Halifax Medical Malpractice Lawyer Blog

Medical malpractice litigation helps improve patient care

Fri, 17 May 2013 16:26:57 -0400

I read with interest this article in the New York times written by Joanna Schwartz, a professor of law at the University of California, Los Angeles.

One of the (false) arguments trotted out by oppontents of medical malpractice litigation is that it prevents disclosure because doctors and hospitals take a "circle the wagons" approach to litigation that inhibits sharing of information that could improve patient safety.

However, a study done by Ms. Schwartz showed just the opposite:

My study also shows that malpractice suits are playing an unexpected role in patient safety efforts, as a source of valuable information about medical error. Over 95 percent of the hospitals in my study integrate information from lawsuits into patient safety efforts.

Access to Justice Improves Patient Safety

I have said it before but I think it is worth repeating. The ability of patients to seek accountability through the courts is a fundamental part of our civil justice system. Medical malpractice litigation plays an important part in improving patient safety by pointing out medical errors and how they can be corrected/prevented.

Ms. Schwartz notes:

But participants in my study said that lawsuits can reveal previously unknown incidents of medical errors — particularly diagnostic and treatment errors with delayed manifestations that other reporting systems are not designed to collect.

Want more information?

Want to learn more about how Canadian victims of medical malpractice are helping to improve our health care system? Get a copy of After the Error.

Although I contributed to the book I don't receive any financial benefit from sales. I just think that the book is an important step towards greater transparency in our health care system. The authors, Susan McIver and Robin Wyndham are passionate advocates for patient safety.

Doctors negligent, but family loses medical malpractice claim: Mangal v. William Osler Health Centre

Fri, 10 May 2013 14:43:10 -0400

This recent decision from the Ontario Supreme Court highlights the difficulties faced by families who want to pursue a medical malpractice claim for the loss of a loved one.

Sharon Mangal was admitted to the William Olser Hospital on February 16, 2004 to give birth to her second child through caesarean section. Although she ultimately gave birth to a healthy baby girl, Sharon did not survive the procedure.

Sudesh Mangal, Sharon’s husband, along with Vincent and Sarina Mangal, her children, sued the hospital and the doctors alleging their negligence caused Sharon’s death.

The defendants in the case were the obstetricians, nurses, and the anesthesiologists who cared for Sharon Mangal during her labour and delivery, and William Osler Health Centre where the surgery took place. Marocco J. meticulously reviewed the evidence put forward against each of the defendants.

Standard of Care

In any medical malpractice claim, the plaintiff has the burden of proving what the expected standard of care was for each of the defendants and that one or more of the defendants breached the standard of care. In other words, the plaintiff has to prove that one or more of the defendants was negligent.

The plaintiffs have the burden of establishing that, but for the negligent act, the injury would not have occurred. Or in this case, Sharon’s family must prove that timely and appropriate treatment from the Hospital and the doctors and nurses involved would, more likely than not, have avoided the Sharon’s death.

The Medical Evidence

Marocco J. noted that Ms. Mangal’s pregnancy was not routine because she had developed high blood pressure and she had an enlarging fibroid in her uterus. This was important because while the existence of a fibroid was not unusual, it did create a higher risk of bleeding after delivery.

The delivery

The delivery proceeded without complications and after delivery of a healthy baby, Sharon Mangal appeared to be doing well. Dr. Chandran, the obstetrician, left directions with the nurse and returned to her office. The judge noted this was the standard practice.

Everything appeared to be fine with Ms. Mangal until about 11:30 a.m. when the nurse on duty noted some bleeding and that Ms. Mangal's blood pressure readings had dropped.

Justice Marocco determined that although there was a delay in acting on this information, the nurse did notify the relevant professional on or about noon – thereby satisfying the expected standard of care.

Dr. Girvitz saw Sharon at 12:35 p.m. He did not order coagulation studies when he saw Sharon because she was not bleeding at the time, and, according to the doctor, her blood was not watery. Dr. Girvitz thought Sharon was stable at the time of his assessment. The judge found that the failure to order a transfusion at this point did not fall below the standard of care.

Delay in reporting test results

Coagulation tests were eventually ordered. Marocco J. noted there was unacceptable delay in reporting these tests back to the Post-Anesthetic Care Unit, where Sharon was receiving treatment.

However, because coagulation factors were ordered before the test results arrived, the delay in the test results did not delay the administration of coagulation products.

22 minutes

Marocco also assessed the timing of the decision to return Sharon to the operating room. The judge concluded from the evidence that she should have been sent to the operating room around 1:30 p.m. She only arrived in the O.R. at 1:52 p.m.. This 22 minute delay constituted a breach of the standard of care.

Causation

The next step for the Ontario Court was to decide if the breach of the standard of care led to Sharon Mangal's death: “whether it is more likely than not that failing to decide to operate at 1:30 p.m. contributed to Ms. Mangal’s death”.

The judge determines that Sharon died as a result of Disseminated intravascular coagulation a clotting disorder commonly referred to as DIC that occurred around 2:07 p.m..

The evidence established that in the William Osler health Ceneter, once the decision to operate is made it takes approximately one hour and ten minutes (1:10) to actually commence surgery (the time from decision to incision).

Justice Marocco found that if the decision was made to operate on Sharon at 1:30 p.m., as would have been appropriate, she would not actually have been in surgery until 2:40 p.m.

Unfortunately, the evidence indicated that Sharon was in DIC at 2:07 p.m..

As a result, the court determined that despite the negligence in the care provided to Sharon Mangal, the failure to meet the standard of care did not cause her death.

Conclusion

The judge found there was conduct of the defendants that fell below the standard of care. However, the family was not able to prove that this conduct led to Sharon Mangal's death. Accordingly the case was dismissed.

This case is an example of the tough road that medical malpractice victims face. Even though Sharon’s family lost their wife/mother, and they could prove that the medical professionals fell short of their standard of care, they could not prove the deficiencies actually led to her death.

As a result, they were unable to recover anything to compensate them for their tremendous loss.

Multi-million dollar award to child who suffered birth injury: Court examines compensation for "pain and suffering"

Mon, 29 Apr 2013 11:44:52 -0400

Child Claims Millions Due to Birth Injury

An Alberta court recently decided a case involving a child who was permanently injured during her birth. The case A.T.-B. v. Mah contained an interesting analysis of a variety of legal issues that typically arise in medical malpractice claims.

I thought the case was worth writing about because of the judge's views regarding the plaintiff's claim for compensation for "pain and suffering."

Background

The plaintiff (“A”) was born by caesarian section in 2001. She claimed the defendant, Dr. Mah, was negligent during the delivery process. During her birth, A's supply of oxygen was reduced, causing her permanent and severe brain injuries. According to all of the experts that testified, A will require 24 hour care and supervision on a minute-by-minute basis for the rest of her life.

She claimed damages of $15,000,000 for her loss of earning capacity, loss of the economic advantages of marriage, past and future cost of care, the expenses to manage her remaining life activities and damages for pain, suffering, and the loss of enjoyment of life.

What is pain worth in Canada?

What I found interesting was the Court’s assessment of the non-pecuniary damages (pain, suffering, and loss of enjoyment of life).

Canada has a "cap" on the amount of money injured plaintiffs are entitled to receive for pain and suffering. The rule comes from a 1978 case, Andrews v. Grand & Toy where the Supreme Court of Canada set the “cap” for the “worst case scenario” plaintiffs at $100,000.00.

This amount has been adjusted for inflation since then and now sits at approximately $328,000 in Nova Scotia (it is slightly different in each province since the cost of living in each province is different).

This amount is a stark contrast to the millions frequently awarded in the U.S.A. in states that do not have a cap on non-pecuniary damages.

Worst Case

The Plaintiff in A.T.-B. v. Mah sought to recover the maximum amount for non-pecuniary damages. The Defendant doctor argued that the child was not hurt badly enough to get the maximum award. Justice Graesser of the Alberta Court of Queens Bench recognized the problem with the “worst case scenario” situation and stated:

[543] In personal injury cases, looking for the worst harm in the worst circumstances to the most vulnerable victim is an unfortunate and hopeless analysis. Is it worse to be blind or deaf? Quadriplegic or without much cognitive functioning? Is it worse to be conscious of your loss, or oblivious to it? These arguments are more philosophical thought experiments than legal analysis, and therefore are a poor foundation on which to base useful jurisprudence. A key purpose of the law is to provide predictable results. Trying to rank different but terribly deleterious outcomes is too imprecise a basis for the calculation of damages.

Imprecise calculations?

Graesser J. interestingly compared the cap on damages in personal injury cases to the larger awards granted in defamation cases. Surely the pain and suffering of quadriplegics should warrant higher amounts than the damage to a reputation?

One case, Young v. Bella [2006], involved a graduate student who had her reputation severely damaged by a professor. The Supreme Court of Canada upheld a jury award of $430,000 in non-pecuniary damages. The SCC declines to consider whether the cap from Grand & Toy v. Teno should apply to non-pecuniary damage awards outside of the personal injury context.

Additionally, in Hill v. Church of Scientology the SCC decided a libel case between a Crown lawyer and the church. The SCC confirmed the total jury award of $1.6 million, including a $300,000.00 award for non-pecuniary damages.

Courts have also been willing to reject the cap in sexual abuse cases. In S.Y. v. F.G.C. the British Columbia Court of Appeal awarded non-pecuniary damages of $250,000. In making this decision the Court stated that the “cap” was not applicable to cases of intentional torts of a quasi-criminal nature.

Flawed reasoning?

So what are the reasons for capping non-pecuniary damages for personal injury cases?

In Teno v. Arnold and Andrews v. Grand & Toy the Supreme Court of Canada gave 4 reasons why they felt it necessary to cap damage claims:

1. The claim of a severely injured person for damages for non-pecuniary loss is virtually limitless. The fact that there is no objective yardstick for measuring such loss leaves this area open to inconsistent and widely extravagant awards. The concern I have with this point is that it ignores that fact that judges render their decisions after considering precedents established in other cases, so this fact alone should rein in "wildly extravagant" awards."

2. Damages for non-pecuniary losses are not really "compensatory" as no money can provide true restitution. Accordingly, such damages should be viewed as simply providing additional money to make life more endurable. I refer to this as the: “No amount of money can change what happened, so why should we try?” argument. In fact, I get that argument from defence counsel a lot in sexual abuse cases.

3. Under the law, the plaintiff will be fully compensated for future loss of income and future care costs. I call this the: “We’re paying your bills, what more do you want?” argument.

4. Exorbitant awards for general damages can lead to an excessive social burden (i.e. unaffordable increases in insurance and social costs). But there was no evidence provided on this issue at the original trial or at the court of appeal. It was raised for the first time by the Supreme Court of Canada and appears to have formed one of the foundations of their decision. On this issue the Court in Teno v. Arnold said (at page 333):
The very real and serious social burden of these exorbitant awards has been illustrated graphically in the United States in cases concerning medical malpractice. We have a right to fear a situation where none but the wealthy could own or drive automobiles because none but the wealthy could afford to pay the enormous insurance premiums which would be required by insurers to meet such exorbitant awards

The flaw in this reasoning is that Canada and the United States have very different systems when it comes to defending medical malpractice claims. In Canada, there is a Canadian Medical Protection Association which is responsible for defending most (95%) medical malpractice claims. I touched on the role that the CMPA plays in reducing the number of medical malpractice lawsuits in Canada in a previous article.

I don’t believe the comparison between Canada and the USA is relevant. Additionally, no evidence was provided about what effect, if any, not having a cap would have on auto insurance premiums.

This is the same argument that auto-insurers make in every province when they want caps on compensation inured auto accident victims. But close examination of the facts always shows that damage awards have almost nothing to do with increasing (or decreasing) auto insurance premiums.

In Andrews v. Grand & Toy Justice Dickson said (at page 265):

I would adopt as the appropriate award in the case of a young adult quadriplegic like Andrews the amount of $100,000. Save in exceptional circumstances, this should be regarded as an upper limit of non-pecuniary loss in cases of this nature. [Emphasis added]

The statement “save in exceptional circumstances” logically means there should be exceptions to the rule. The problem is that in the 35 years since the SCC trilogy not a single claim has succeeded in establishing "exceptional circumstances" sufficient to beat the SCC’s cap.

So the Court’s statement has ultimately been treated as a cap on the compensation that every single injured Canadian is entitled to receive for their injuries. In ter Neuzen v. Korn, Justice Sopinka went so far as to say that the $100,000 cap that the Supreme Court of Canada imposed as a "rule of law" was a legal limit for non-pecuniary damages in personal injury cases.

So much for exceptional circumstances.

Applying the cap to A.T.-B.

In assessing the pain and suffering of the plaintiff, the Court was presented with a number of cases involving plaintiffs who were similarly injured. The Plaintiff’s lawyers submitted cases involving plaintiffs who would have been similarly or less injured yet received the maximum award, while the Defendant’s lawyers submitted cases involving plaintiffs who were similarly of more injured yet did not receive the maximum award. With respect to this approach the Court stated:

[564] I do not intend in this decision to go through all of the cases submitted to me, distinguish or explain them, illustrate why A. is worse off than all of the other plaintiffs who received lesser awards, and why A. is entitled to the maximum available award. Suffice it to say that there are cases which obviously attract the maximum award by virtue of their injuries and the effect of their injuries, notwithstanding that there may be others who characterize someone else’s injuries as worse.

Ultimately the Court awards the maximum amount permitted under the Grand & Toy cap, adjusted for inflation.

I have to say that despite the fact that the court upheld what is (in my view) an unfair cap on compensation for non-pecuniary damages, Justice Graesser did exercise some common sense in the application of the rule. The approach eliminates the "worst case" argument and may make it easier for seriously injured victims to receive the maximum amount of compensation allowed under the Supreme Court of Canada cap.

Is it possible to reverse infant brain injury caused by ischemia?

Fri, 19 Apr 2013 14:52:48 -0400

Recent findings out of the Oregon Health and Science University questions the existing understanding that decreased blood flow to a premature fetus’ brain necessarily kills its brain cells.

The Doctors at the University and its attached Children’s hospital have discovered that low blood flow to the developing brain does not necessarily result in permanent loss of brain cells, but rather that it prevents the cells’ abilities to mature. The implications for medical malpractice and birth injury layers is that it may be possible to reverse, or at least mitigate the damage caused by lack of oxygen.

Dr. Stephen Back, professor of pediatrics and neurology at the Oregon University is quoted as saying that the new findings mean:

“...we can focus greater attention on developing the right interventions, at the right time early in development, to promote neurons to more fully mature and reduce the often serious impact of preterm birth. We now have a much more hopeful scenario.”

Approximately 8-percent of births in Canada are pre-term births. There are a number of added risks when a child is born even a few weeks early. One of the major risks is hypoxia or ischemia.

Hypoxia and ischemia are potential causes of cerebral palsy. For more information about the causes of cerebral palsy you can read the article on our website: Birth Injuries Caused by Oxygen Deprivation

According to Statistics Canada there are over 42,000 Canadians living with cerebral palsy. Hopefully studies like those out of the Oregon University can help to bring those numbers down in the future.

It is still too early to say whether this research will lead to fewer cases of CP or help in the rehabilitation of brain injured infants. But the results are promising. Infants are 10 times more likely to be diagnosed with cerebral palsy than with cancer. Premature babies are especially vulnerable.

Canadian Hospital Ratings: Halifax hospitals rank well

Wed, 10 Apr 2013 16:20:14 -0400

CBC-TV’s The Fifth Estate is spearheading an initiative to rate and rank Canadian hospitals.

As a medical malpractice lawyer I applaud any effort that makes health care in Canada more transparent. Peter Drucker is famous for saying: "What gets measured gets managed". So I have to think that using public data to educate the public about hospital performance and asking the public for feedback about hospitals can't help but have a positive influence in the care that patients receive.

The CBC collected data from the Canadian Institute of Health Information (CIHI) and ranked the hospitals using certain criteria.

The hospitals are then awarded letter grades. The specific areas ranked by CBC include:

1. Mortality after major surgery;
2. Nursing-sensitive adverse events, surgical patients;
3. Nursing-sensitive adverse events, medical patients;
4. Readmission after surgery;
5. Readmission after medical treatment.

Of the over-200 hospitals assessed: 20 hospitals received A averages, 140 received B’s, 34 got a C-rating, while 8 hospitals received D’s, the lowest grade given. The 8 hospitals with the lowest grades were in British Columbia, Alberta and Saskatchewan.

Patient Feedback

The other part of the initiative involves patient feedback using this website.

The questionnaire asks users to rate their hospital experience from 1-star (meaning poor) to 5-stars (meaning excellent). The questions ask you to assess whether:

1. You were treated with courtesy and respect?
2. Care was explained to you in a way you could understand?
3. You were attended to in a timely manner?
4. You were treated in a clean environment?
5. You would recommend the hospital to family and friends?

The idea is that the rating site will serve a number of purposes. Patients will be able to check the site prior to choosing which hospital to attend and will be able to make informed decisions as a result – for example: a patient requiring prompt treatment can avoid the hospital ranked poorly for timeliness. Additionally, the primary aim of the website is to encourage the hospitals to pay close attention to the feedback and use it to improve the quality of their services.

Admittedly the sample size for most hospitals is small right now. but if the website catches on I think this could prove to be a very valuable tool.

Halifax Hospital Ratings

Of course since I'm in Halifax, the first thing I did was check out the ratings for the two hospitals here.

IWK Health Centre – The CBC did not receive enough information to fully rate the IWK but received A+’s in 3 of the 5 ranked criteria. Also, patient feedback was provided by 48 people and it was generally very positive with an average of 4 stars.

QEII Health Sciences Centre – Given an overall grade of B. The QEII received B’s for the first 4 areas with an A+ in the ‘re-admission’ criteria. Patient feedback was provided by 87 people with an average of 3 stars.

Right idea

If we can use websites to rank our movies (rottentomatoes.com), our professors (ratemyprofessor.com), our restaurants (yelp.com), and pretty much every other service available, why shouldn’t we use it to rate our healthcare?

If constructive feedback is provided by patients, we can only hope hospital administrators will take note.

By the way, you can leave me some feedback by leaving a comment.

Hospital Medication Errors in Canada: Are patients safer in Canada?

Fri, 05 Apr 2013 10:50:30 -0400

Pat Malone, in my opinion, is one of the most capable medical malpractice lawyers in the United States. That is why I frequently read his D.C. medical malpractice blog.

I am currently representing the family of a young man who died because he received the wrong medication during his treatment in hospital. So an article Pat recently wrote on Hospital Medication Errors caught my attention.

Medication errors common

Pat notes that medical errors in hospitals are far more common than one would assume. He goes on to say that one of the reasons for this is that patients and their loved ones are usually not informed when a mistake occurs.

Patients kept in the dark

The article reports that researchers at Johns Hopkins University School of Medicine, generally considered the top medical school in the U.S. and one of the best in the world, analyzed 839,553 medical errors across the country. The medical errors were reported using MEDMARX, an anonymous, confidential, self-reporting system. The researchers determined that, when an error did occur, patients and their families were very rarely informed. In fact, the study determined that less than 2-percent of all of the errors were disclosed to the patients!

What about Canada?

We would like to believe that things would be different in Canada, wouldn’t we? Well, here in Canada the Canadian Medical Association’s Code of Ethics specifically states that medical professionals are obliged to take all reasonable to steps to prevent harm and, if harm should occur, doctors must disclose it to their patients.

Also, there is a Canadian Medication Incident Reporting and Prevention System (CMIRPS) which is a national program which collects, analyzes and shares information regarding medical accidents.

And the Disclosure Guidelines from the Patient Safety Institute of Canada specifically state:

“Whenever a patient suffers harm, whatever the reason, the healthcare provider or organization has an obligation to communicate to the patient about that harm and, if applicable, the event that led to the harm.”

The Guidelines go on to states that disclosure should occur if the mistake causes any harm or risk of harm. However, disclosure is discretionary if there is a near miss or close call. If the medical professional is uncertain about whether harm has occurred they recommend that disclosure take place.

Are Code of Ethics and Guidelines being followed?

The Code of Ethics and the Guidelines would suggest that Canadians would likely be informed if a mistake was made in their care or medication right? Not quite.

A 2007 report from the Canadian Medical Association Journal specifically notes that Canadian patients are:

“...no more likely to be informed about harmful errors than patients elsewhere.”

It is important that you express any concerns you have to you medical professionals. Remind them of any allergies you have suffered and of any other drugs you are receiving.

Want More Information?

If you or a loved one have suffered injuries that you think may be due to medical malpractice you can buy a copy of my book: Health Scare - The Consumer’s Guide to Medical Malpractice Claims in Canada: Why 98% of Canadian Medical Malpractice Victims Never Receive a Penny in Compensation on Amazon.com. All proceeds from book sales go to charity.

Free Copy to Blog Readers

But supporters who read this blog can contact me through this blog or call us toll free in Atlantic Canada 1-877-423-2050 and we will send you a copy at no charge.

Supreme Court of Canada clarifies law for malpractice victims: Ediger v Johnston

Thu, 04 Apr 2013 16:16:28 -0400

The Supreme Court of Canada released an important decision for medical malpractice plaintiffs today.

Summary

In Ediger v. Johnston, the plaintiff “C” suffered from brain damage caused during her birth. C now lives with spastic quadriplegia and cerebral palsy. She is tube-fed, confined to a wheel chair and is completely dependent on others for all of her daily needs. She has a significantly reduced life expectancy of 38 years.

The physician delivering C, Dr. William Johnston decided to use a mid-level forceps procedure. But he did not inform nor warn C’s mother of the risks of this delivery method. At some point during the delivery Johnston decided to abandon the forceps method and left the room to make arrangements for a Caesarean section. In the meantime C’s umbilical cord was obstructed lead to her injuries.

At trial the judge found the doctor breached the standard of care in that he both should have had surgical backup available before attempting the forceps procedure and he should have obtained consent from C’s mother before commencing the procedure. The trial judge awarded C a total of $3,224,000 in damages.

At the British Columbia Court of Appeal, the doctor successfully appealed the decision. I wrote about the unfortunate British Columbia Court of Appeal decision Court of Appeal Overturns Award to Brain Injured Baby - Ediger v. Johnston

The B.C. Court of Appeal ultimately determined that C’s injuries were not the result of Dr. Johnston’s actions. The B.C. Court of Appeal confirmed that the Courts were adopting a strict test with respect to proving causation in medical malpractice cases. Following that decision in 2011, I said that the case confirmed that medical malpractice cases remained “complicated, risky and difficult to prove.”

Today, the Supreme Court of Canada reversed the Court of Appeal’s decision and ordered that C receive compensation.

The SCC noted that “A ‘mid-level’ forceps delivery is the riskiest type of forceps delivery” and Dr. Johnston did not inform Mrs. Ediger of the potential risks associated with this delivery method. The SCC also paid attention to the fact that, prior to initiating the forceps procedure, Dr. Johnston never inquired about the availability of an anaesthetist or operating room staff in the event that a C-section was required.

SCC Analysis

Standard of Care

The Supreme Court of Canada agreed with the trial judge that Dr. Johnston did not meet the required standard of care, and this caused of the injuries. In their decision the unanimous Court stated:

[53] Dr. Johnston was required, before he initiated the forceps procedure, to take reasonable precautions that would have been responsive to the recognized risk of bradycardia and the injury that results if bradycardia exists for more than 10 minutes. Because it is undisputed that Dr. Johnston failed to take these precautions, which would have resulted in a faster delivery and likely prevented injury from bradycardia, the trial judge’s causation finding is sound. [My emphasis]

The Court also affirmed the trial judge’s findings that Mrs. Ediger would likely have rejected the forceps method in favour of a C-section, had she been properly informed of the risks.

The decision is important because the Supreme Court of Canada implicitly recognizes that a discussion of informed consent is not simply a check list of possible harms/risks. rather the discussion is one that must be "responsive" to the risks involved.

Causation

Previously I had lamented the strict interpretation of causation used by the BCCA. However the SCC had this to say on the legal test to be applied in determining causation:

[36] The Court of Appeal’s reasons also suggest that it understood the trial judge to have improperly relied on Snell v. Farrell, [1990] 2 S.C.R 311, in order to draw an “inference of causation” (paras. 83-85). Snell stands for the proposition that the plaintiff in medical malpractice cases — as in any other case — assumes the burden of proving causation on a balance of the probabilities (ibid., at pp. 329-30). Sopinka J. observed that this standard of proof does not require scientific certainty (ibid., at p. 328); Clements, at para. 9. The trier of fact may, upon weighing the evidence, draw an inference against a defendant who does not introduce sufficient evidence contrary to that which supports the plaintiff’s theory of causation. In determining whether the defendant has introduced sufficient evidence, the trier of fact should take into account the relative position of each party to adduce evidence (Snell, at p. 330).

In paragraphs 39 and 40 of their decision, the SCC commented on the level of certainty required to prove causation:

...As a result, Holmes J. concluded that, although she could not be certain of the precise mechanics leading to cord compression, “[t]he only reasonable inference from all the evidence is that the mid-forceps attempt likely caused the cord compression that in turn caused the bradycardia” (para. 135).
[40] There was no palpable and overriding error in this conclusion.

Good decision?

This decision by the SCC is a victory for medical malpractice victims. The ruling rejects the unduly narrow interpretation of causation applied by the B.C. Court of Appeal. It confirms that certainty is not required to prove cauastion, and confirms that discussions regarding informed consent need to be responsive to the risks involved.

Want More Information?

Free Copy to Blog Readers

But supporters who read this blog can contact me through this blog or call us toll free in Atlantic Canada 1-877-423-2050 and we will send you a copy at no charge.

Health Care Costs: Canada vs. United States

Thu, 04 Apr 2013 12:32:40 -0400

Recently my wife and I took our family to Florida for Spring break. My son Liam made friends with Richard, from Texas. Liz and I had several interesting discussions with Richards parents.

One of the topics we discussed were the differences between the Canadian and American health care systems.

I hear complaints about the wait times of sick patients. Our American friends couldn't comprehend that patients in Canada might have to wait months, or even years for treatment.

However, I do not often hear complaints from Canadians about hospital bills, something our friends from the South know a lot about.

American health care costs

For those Americans who are uninsured, or underinsured, facing a mountain of medical bills is a real possibility. At the ‘top-notch’ hospitals in the U.S. patients are usually required to pay up-front.

“Asking for advance payment for services is a common, if unfortunate, situation that confronts hospitals all over the United States”, according to Julie Penne (Communications Manager for MD Anderson Cancer Center).

The total cost that Sean Recchi, a 42-year-old from Ohio, was told to pay in advance was $83,900 for the treatment plan and initial doses of chemotherapy. Due to his recent employment decisions, Sean had a basic health insurance plan that only covered treatments up to $2,000. per day, an amount way below the costs required by MD Anderson. A breakdown of Sean’s bill shows some extravagant markups, including an approximately 400% markup on the cancer drug Rituxan.

Steven Brill, author of the article Bitter Pill: Why Medical Bills Are Killing Us, makes an interesting observation:

“When we debate health care policy, we seem to jump right to the issue of who should pay the bills, blowing past what should be the first question: Why exactly are the bills so high?”

Brill goes on to note that in 2013 Americans are estimated to spend $2.8 trillion on health care, which is 20% of their GDP and, percentage-wise, approximately double most other developed countries.

Health care costs in Canada

The cost of medical care in Canada is mostly carried by government, rather than individuals. But does this mean that the total cost of care is cheaper? Or more expensive?

According to the Canadian Institute for Health Information, the total cost of healthcare in Canada is approximately $207 billion per year.

With just over 9 times the population, the USA spends just about 14 times the amount that Canada spends on health care every year. Canada spends 11.6% of our GDP on healthcare.

Imagine what the government of Canada would spend on healthcare if the hospital bills and other expenses were inflated as they are in the U.S.?

While we frequently hear complaints from Canadians about the state of the healthcare system, I think we have to be thankful that we don’t face Sean Recchi’s predicament.

Comments?

What do you think? Have an opinion on the healthcare situation in Canada? Let me know by leaving a comment below.

Why I Wouldn't Want Dr. Oz to Operate on Me

Fri, 08 Feb 2013 11:53:23 -0400

Pat Malone is a friend of mine and an excellent malpractice lawyer in Washington D.C. He's also a great source of information about issues pertaining to medical malpractice. That's why I frequently read his blog and just came across once of his recent posts Should Mehmet Oz Operate on You?

Who is Dr. Oz?

You would have to be living under a rock (or not own a television) not to know that Dr. Oz is an American surgeon who was featured on the Oprah show and now has his own television series – The Dr. Oz Show. His daily program focuses on medical issues.

So what does Dr. Oz have to do with medical malpractice law? As Pat Malone explains, Dr. Oz was a surgeon at the New York Presbyterian Hospital until his showbiz career took off. Since then, he operates there just one day a week.

From the OR to the Television Studio

The New Yorker wrote an article about Oz's television success. The article speaks about Oz’s qualifications and expertise and then delves into the oddity that is show business:

“Oz is an experienced surgeon, yet almost daily he employs words that serious scientists shun, like ‘startling,’ ‘breakthrough,’ ‘radical,’ ‘revolutionary,’ and ‘miracle.’ There are miracle drinks and miracle meal plans and miracles to stop aging and miracles to fight fat.”

Dr. Oz has moved from being a full-time surgeon at one of the top hospitals in the United States, to a daytime-television entertainer. There is no issue with his move into show-biz. The issue is whether he should be permitted to continue to perform life-threatening surgeries intermittently?

Pat asks whether Dr. Oz’s skills can stay up-to-date without the constant practice that other, full-time, surgeons receive.

10,000 Hours

In his book, Outliers, Malcolm Gladwell popularized the theory that it takes 10,000 hours to become really successful, or a world-class expert, at any specific task.

No doubt this theory applies to doctors as well – it is clear that thousands of hours are required for surgeons to master their skills.

Can You Forget How to Ride a Bike?

Perhaps Dr. Oz would say that surgery is like riding a bike. After spending thousands of hours in operating rooms, he can't forget what he has learned.

It's true that scientists have proven that you can't forget how to ride a bike.

But what if they stop practicing regularly, like Dr. Oz has? Do skills deteriorate if you are not practicing those skills every day? Surely conducting triple bypass surgery is not like riding a bike.

Surgery isn't Like Riding a Bike!

This study from Columbia University showed that surgical skills deteriorated within months and " fine motor skills, required to perform more difficult tasks, deteriorated more than skills needed for easier tasks."

Turns out that maintaining surgical skills isn't like riding a bike. What a surprise.

Continuing Education isn't Continuing Practice

Most medical associations and Hospital policies require doctors to mantain some level of continuing education. According to the New York Presbyterian Hospital website they have a continuing education program. The program is mostly clinical in nature and is provided to medical and surgical staff through the Columbia and Cornell Universities.

However, continuing education programs are usually meant to keep physicains informed about the latest developments in the profession. The programs are not meant to replace clinical practice: in other words, actually performing medical skills on a day-to-day basis.

Why I Wouldn't Want Dr. Oz to Operate on Me

I think it's fair to say that (fortunately) there is little chance I will ever need Dr. Oz's services. I have no doubt he is a skilled surgeon. But is he as skilled as he was before he began his television career?

Every hospital has their version of "Dr. Oz". A senior doctor who is highly skilled, and well respected. But perhaps the doctor has taken on other administrative duties that reduces their OR time. Maybe the doctor spends a great deal of time teaching medical students or travelling to lecture to other doctors at continuing medical education programs.

So my answer to Pat Malone's hypothetical question is that if I was undergoing complicated, life threatening surgery I wouldn't want "Dr. Oz" who is only in the operating room once a week. I would want the surgeon who is in the OR every day practicing their skills by actually treating and helping their patients.

Medical Malpractice?

Surgeons owe a duty to their patients be in-practice and ready-to-go when called upon to perform a surgical procedure.

If a surgeon’s ‘rustiness’ results the doctor failing to meet the expected standard of care and causes harm to a patient, that would almost certainly be grounds for an action against the surgeon. It would also raise a potential claim against the hospital for permitting the surgeon to perform the operation while out-of-practice.

What Do You Think?

If you had to undergo surgery would you want Dr. Oz to be doing the procedure? Please let me know in the comments.

Dental Procedure Causes Brain Damage: The risks of “sleep dentistry”

Wed, 30 Jan 2013 12:55:06 -0400

A client of mine sent me a link to a story about a case in Manitoba. She thought I would be interested in the article because the situation was so similar to a case I was involved in a few years ago in New Brunswick.

According to the article, last month a four year old girl from Manitoba suffered a brain injury following botched dental surgery. Jairlyn Roulette was supposed to undergo a routine surgical procedure on October 11, but ended up with a permanent disability. Jairlyn needed some teeth capped, some fillings and an extraction and her dentist thought it would be best to subject her to general anesthetic.

In other words, Jairlyn was going to be unconscious throughout the dental procedure.

Half an hour into the procedure, Jairlyn went into cardiac arrest. Jairlyn survived the episode, but she has suffered brain damage as a result.

Apryl Roulette, Jairylyn’s mother, told CBC that her daughter was awake but unresponsive. She is worried that:

“She’s never going to be the same little girl running around, laughing, yelling talking. I don’t know if she’ll ever talk again.”

There is currently investigation underway into the incident. Apryl Roulette is reportedly considering her legal options regarding her potential to sue Children’s Dental World.

Déjà Vu

My heart goes out to Jairlyn and her family. Unfortunately, I know exactly what the family is going through because I have been through it with another family.

Five years ago I represented the family of Davey Paul, a little boy who went to George Dumont hospital to have some cavities filled. They did the procedure under general anaesthesia. He also ended up with terrible brain injuries.

Davey’s parents were facing millions of dollars in future medical expenses to care for Davey and they asked for my help. We pursued a claim against Davey’s dentist, the anesthesiologist and the hospital where the procedure was performed. The Moncton Times and transcript reported on the multimillion dollar payment to Davey.

Dangers of Anesthesia

Davey’s case made me realize the huge risks of general anaesthesia.

The Appeal of "Sleep Dentistry"

There is a trend these days to what some dentists are calling sedation dentistry or sleep dentistry. Google both term and you will see what I mean. In sleep dentistry, the dental procedure takes place while the patient is unconscious under general anesthesia.

Sounds good doesn't it? Go to sleep and when you (or your child) wakes up your teeth will be fixed.

Serious Complications

There are many possible complications from general anesthesia. Some of them not particularly serious or life threatening, but some of them are medical emergencies:

• Allergic reaction to anesthetic agents (potentially fatal);

• Cardiovascular problems;

• Depression of respiration (breathing);

• Aspiration causing choking (the risk is higher with children);

• Brain injury from hypoxia ( lack of oxygen);

• Embolism causing stroke;

• Death.

Given the real and potentially fatal risks associated with using general anesthetic, the experience I gained in Davey’s case makes me question why any dentist would do a procedure like this outside of a hospital that is properly equipped to deal with the type of medical emergency that occurred in this case.

Unnecessary risks?

It is common sense that the safest place to undergo any procedure under general anaesthetic is in a hospital where emergency equipment and personnel are available to assist if there are any complications.

In the United Kingdom, the British Dental Association (BDA) requires that general anaesthetic only be used in a hospital which has critical care facilities.

This is not required in Nova Scotia. Instead, the Provincial Dental Board of Nova Scotia permits the use of general anesthesia in a dental office by licensed dentists who have completed an accredited post-graduate anesthesia program.

The big problem, in my view, is not whether dentists have received the proper training to administer general anesthesia; although this is a legitimate concern.

Emergencies Require Critical Care

The real problem is whether dentists’ offices are properly equipped and whether dental staff have the medical training to deal with the medical emergencies that can arise if something goes wrong! As the British Association points out, when things go wrong under anesthesia getting proper care is critical, a delay of seconds can make the difference in preventing serious brain damage or death.

What do you think?

"My doctor says my baby has Erb’s Palsy. What does that mean?"

Mon, 07 Jan 2013 10:50:05 -0400

I was asked this question the other day by a new mom. As a medical malpractice lawyer in Halifax, I frequently get calls from parents throughout Atlantic Canada whose babies have suffered a birth injury.

Usually they want to know how the injury happened or if the injury was caused by anything the doctors or nurses did during the mom's labour and delivery. Sometimes they just want someone to explain the medical terms the doctors have used.

Erb's palsy and Brachial plexus injuries

Which brings me back to this mom’s question. I explained to her that Erb’s palsy is a type of injury to the brachial plexus (a network of nerves that runs from your neck to your shoulder and into your arm down to your hand).

If the brachial plexus nerves are stretched or torn, it can reduce movement and function in the hand, arm, and shoulder. Usually, the more serious the injury to the nerve the more significant the loss of function will be.

I explained to this young mom that Erb’s palsy is a specific type of injury to the brachial plexus nerve (called an avulsion) where the brachial plexus nerve is completely torn.

If the injury is not corrected the baby can lose some or all of the function in his or her arm.

What causes Erb’s palsy?

As I have already explained, Erb’s palsy is caused when the brachial plexus nerve is torn. The real question is what created the force that caused the brachial plexus nerve to tear?

Shoulder Dystocia

The vast majority of Erb’s palsy injuries are caused when a baby experiences shoulder dystocia during birth. Put simply, shoulder dystocia means that one (sometimes both) of the baby’s shoulders get “stuck” in the birth canal.

There are a variety of techniques that a nurse or doctor can use to successfully deliver a baby who experiences a shoulder dystocia.

However, in some cases, excessive force from pulling, vacuum extraction or the use of forceps can unnaturally stretch the baby’s shoulder to the point where the brachial plexus nerve is torn.

According to the Canadian Pediatrics Society, birth trauma is the most common cause of Erb’s palsy.

Most Babies Recover

Fortunately, 75% of infants completely recover full function of their arm within the first month after birth. However, 25% of babies who have suffered a brachial plexus injury go on to experience some form of permanent impairment and disability.

More Information

I gave this new mom a copy of the article I have written about the Erb’s palsy injuries.

I also thought it might be helpful for her to read “The Facts About Erb’s Palsy”, an article written by a young lady who suffered an Erb’s palsy injury during her delivery.

Finally, I suggested she take a look at Spencer’s Birth Injury , a blog published by two new parents of a little fellow who suffered an Erb’s palsy injury during his delivery.

Have any questions? You can cal me toll-free in Atlantic Canada at 1877-423-2050 or you can contact me through our website.

Checklists Help Improve Medical Care: Is your hospital using one?

Mon, 10 Dec 2012 09:12:37 -0400

Surgical Infections a Huge Problem

It’s not news that surgeries can result in infections.

More than 250,000 patients develop infections in hospitals across Canada every year. 8000 to 9000 patients will die from the infections they develop in the hospital.

According to a report from the CBC, Hospital acquired infections kill more Canadians every year than AIDS, breast cancer and car accident combined.

In addition to the cost in human lives, there is a significant financial cost to fighting hospital infections.

For example, the California Department of Public Health reports that surgical site infections are the second most common type of hospital acquired infection with approximately 290,000 infections per year. This is estimated to cost between 3.5 and 10 billion dollars per year.

Simple Steps = Big Risk Reduction

But there is good news coming out of a recent study involving seven big hospitals in the United States. The project-study resulted in a one-third reduction in infections following colorectal surgeries. This amounts to a reduction of approximately 135 infections – or $4 million in costs.

The Hospitals that participated in the study made 3 simple changes to hospital policy that resulted in a 30% decrease in the rate of post surgery infections.

3 Simple Changes

Three changes were made at the hospitals:

(1) Patients were made to shower with a special germ-fighting soap prior to surgery;

(2) Surgery teams were made to change gowns, gloves and instruments during the operations; and,

(3) Special wound-protecting devices were used on surgery openings to prevent intestine germs from contacting skin.

In addition to decreasing the rate of infections, the Hospital found that patients who did suffer infections recovered faster, 13 days instead of 15 days.

The President of the commission responsible for the study, Dr. Mark Chassin says:

“The improvements translate into safer patient care. Now it’s our job to spread these effective interventions to all hospitals.”

Surgical Checklist Improves Patient Care

I have written about the dangers of surgery and simple ways hospital staff can reduce errors in a previous article: Simple Checklist Helps Prevent Deaths and Complications after Surgery

The surgical checklist requires the operating team to review a list of questions including:

1. Were proper antibiotics administered?;

2. Is the correct patient on the operating table?;

3. Is the correct surgical site identified?;

4. Is sufficient anesthesia and blood supply available?;

5. Does the patient have any allergies?;

6. Were the needles/sponges correctly counted to make sure nothing was left inside the patient?

Considering the results of the US study, maybe there should be a few more sections added to this checklist. If the steps listed above can substantially reduce the rate of surgical infections, surely there should be widespread implementation.

The Checklist Manifesto

Writing this article reminded me of a fascinating book I read a while ago, The Checklist Manifesto by Dr. Atul Gawande. The book explores the power and value of standardizing procedures through the use of checklists. As dry as that sounds, the book is actually an entertaining and educational read.

Dr. Gawande starts with his own experience in seeing how using surgical checklists improves patient outcome then expands his investigation into how using checklists can help each of us become better at what we do.

What do you think?

What do you think? Should checklists be standard practice in hospitals now?

Let me know by leaving a comment.

Informed Consent: When does my doctor NOT need my permission to treat me?

Fri, 07 Dec 2012 15:35:05 -0400

What is "Informed Consent"?

In the medical context, informed consent is the principle that a patient can give proper permission ('consent") to treatment only after being informed of the risks and implications of the treatment.

The law recognizes that you can only give true consent to receive medical treatment if you are provided with all the information necessary to make a decision about the proposed treatment. It is not enough for your doctor to simply ask if he or she has permission to perform a medical procedure.

I have written a number of articles about informed consent. See for example: Informed Consent: Lies, Damned Lies and Statistics in Cancer Claims and What Does Informed Consent Have To Do With My Nova Scotia Medical Malpractice Claim? I have also posted a video explaining the basics of informed consent in my firms Video Library.

Exceptions to the Rule

Like evry "rule" there are exceptions. So today I wanted to discuss when your doctor does not need your permission to administer medical treatment.

Some of the exceptions are obvious, some not so much.

Emergency

The first and most obvious exception is in the case of an emergency when a patient is incapable of giving her informed consent. For example when a patient who needs lifesaving surgery is unconscious because of their injuries. In this case, the potential harm from withholding treatment is greater than the potential danger of the treatment.

For this exception to apply there must also be no immediately available family member to give consent.

Infant or Mental Disability

Related to this exception of emergency is that of incompetence. Here, a patient cannot give consent because of a mental disability or because of infancy. Once again, for the exception to apply, a family member must not be available to give consent.

Explanation May Harm the Patient

The third exception to the duty to disclose is when the physician reasonably believes that full disclosure of all the risks will have an adverse affect on the patient's physical or psychological well being.

In other words, if there is a necessary procedure with particularly frightening risks involved, a doctor may reasonably decide not to disclose all the details of the risks to the patient – to save them from the anxiety. Relying on this exception is problematic and the the doctor should be prepared to clearly justify why the risks were not fully disclosed.

Everyone Knows

A physician does not have to disclose risks to a patient that are considered to be common knowledge or when the patient already knows of the risks. For example, a doctor may not have to disclose the risk of infection following surgery because patients are presumed to know that the risk exists.

Doctor Didn't - Couldn't Know

A fifth exception arises in instances when a physician does not know of a certain material risk. Obviously a doctor can't explain a risk they don't know about.

But this isn't an excuse for doctors not to be well informed. Doctors are expected to meet the standard of a reasonable physician when it comes to educating themselves about risks.

For example, a doctor would not be liable for harm resulting from the prescribing of flu medication if the patient has a previously undiscovered sensitivity to the medication.

Doesn't Want to Know

The final exception to the duty to disclose is when a patient waives the right to full disclosure by requesting that the physician not explain the risks of a treatment. I have to say i haven't found any reported decisions in Canada where this exception has been applied, although there are some cases in the States.

Want More Information?

If you would like more information on informed consent, and the exceptions, contact me for your free copy of one of the public legal education resources I have written: Health Scare: The Consumer's Guide to Medical Malpractice Claims in Canada or take a look at this article:Informed Consent to Medical Treatment

Doctor negligent but patient loses med mal claim: Fowlow v. Gupta

Mon, 26 Nov 2012 10:24:22 -0400

As a medical malpractice lawyer I am often faced with explaining the difference between proof of negligence and proof of harm. Clients find it difficult to understand how a doctor may be found to be negligent; but still not be responsible for the patients injury or death.

Fowlow v. Gupta

A perfect example is the case of Fowlow v. Gupta which was recently decided by the Ontario Supreme Court.

The claim arose from the tragic death of Mr. Fredrick Fowlow, who died on May 1, 2007, after undergoing surgery at the Southlake Regional Health Centre. The action was filed by his widow and children against the surgeon who performed the operation, Dr. Deepak Gupta.

Summary of Facts

Mr. Fowlow worked as a plumber right up until the days before his death. As a result of a heart attack, Mr. Fowlow was to undergo bypass surgery which would require the insertion of a graft to complete the by-pass. Mr. Fowlow's surgery was postponed when it was discovered that the box containing the graft was no longer sterile. Mr. Fowlow was called back to the hospital a week later for the surgery.

Wrong Graft

Dr. Gupta used an “IMPRA Flex Thinwall” graft during the surgery. Dr. Gupta admitted that he did not know that the IMPRA graft included a warning that it was not recommended for the type of bypass procedure that Mr. Fowlow was having.

Mr. Fowlow was discharged 4 days after the operation. His wife took him to their home, he was helped into bed where he took a nap. Mr. Fowlow’s son went to the pharmacy to fill out the prescription for his dad. When he returned he found that Mr. Fowlow had suffered massive external blood loss. Tragically, he could not be resuscitated.

Graft Disconnected

An autopsy determined that the bypass tube was completely disconnected at the axillary vessel ridge. There was external blood loss through the overlying scar.

How?

The autopsy was able to determine HOW Mr. Fowlow died: The graft detached.

The Court noted:

[35] The cause of death was determined to be the completely disconnected bypass tube, with secondary localized soft tissue hematoma and external blood loss through the overlying scar, likely complicated by an acute cardiac ischemic event.

Informed Consent

The first step in any medical mapractice claim is determining whether the patient gave "informed consent" to the medical procedure or treatment. I wrote about this in detail in a previous article: What Does Informed Consent Have To Do With My Nova Scotia Medical Malpractice Claim?

Basically, the principle of informed consent is that you can only give valid permission for medical treatment if you are provided with all of the information necessary to make an informed decision about the proposed treatment.

The Court in Fowlow found that Dr. Gupta met this standard when he informed Mr. Fowlow that there was a 3% risk of mortality (death) after the procedure. I have written about the use of statistics when discussing consent in a previous article: Informed Consent: Lies, Damned Lies and Statistics in Cancer Claims - Gilberds v. Sobey

Doctor was Negligent

The judge determined that Dr. Gupta failed to read the warning regarding the use of the graft in the particular procedure used in Mr. Fowlow's operation.

The Court ruled that, in not reading the warning on the graft, Dr. Gupta fell below the standard of care.

In other words, Dr. Gupta was negligent.

Justice Stinson ruled that, even though Dr. Gupta failed to read the warning on the graft, Dr. Gupta properly informed Mr. Fowlow of the risks of the operation, and therefore Gupta was not liable for failure to obtain informed consent.

Negligence Isn't Enough!

Proving that the doctor who treated you was negligent is only the first step in winning a medical malpractice case. In my article: What Do I Have to Prove to Win My Medical Malpractice Case? I outline the 4 requirements for success in a medical malpractice case.

1: 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?

2: 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.

3: Causation: The plaintiff must also prove 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.

4: 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.

Why?

The judge decided that although the evidence presented to the court determined that the graft failed, the evidence did not explain WHY the graft failed.

[36] … the autopsy records contain no detailed description of the mechanism by which the graft and axillary artery became detached… The evidence merely establishes that the graft was no longer attached to the axillary artery as it had been at the conclusion of the operation. The specific cause of the detachment was not addressed in the autopsy report nor directly in the evidence at trial.

Stinson J. stated that the evidence revealed that there are a number of reasons why a graft can detach.

Doctor Negligent But...

Justice Stinson stated:

[85] I have concluded that, in several respects, Dr. Gupta’s conduct fell below the standard of care. For the plaintiffs to succeed, however, they must establish a casual connection between the conduct of Dr. Gupta and the event that resulted in Mr. Fowlow’s death. In my view, they have failed to do so.

The Court concluded the Plaintiffs had failed to prove Dr. Gupta’s negligence caused Mr. Fowlow's death.

While the Plaintiffs in Fowlow were able to establish the standard of care, prove that there was a breach of the standard, and prove that clearly there was a loss, they were not able to prove that the Doctors breach was what caused the loss.

Conclusion

Without proof of why the graft detached Justice Stinson wasn’t able to say that Mr. Fowlow's death was caused by Dr. Gupta's negligence.

Does the Workers’ Compensation Act Immunize Hospitals Against Medical Malpractice Claims?

Tue, 09 Oct 2012 15:06:52 -0400

As a Halifax medical malpractice lawyer I frequently get calls from other lawyers who don't practice this area of law, wondering if their client has a potential medical malpractice claim.

This week I got a call from a colleague of mine, and since his question is one I have been asked many times over the years, I thought it would be helpful to post some information here in case it is helpful to anyone else in the same circumstances.

Work Injury Leads to Negligence in Medical Treatment

The situation was this: The client suffered a back injury at work. He was covered for the injury by Workers Compensation. He was referred for back surgery to treat his injury. The client claimed the treatment her received in the hospital was negligent and actually made his back injury worse. He wanted to know if he could sue the doctor for medical malpractice.

Workers Compensation Law Bars Lawsuits

The first thing non-lawyers have to know is that there is a statutory bar in the Workers’ Compensation Act that says an injured worker is not allowed to sue their employer (if they are covered by WCB). Basically in exchange for the automatic (no-fault) benefits workers get under Workers Compensation, the worker gives up the right to be able to sue.

Not Just Your Employer

What most workers don't realize is that the bar to filing a lawsuit also applies to any other employee or employer covered by WCB.

Are Hospitals Employers Under WCB?

So the question is: "Are who treat patients considered to be employers as defined by the Workers Compensation Act?"

The answer is a little ironic.

Hospitals (Usually) Not Doctors Employers

It is well established in Canadian law that Hospitals (usually) cannot be sued for the negligent acts of doctors who have privileges at the hospitals. Doctors are (usually) considered to be "independent contractors" not employees. Hospitals (usually) will not be held responsible (the legal term is "vicariously liable") for a doctor’s negligent conduct.

[I qualify these statements with the word "usually" because every case depends on it's own facts and there can be exceptions to every rule. Which is why if you have a question about medical malpractice claims, you should hire an experienced medical malpractice lawyer.]

In cases where WCB claims have been involved, there is a line of authority that says Hospitals are employers and therefore they are immune from being sued EVEN IF THEY WERE NEGLIGENT IN THEIR TREATMENT!

An Example From N.S.

The Nova Scotia Court of Appeal dealt with this issue in Queen Elizabeth II Health Sciences Centre v. Nova Scotia (Workers’ Compensation Appeals Tribunal) In that case the plaintiff, Mr. Erl, was injured at work and received workers’ compensation. He claimed the medical treatment he received was negligent and caused further injuries.

Mr. Erl wished to sue the hospital and the doctors involved. The issue for the Court of Appeal to decide was whether the hospital was an employer subject to the Workers’ Compensation Act and therefore the civil action would be barred.

The Court’s analysis begins by noting the premise set out by Sopinka, J. at the Supreme Court of Canada:

[34] “The bar of civil actions is a central feature of the workers’ compensation system and one that is fundamental to its integrity.”

The argument was made that since the doctors that treated Mr. Erl were not considered to be employees under the WCB then the hospital could not be considered to be an employer.

The Court of Appeal said:

“An employer may have servants and agents who are not workers covered by the Act but that does not mean that their employer is not subject to the Act.”

The Court of Appeal ultimately concluded that the hospital was clearly an employer under the act, evidenced by their nearly $4 million payment in assessments under the Act. Therefore, the civil action was barred.

Board Follows Decision of NSCA

The Court of Appeal's reasoning was followed in a Nova Scotia Workers’ Compensation Appeals Tribunal decision from February of this year.

An employee, Kelly McKnight, was injured during the course of her employment. Kelly sought to recover in tort law for the losses not covered by her workers’ compensation (i.e. persistent pain, loss of enjoyment of recreational activities, etc.). The tribunal asserted that Kelly was a covered worker and the defendants in the action were covered employers and therefore her actions were barred by s.28 of the Act.

Are Non-Workers Claims Barred?

Kelly’s husband, Lloyd McKnight, was recovering from surgery and was physically impaired when Kelly suffered her injury. Lloyd suffered from the loss of her assistance. Mr. McKnight was not an employee or employer as defined in the Act.

The tribunal assessed whether Lloyd would be barred from recovery by citing the Queen Elizabeth II Health Sciences Centre decision.

The tribunal found:

“It follows from this analysis that s. 28 has a dual effect: for covered workers, it presents a potential bar to action against any covered employer; for a covered employer, it offers a potential shield to an action arising from any covered worker’s injury… Even though Mr. Erl was not a worker employed by the hospital, he could not sue the hospital. The Court implicitly found that the hospital was immune from suit by any covered worker, employed by any employer, so long as the action was grounded in a compensable injury.”

Is This Fair?

If you have been injured because of someones negligence, you might think it is unfair that the Workers Compensation Act potentially takes away your right to sue for compensation.

The justification for this line of law is that Workers’ Compensation is a no-fault system. Employers pay into the Workers Compensation program and workers are able to recover for their injuries without having to prove liability or having to bear the expenses and lengthy time requirements for litigation.

The trade-off is that there is a statutory bar preventing injured workers from seeking compensation for their pain and suffering, etc.

Is this fair? Should hospitals be protected from law suits when they or their employees have provided negligent treatment? What do you think?