The January issue of Men’s Health Magazine has published an article about the so-called “Weekend Effect”. It is a well-known phenomenon that has been studied for years that has established that patients are more likely to die in hospitals on the weekend compared to during the week.
A recent study in the journal of the American College of Cardiology studied 470 hospitals and determined that more than half of the patients experienced cardiac arrest on the weekend or at night.
It’s scary to hear the words, “You have cancer.” But the distress and concern of worrying about your health can be compounded by the realization that the diagnosis was delayed, allowing the cancer to grow and spread.
A delayed cancer diagnosis can give rise to a medical malpractice claim. This type of claim, however, faces many challenges that malpractice lawyers and their clients should be aware of. Many Canadians will face a cancer diagnosis at some point
The Canadian Cancer Society reports that 2 of 5 Canadians will develop cancer in their lifetime, and that 1 of 4 will die from cancer. Since the 5-year survival rate of someone with cancer is about 63% (it varies according to the type of cancer) a missed or delayed diagnosis means that a patient may have missed a lifesaving opportunity for treatment. Earlier Diagnosis = Better Results Generally speaking, if one is diagnosed early, there is a greater chance of survival. But, what if a medical practitioner acts negligently in determining the health of a patient? There may be grounds for a medical malpractice claim if a doctor’s unreasonable delays in diagnosing cancer mean the patient loses the opportunity for effective medical care. You Cannot Sue for “Loss of Chance” in Canada
Medical malpractice claims relating to a delayed diagnosis face many hurdles in Canada. Americans plaintiffs can try to show that a physician’s delayed diagnosis reduced their chances for successful treatments, by some percentage. Say a plaintiff in the U.S. claims that a delayed diagnosis reduced the chance of successful treatment by 20%. The plaintiff, then, can try to sue for 20% of potential future losses. This is called “loss of chance”. You cannot sue a medical practitioner for “loss of chance” like one could in the United States. Burden of Proof in Cancer Claims
A plaintiff in Canada must show more than just a possible loss of chance. Plaintiffs in this country have to prove, on the balance of probabilities, that an earlier diagnosis would have changed the outcome of treatment. Meaning that they would likely not have experienced the loss had they been diagnosed earlier.
While difficult to prove, there are several ways plaintiffs and their medical malpractice lawyers can show that a missed or delayed diagnosis caused enough harm to win damages in a cancer misdiagnosis case. Showing Causation
Cancer misdiagnosis claims in Canada must begin with the plaintiff proving causation, which means certain circumstances need to be established, on the balance of probabilities, through examination of legal and medical issues. These circumstances include:
Neck and back pain is one of the most common reasons that Canadians attend for medical treatment. Some studies have shown as far back as 1998 that more than 66% of the adult population were experiencingneck and back pain and more than 80% of adults had experienced back pain during their lifetime.
Proper medical treatment requires proper diagnosis
It goes without saying that getting the right diagnosis is the first step in receiving proper medical care. Obviously if a patient isn’t properly diagnosed then the treatment they receive isn’t likely to address their illness or condition (except perhaps by chance).
So medical misdiagnosis is a serious threat to patient safety. In fact medical misdiagnosis is the number one cause of medical malpractice lawsuits in Canada.
The Ontario Court of Appeal has released an interesting decision in the case of Cathy Frank v. Legate et al. Victims of medical malpractice in Canada face a number of barriers in getting access to justice. The claims process can be complicated, time consuming and expense. The odds are stacked against plaintiff’s in medical malpractice claims for a variety of reasons. However, as this case illustrates, a doctor in Ontario tried a novel tactic in attempting to limit medical malpractice claims her.
Dr. Cathy Frank is an obstetrician in Ontario who is the defendant in a number of medical malpractice claims. The doctor adopted the unusual strategy of suing the lawyers who represented the plaintiffs who were suing Dr. Frank. The defendant doctor alleged that statements made by the plaintiff’s law firm in their statement of claim and on their website were defamatory.
Dr. Frank also claimed that she was the victim of malicious prosecution, that the plaintiffs’ lawyers were guilty of champerty and maintenance (a very old legal principle that prohibits plaintiffs from starting litigation with an improper motive), intentional interference with economic relations and intentional infliction of mental distress. Dr. Frank sought punitive damages from the plaintiffs’ lawyers.
Did you know that there are certain times when it is more dangerous to go to the hospital?
What’s the most dangerous time to go to the hospital?
As Canadians we are proud of our health care system. We expect hospitals, doctors and nurses to provide us with excellent care no matter when we are forced to go to the hospital. That’s not an unreasonable expectation.
The Canadian Medical Protective Association represents almost every doctor in Canada. The Association is a mutual defence fund that operates sort of like insurance. If a doctor is sued for malpractice, the CMPA will defend the claim and if the doctor is found liable for the plaintiff’s injuries, the CMPA will pay the compensation out of its $3 billion dollar reserve fund.
The CMPA also represents doctors in matters dealing with College of Surgeon and Physician complaints, disciplinary matters, criminal charges, and matters dealing with hospital privilege issues.
Are staffing demands putting patient safety at risk?
Last week the media reported two stories of interest to patient safety advocates.
The Province of Nova Scotia released statistics from its medical errors registry suggesting that, in the last six months, medical errors had caused almost thirty cases of serious injury or death in hospitals throughout Nova Scotia. If you are interested, you can read my article about the problems with Nova Scotia’s medical errors registry.