposing the plaintiff to an unreasonable risk of injury, and where the plaintiff’s injury falls within the ambit of the risk.

[80] In this particular case, the material contribution test was not applicable because it was not impossible for the respondent to prove that the appellant’s negligent conduct caused Cassidy’s injuries. The “but for” test of causation required the respondent to establish, on a balance of probabilities, a substantial connection between the risk of harm caused by the appellant’s negligent acts (the breach of the “immediately available” standard of care and/or failure to obtain Mrs. Ediger’s informed consent) and the resulting injuries to the respondent. In other words, in order to succeed, the respondent had to demonstrate that Cassidy’s injuries fell within the type of risk to which Mrs. Ediger was exposed, i.e., the forceps procedure, and that the appellant’s negligent conduct was the cause-in-fact or a “real causa causans” of Cassidy’s injuries.

No Evidence of Alternatives

The Court of Appeal held that no evidence was lead at trial, nor any findings of facts made regarding what delay, if any, could have been avoided if Dr. Johnston had a surgical team “immediately available” or had he obtained Mr. Ediger’s informed consent.

The Court of Appeal stated:

“...absent evidence to support a finding of fact that, but for Dr. Johnston’s breaches of the standard of care, Cassidy would have been delivered earlier then she was and all or part of her injuries would have been prevented or diminished factual causation on the “but for” test was not established.”

The Court of Appeal’s decision concludes with paragraph 102 and 103 of their decision where they state:

“[102] Medical negligence cases, particularly those involving the delivery a child, can be challenging in many respects. One can only feel sympathy for the tragic consequences that Cassidy has suffered from the injuries she sustained in birth, and for the demanding responsibilities that her parents lovingly provide in meeting her daily challenges. However, the burden of proof in any tort action remains with the party who advances the claim. In my view, that burden was not met on the evidence in this case.

[103] Absent a causal connection between Dr. Johnston’s attempted forceps delivery and the cord compression with its attendant fetal bradycardia, the respondent’s action cannot succeed. In these circumstances, I am of the view that the appeal must be allowed and the action dismissed.”

Strict Test for Causation

The Ediger decision simply confirms that the courts have adopted a strict test with respect to proving causation in medical malpractice cases.

The less stringent “materially contributed” test espoused by the Supreme Court of Canada in the Athey v. Leonati decision will only be used in limited circumstances.

Simply put, this case confirms that medical malpractice cases remain complicated, risky and difficult to prove.

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

First Hurdle

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

The Supreme Court of Canada stated that:

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

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

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

“Respectable Minority”

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

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

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

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

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

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

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

The court concluded at paragraph 72 of their decision:

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

Conclusion

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

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

Biggest Hurdle?

The biggest challenge a plaintiff in a medical malpractice case usually faces is proving, on the balance of probabilities, that the defendant’s actions (or inaction) caused the plaintiff’s injuries.

Biological vs. Legal Cause

A recent case from the House of Lords in the United Kingdom examines the issue of causation in a wrongful death case and discusses the difference between the “biological cause" of death or injury and “cause in law”.

Although the decision is not binding on the courts here in Canada, the reasoning in the case is helpful for anyone who has to deal with the issue of causation in medical malpractice cases.

In Sienkiewicz v. Greif the court had to consider whether exposure to asbestos caused the death of Enid Costello.

Lord Phillips stated at paragraph 6:

“Methods of Proving Causation

Most claims for death or personal injury result from accidents. In such cases the cause of death or personal injury will seldom be in issue. A body of knowledge which I shall call “medical science” will enable a witness, expert in that science, to describe the precise mechanism by which the accident brought about the death or injury. I shall describe this as the “biological cause” of death or injury. It is sometimes referred to by the more general description of the “cause in fact”. In some cases, however, medical science will not yet have identified the precise mechanism by which an injury gives rise to a particular physical consequence. In such cases it may be possible to deduce that there was a causative link between the two by evidence of what usually happens. Epidemiological evidence that a particular injury or disease usually follows a particular type of bodily insult may enable a court to conclude in a particular case, on balance of probability, that the former was caused by the latter. “Post hoc ergo propter hoc”. A finding of causation based on such evidence is sometimes described as “the cause in law”.”

Lord Phillips’ decision examines the rule of epidemiological evidence in wrongful death cases and discusses whether proof that the defendant’s actions “doubled the risk” of death is the same as proving on the balance of probabilities that the defendant’s actions caused the plaintiff’s death.

Doubling the Risks

The court explained the "doubles the risk" test as follows:

“The “doubles the risk” test is one that applies epidemiological data to determining causation on balance of probabilities in circumstances where medical science does not permit determination with certainty of how and when an injury was caused. The reasoning goes as follows. If statistical evidence indicates that the intervention of a wrongdoer more than doubled the risk that the victim would suffer the injury, then it follows that it is more likely than not that the wrongdoer caused the injury.”

Lord Phillips concluded that:

“Where there are competing alternative, rather than cumulative, potential causes of a disease or injury … I can see no reason in principle why epidemiological evidence should not be used to show that one of the causes was more than twice as likely as all the others put together to have caused the disease or injury.”

Epidemiological Evidence and Causation

The court eventually went on to reject the epidemiological evidence with respect to causation in the plaintiff's case. However, the case does provide helpful direction to plaintiff medical malpractice lawyers who want to use epidemiological evidence to prove causation in medical malpractice claims.

Cape Breton District Health Authority has stated that 21 patients in two Cape Breton Hospitals have tested positive for the bacteria C. difficile. Four people have died as a result of the infections.

Hospital Acquired Infections a Deadly Problem

Nosocomial infections (Hospital acquired infections) are the fourth largest killer in Canada.

This isn't a new problem. Ontario's Auditor General released a study three years highlighting the concerns about the increasing frequency and dangers of hospital acquired infections.

Thousands of Canadian Patients Die Each Year

Each year, 220,000 - 250,000 hospital acquired infections result in 8,000-12,000 deaths.

The two most common types of Hospital acquired infections are MRSA, short for methicillin-resistant Staphylococcus aureus and C. Difficile.

C. Difficile Infections

C. Difficile is a bacteria spread by touching a surface or skin that is contaminated with fecal matter.

It appears the recent deaths are due to a new more virulent strain that has been found in Canadian hospitals over the last two years.

Hospital Infections are Preventable

The Centers for Disease and Prevention Control (CDC) estimates that over 2 million hospital acquired infections occur annually in the United States and are responsible for 90,000 deaths.

Not all these infections are the resut of negligence. But , Betsy McCaughy, the founder and chair of the non-profit patient safety organization Committee to Reduce Infection Deaths, says that "the evidence is overwhelming that nearly all infections are preventable."

The most shocking (or saddest fact) is that according to CUPE (the largest nurses union in Canada) thirty to fifty per cent of these hospital-acquired infections are preventable!

Hospital Infections Lead to Malpractice Claims

I am currently representing the family of a young man who died from an infection he developed after he was admitted to hospital. In the course of researching this case I learned that every year approximately seven percent of Canadian hospital admissions—an estimated 222,000 Canad­ians—pick up an infection while in hospital. About 8,000 of them die.

"How Can I Protect Myself?"

There are 3 things you can do to protect yourself Hospital Acquired Infections

1. Ask hospital staff to disinfect their hands before touching you. Keep an alcohol-based sanitizer in your room to make it easy for them. They are supposed to do this automatically, but studies have shown that only 40 per cent of health-care providers in Canada properly washing their hands.

3. Ask for hospital tubes to be removed shortly after surgery, or avoid having them when it's possible. because they are invasive, I.V.'s or feeding tubes are a major source of infections.

4. Leave hospital as soon as you can to go home. Unfortunately, hospitals are dangerous places.

Continue reading "Nova Scotia Medical Errors: C- difficile Infections kill 4 in Cape Breton Hospitals" »

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

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

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

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

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

Patient Safety Starts With the Patient

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

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

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

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

Different Standards for Different Doctors?

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

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

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

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


Busy Doctor Defence?

Justice Shaughnessy specifically rejected the “busy doctor” defence.

At Paragraph 67 of his decision Justice Shaughnessy stated:

I do not accept the defence’s position that the volume and nature of Dr. Bloom’s practice in contrast to that of Dr. Alidina’s in someway defines the standard of practice in notifying a patient of further mammogram views and an ultrasound.
…
The standard of care applicable to a family physician in 2000 in the Province of Ontario is the same whether the patient attends to Toronto Western Hospital or a Community Clinic in Pickering, Ontario. Dr. Bloom and Dr. Chapman [the defendant’s expert] both agree the standard of care for a family physician is not less for walk-in patients than it is for family patients who have booked appointments… the family physician must provide excellent care which is responsive to the patient’s needs.

Failed to Meet Standard of Care

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

Causation

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

Battle of Experts

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

Justice Shaughnessy’s conclusion was as follows:

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

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

The plaintiff’s claim is dismissed.

Conclusion

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

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

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

There are three things that an injured patient must prove in order to be entitled to receive compensation:

1. What is the standard of care?

2. Did the defendant fail to meet the standard of care?

3. Did the failure (if there is one) cause the patient’s injuries?

Specialists Held to Higher Standard

The Supreme Court of Canada has clearly stated that doctors who specialize in specific areas of medicine are held to a higher standard of care than doctors in a general or family practice. See for example ter Neuzen v. Korn.

As far back as 1954, the Supreme Court of Canada stated this principle clearly in Wilson v. Swanson:

What the surgeon by his ordinary engagement undertakes with the patient is that he possesses the skill, common knowledge and judgement of the generality or average of the special group or class of technicians to which he belongs and will faithfully exercise them.

What About Medical Students?

In many hospitals throughout Canada the primary medical care is provided, not by a specialist, but by medical students who are obtaining further training in their specialty. The medical students, called residents, typically spend one, two, three or four years training to become certified to practice in a particular specialized field of medicine.

Different Standards?

The question then becomes if the alleged medical malpractice was committed by a medical student/resident should the student be held to the higher standard of care of the medical specialist or the lower standard of care of the general practitioner?

Medical Student Claims Lower Standard

This is a question that was recently addressed by the Alberta Court of the Queens Bench in Anderson v. Greene. The plaintiff, Ms. Anderson, alleged she was injured as a result of negligence by two defendants, one of whom, Dr. Abdulhafid, was a fourth year resident of Foothills Medical Centre.

Dr. Abdulhafid did not want to be held to the standard of care of a specialist in obstetric and gynaecological medicine. Rather, he argued he should be “held to the standard of a fourth year resident in a five year obstetrics and gynaecology program at the University of Calgary.”

Lack of Training Doesn’t Lower Standard

Justice Erb of the Albert Court of the Queens Bench pointed out that:

While a higher degree of training and experience by the doctor may raise the applicable standard, a lack of training and experience will not lower it.

Justice Erb concluded the issue by stating:

Here, Dr. Abdulhafid as a fourth year resident in a five year program had undergone seven years of medical education in Libya where he conducted laparoscopic surgery. His testimony disclosed that by second year he had the opportunity to do part of the laparoscopic surgery by making incisions and using the trocars under supervision. On March 5, 2003, he was an experienced physician who had performed many laparoscopies, and therefore held to the standard of an obstetrician and gynaecologist.”

What Does it Mean?

The average patient in the hospital has no idea whether the people that are providing them with medical care are doctors, specialists, or medical students.

It can be unsettling to learn that the doctors who are treating you are actually medical students and you are a part of their training and education.

Good News

It is at least reassuring to know that if a medical student makes a mistake that leads to an injury, they will not be able to avoid responsibility by arguing that they should be held to a lower standard of care.

Want to Learn More?

If you want to learn more about medical malpractice claims, you need to read a copy of my book, The Consumer’s Guide to Medical Malpractice Claims in Canada: Why 98% of Canadian Medical Malpractice Victims Never Receive a Penny in Compensation.

You can contact me through this blog or call toll free in Atlantic Canada 1-877-423-2050 and we will send you a copy, free, anywhere in the Maritimes.

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.

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