Wagners Medical Malpractice Lawyer Blog

Birth Delivery Often Demands Urgent Care

Sat, 18 May 2013 15:06:59 -0400

One particular area of obstetrical care that is especially significant with respect to medical malpractice litigation is the issue of urgency.

A sense of urgency so often surrounds the practice of obstetrics when problems arise in the birth of a child. In labour, every fetus is hooked up to a fetal heart rate monitor. This device is fundamentally important in that it gives nurses and doctors a good indication about the health and/or distress of the baby. Once there is evidence of abnormal fetal distress from oxygen deprivation, it is crucial that doctors and nurses recognize it and act quickly. It is the standard of care that they treat it as a medical emergency. Given that the degree of risk is one of the essential factors in determining the standard of care, doctors in charge of delivering babies must respond in a timely and often urgent manner when problems arise. As one case highlights: when obstetrical problems occur, "wasted minutes can have tragic consequences".

In many obstetrical cases, doctors have been found liable because their response to critical problems were found to be unreasonably slow. One example of this is a where a family doctor in change of delivery was found to have been negligent in his failure to recognize potential fetal compromise and appropriately speed up the delivery.

The child in McGlone v. Kelly suffered a brain injury at birth that lead her to develop cerebral palsy. She was significantly disabled. Her mother had an uneventful pregnancy. Everything was healthy until near the end of her labour. At that point, the fetal monitoring strips became abnormal. The judge discussed what happened in the medical malpractice decision:

Dr. Farmer said the strip showed an "ominous" pattern, and Dr. Braithwaite said that even if one could not interpret the strip, it was so obviously abnormal that Dr. Kelly should have become alive to the need for action.

There is expert evidence that the strip was difficult to interpret, and could have resulted in an innocent interpretation. Nevertheless, it was, in my opinion, negligent of Dr. Kelly not to have noticed that there was a fetal heart pattern inconsistent with his assumption as to what was happening. Dr. Kelly was not interpreting the strip and fetal heart in the manner that could lead to an innocent interpretation. He was not paying sufficient attention to it.

The brain damage that caused Taylor's injuries occurred within 30 minutes, and probably within 15 minutes, of her birth. All of the troubling features of the strip which Dr. Kelly referred to as "nuances" occurred well before the 15-minute window before birth; and at least three were before the head started to crown at 23:14 hours.

I am of the opinion that Dr. Kelly was negligent in not paying adequate attention to the data being produced by the fetal heart monitoring equipment and in not noticing that rapid accelerations in the rate of the fetal heart were not associated with uterine contractions, and that Dr. Kelly's negligence was a material cause of Taylor's birth not being expedited and her being injured at birth by asphyxiation.

This case represents one of many findings of negligence against doctors who did not use the necessary level of urgency in the face of fetal distress. Tragic consequences were the result. This young girl's cerebral palsy was ultimately preventable.

Children who suffer cerebral palsy as a result of medical malpractice have significant cost of care needs that they are entitled to. The medical malpractice lawyers at Wagners have a proven track record of success at obtaining compensation of families and victims of medical malpractice.

Cerebral Palsy Patient Has $3.2 Million Damage Award Restored By Canada's Highest Court

Wed, 15 May 2013 14:56:35 -0400

The medical malpractice lawyers at Wagners have represented, and continue to represent, many cerebral palsy patients (and their families) in medical malpractice law suits against the birthing doctor and nurses. Quite recently, the Supreme Court of Canada released an important decision in a medical malpractice case relevant to the assessment of negligence and causation in such cases.

Personal injury lawyers assisting the injured are applauding the clarity of the decision in Ediger v. Johnson. In this important decision, Canada's highest Court restored a finding of liability against a doctor involved in the birth of an injured patient. The Court restored a $3.2 million dollar award to the Ediger family. The birth took place in 1998. The plaintiff's mother was induced in labour by her obstetrician and gynecologist, the defendant doctor, after he determined that her pregnancy was high risk. Complications were encountered during the delivery.

As a result, the doctor attempted a "mid-level rotation forceps delivery". This type of deliver method is the riskiest type of forceps delivery that obstetricians are permitted to attempt because it takes place when the baby is at the beginning of the birth canal. The baby's head had to be rotated before the baby could be assisted through the remainder
of the birth canal.

These risks included compression of the baby's umbilical cord, leading to persistent fetal bradycardia (a sustained drop in the baby's heart rate prior to delivery), which may in turn cause severe brain damage. The doctor did not explain these risks to the mother. He did not obtain her consent.

Prior to initiating the forceps procedure, the doctor did not inquire into the availability of an anaesthetist or operating room staff to assist with an emergency C-section in the event that complications were to arise during the forceps attempt. The procedure proved unsuccessful. After some time, the doctor made the decision to abandon it and perform an emergency c-section. He called the necessary physicians, but was informed that they were busy and that he would have to wait. During this time, the baby's fetal heart rate suddenly dropped, indicating persistent fetal bradycardia.

An emergency c-section was performed. The baby was delivered approximately 20 minutes after the doctor's failed forceps attempt (approximately 18 minutes from the onset of bradycardia). As a result of the sustained bradycardia, the female infant suffered severe and permanent brain damage. She lives her life with spastic quadriplegia and cerebral palsy. She is non-verbal, tube-fed, confined to a wheel chair and totally dependent on others for all of her daily needs. Her life expectancy is significantly reduced: 38 years.

A medical malpractice lawsuit in Canada requires proof of a duty of care, a breach of the standard of care, compensable damage and causation. The Court can draw inferences against a doctor who does not introduce sufficient evidence. The Supreme Court made its most important inference on the issue causation. The sole issue before the Court was whether the doctor's negligence caused the brain injury.

The Court summarized the law of causation as follows:

This Court recently summarized the legal test for causation in Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181. Causation is assessed using the "but for" test: Clements, at paras. 8 and 13; Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333, at paras. 21-22. That is, the plaintiff must show on a balance of probabilities that "but for" the defendant's negligent act, the injury would not have occurred: Clements, at para. 8. "Inherent in the phrase 'but for' is the requirement that the defendant's negligence was necessary to bring about the injury -- in other words that the injury would not have occurred without the defendant's negligence"

Ultimately, the Court concluded that the trial judge was correct in finding that the doctor's negligent acts caused the cerebral palsy, stating:

Faced with this conflicting expert testimony on the feasibility of the "displacement" theory and evidence of other potential causes, it was incumbent upon Holmes J. to weigh the evidence before her and determine whether Cassidy had proven causation on a balance of the probabilities...[Experts'] testimony regarding the physical effects and distortions of labour contractions, as well as the timing of the steps leading up to a cord compression, were consistent with what occurred here... multiple experts testified that mid-level forceps procedures are potentially dangerous and carry the risk of acute cord compression... the close proximity in time of the forceps attempt and the bradycardia supported the conclusion that the forceps attempt was connected to the cord compression. 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".

There was no palpable and overriding error in this conclusion. It was open to Holmes J. to accept Drs. Shone's and Farquharson's testimony regarding the displacement theory over Dr. Johnston's testimony. It was also open to her conclude that the close proximity in time between the forceps attempt and the bradycardia, combined with the well-recognized risk of bradycardia associated with mid-level forceps deliveries, supported a finding of causation in this case.

This case is important in that it helps patients with cerebral palsy in establishing causation. Where brain damage occurs in utero, it is often difficult to establish the cause with scientific certainty. The Supreme Court of Canada has explicitly endorsed an approach which allows Courts to make reasonable inference necessary to establish a causal link.

Medical Malpractice - Failing To See What Was There To Be Seen.

Fri, 10 May 2013 14:48:34 -0400

Unfortunately, it is too often the case that Nova Scotia, New Brunswick and PEI patients are discharged from hospital prematurely, in the face of evidence that they have an ongoing medical complication. An appeal from a medical malpractice trial decision released recently highlights what can happen when doctors and surgeons negligently fail to observe important information concerning a patient's condition.

In that medical malpractice case, a 50 year old social worker was suffering from stress incontinence. She was referred to a surgeon for treatment. The doctor advised her that there was no medication available for her problem and that the only effective treatment involved surgery.

The doctor prescribed a minimally invasive sling procedure used to treat the stress incontinence. The procedure involves the insertion of poly propylene mesh or tape under the urethra near the vagina.

The hospital where the doctor worked used a slightly different surgical kit for sling procedure than what the doctor was previously used to. Because the doctor had no experience with this type of surgical kit, she did some research on the procedure and asked another doctor to observe her performing several procedures prior to performing the surgery on the plaintiff. The surgery was performed. The doctor wrote that there were no surgical complications.

However, the next day the plaintiff was suffering excruciating pain in her pelvic area. Nevertheless, the doctor ordered her to be discharged home. Approximately one week later, the plaintiff saw the doctor for a scheduled follow up appointment. She was still experiencing severe pelvic pain. The doctor was unconcerned. No tests or follow up appointments were ordered.

The plaintiff's pain continued. Several months later, she was referred to a different doctor who ordered a cystoscopy which showed that a portion of the tape from the sling procedure had perforated her bladder. The tape was removed via laparoscopic laser surgery.

Unforunately, the pain and disability continued. The plaintiff would have to have several more surgeries over the following years to remove pieces of tape from her body. She continues to suffer the consequences of what was a relatively routine surgery. She commenced a lawsuit against the doctor for medical malpractice.

Interestingly, after finding out about the lawsuit against her, the doctor made two alterations to the plaintiff's medical chart. She added notes identifying the risks of surgery as "bladder, bowel injury". She also added to the chart that she "advised if pain persists will require cystoscopy and probable removal of the tape [right arrow] moving to Saskatoon, said will contact a doctor there if necessary". These conversations, in fact, never took place.

Following a trial, the judge found the doctor had acted negligently in ignoring the presence of blood in the plaintiff's urine post-surgery or failing to grasp its significance. He wrote:

... [the doctor] either failed to observe blood in the patient's discharge at the conclusion of the operation and during the patient's stay in the hospital, or ignored the presence of blood or failed to grasp its significance. I accept that the nurses would have told her about it. In failing to observe the blood, or in ignoring the blood or in failing to grasp the significance of the blood, the defendant did not meet the standard of care to which the plaintiff was entitled. Her failure to evaluate the presence of blood in the patient's urine was a failure to meet the standard of care which she owed the plaintiff.

In determining the consequences of the failure to observe the blood in the discharge during surgery and also to provide appropriate post-operative care, the judge stated:

While the negligence I have found was not the cause of the perforation of the bladder and the urethra, the defendant was negligent during the surgery and post-operatively in failing to observe blood in the plaintiff's discharge or ignoring the blood in the discharge and its significance and thus lost the opportunity to rectify the problem at that time. In my view, [the doctor's] failure to observe the indicia of bladder perforation, or her disregard of the blood in the discharge and its significance caused the ongoing pain and suffering of the plaintiff.
. . .

If [the doctor] had observed the blood in the discharge of the plaintiff or heeded the concerns of the nurses, other procedures such as a cystoscopy could have been performed to locate the transection, much as it was done on August 4, 2005, when Dr. Arwini discovered the tape. If the tape had been discovered on April 8 or 9...Ms. Baum's problems could have been resolved at that time...removal could be done up to approximately one week after the initial surgery without undue difficulty.

... if her problems had been discovered while she was still in the hospital, the complications could have been resolved immediately by surgery. This failure to observe the patient's condition meant that the patient's surgery was not corrected, leaving her in pain and discomfort for years.

The doctor appealed these findings. The Court of Appeal upheld the finding of negligence and causation against the doctor. Total compensation of $270,000 was provided to the injured plaintiff.

Informed Consent-Surgery

Wed, 03 Apr 2013 14:27:22 -0400

The Ontario Superior Court of Justice had the opportunity to review the law as it relates to informed consent for elective medical surgeries in Tiglao v. Sleightholm, 2012 ONSC 3092.

The plaintiff was a 46 year old woman born in the Philippines and who spoke very little English. Her primary language was Tagalog and it was obvious to the Court that living circumstances had made it such that she had never assimilated into the English-speaking culture in Canada. The Court found that the plaintiff had no fluency in even basic English. Prior to the surgery, the plaintiff complained of having small breasts that were asymmetrical and "drooping". She also had a three inch scar on her lower abdomen as a result of a previous C-section. These imperfections bothered the plaintiff who decided to undergo a breast augmentation and "tummy tuck" to be performed by the defendant.

The evidence presented at trial indicated that the plaintiff and her English speaking husband attended the defendant's office for a consult during which the defendant was present for 20 minutes. The consult was primarily with the office manager and was entirely in English. The defendant gave evidence that during the 20 minutes of the consult for which he was present, he spent 5 minutes taking measurements and in the remaining 15 minutes explained all the major aspects of the surgeries, including the procedures themselves and the associated risks:

The evidence of the plaintiffs and the evidence of Dr. Sleightholm is conflicting as to what was discussed on March 6, 2007, the first consultation date. Dr. Sleightholm testified that in 15 minutes he explained all the risks of the two surgeries and all the different methods of doing implants to the plaintiffs. He testified that he also explained about the size and location of the incision to remove Ms. Tiglao's C-section scar. The doctor testified that he also explained, in the same 15 minutes - hematomas, seromas, skin necrosis, possible asymmetry of the breasts, malplacement of the implants, infection and incomplete C-section scar removal. Both of the plaintiffs adamantly deny that they were informed of any such risks by Dr. Sleightholm. In my opinion, Susan Tiglao would never have understood explanations of these medical, technical words, legal words and/or these medical terms, even if the doctor did tell her all of this information in the 15 minutes he spent with her and her husband (after he took her measurements). This 15 minute period was the only consult between Dr. Sleightholm and the plaintiffs prior to Ms. Tiglao's pre-op appointment on the day of surgery (July 18, 2007).(para 20)

The majority of the initial consult was spent with the office manager who was in charge of interviewing patients and getting their medical histories. Additionally, the evidence revealed that all office consults and visits were conducted in English, despite the fact that the clinic employed a Tagalog speaking nurse. The evidence was clear that the plaintiff did not understand the nature of the consents she signed and did not appreciate their importance. The Court also accepted the plaintiff's evidence that she was not informed of the risks of the surgeries and expected that any such risks would have been communicated to her.

The Court discussed the law regarding informed consent stating generally at paragraph 22:

As the legal principles governing informed consent are well settled, they can be stated as they were in Revell v. Heartwell, 2010 ONCA 353 (CanLII), at paragraphs 42 and 43, as follows:

Doctors must disclose all material risks to patients before proceeding with treatment. A material risk is one that a reasonable person in the patient's position would want to know about before deciding whether to proceed with the proposed treatment. Risks that are rare will be material if the consequences of those risks are serious. See Van Dyke v. Grey Bruce Regional Health Centre,2005 CanLII 18841 (ON CA), (2005), 255 D.L.R. (4th) 397 (Ont. C.A.) at para. 63, leave to appeal to S.C.C. refused, [2005] S.C.C.A. No. 335, [2005] 3 S.R.C. viii.

In Matuzich v. Lieberman, [2002] O.J. No. 2811 (Ont. S.C.J.) at para. 53, Ferrier J. provides a helpful guide to approaching the question of whether there has been adequate disclosure of the material risks attendant on a procedure or treatment. He said that disclosure involves three major elements:
1. An explanation of the procedure and the injury that may occur;
2. An explanation of the frequency or likelihood of the injury (risk) materializing; and,
3. An explanation of the consequences of the injury (risk), should it occur.

Obviously this task is more involved when there is a language barrier between the patient and the medical professional. At paragraph 32 the Court quoted from Malinowski v. Schneider, 2010 ABQB 734:

...When faced with a patient whose personal characteristics might suggest there is a language barrier to his or her understanding of a consent form, the medical practitioner ought to take steps to ensure that language limitations have not prevented or limited the patient's understanding of the form that the patient has been asked to read and sign. A person of limited education, or one with a limited knowledge of the English language, or one who is under the effects of medication or some other factor which might limit concentration or capacity, may have difficulty understanding concepts such as "spinal joint dysfunction", "spinal mobility", "contra-indicated", or other words or expressions used in the form. When faced with such a patient, medical practitioners should ensure that the patient understands the meaning of the words and expressions as well as the overall meaning of the document.

The Court noted that there is a higher burden on the medical professional to disclose the nature of the procedure and the risks involved where the patient has a limited understanding of the English language, or has difficulty in comprehension by reason of infirmity or disability.(Byciuk v. Hollingsworth, 2004 ABQB 370, para. 33). In conclusion, the Court stated as follows at paragraphs 45 and 46:

It is clear from the review of these cases that the patient's illiteracy and/or ability to comprehend and/or fluency in English are significant factors to be considered when the doctor explains to the patient the risks related to the surgery to be performed. There is a 'special duty' placed on the doctor in these circumstances to be certain that his/her patient understands the risks and the alternatives available to the patient.

Moreover, a doctor cannot relegate his obligation to ensure informed consent is given to an employee or a spouse of the patient. Dr. Sleightholm was not able to rely unduly on Mr. Fraser to explain the risks secondhand. The doctor must satisfy himself/herself that he/she is proceeding with the informed consent of his own patient.

The Court found that the defendant made no efforts to ensure the plaintiff was fully informed of the procedures, given the plaintiff's lack of understanding of the English language. The Court went on to note that the question becomes whether a reasonable person in the patient's position would have decided to proceed with the operation even if she had been advised of these risks?" (Munir v. Jackson, 148 A.C.W.S. (3d) 151). The Court accepted the plaintiff's evidence that, had she known of the risks, particularly the chance that her breasts would become more asymmetrical and the chance that she would end up with a larger scar on her abdomen, she would have never had the procedure. The court awarded damages in the amount of $90,600.

Cerebral Palsy Birth Injury - Limitation Period

Wed, 27 Mar 2013 14:21:28 -0400

Cerebral palsy is one of the most serious health problems caused by birth injuries and medical malpractice during labor or childbirth. The condition is thought to be caused by a lack of oxygen to the infant's brain during child birth.

Because cerebral palsy is often due to a lack of oxygen to the brain (called hypoxia) or to the body (asphyxia), premature delivery, or birth trauma, it is often preventable through reasonable medical care. The birth injury can often be avoided where doctors and nurses appropriately monitor fetal heart rate, detect prolapsed umbilical cord, perform medically necessary cesarean sections, and avoid mistakes using instruments like vacuum and forceps in performing a delivery.

When a child is given a diagnosis of cerebral palsy, parents typically ask themselves, "what caused this to happen to my child?" The particular cause may not be known. In such cases, it is beneficial for the family to seek a medical legal review of the circumstances surrounding the cause of their child's condition. If the cause of the child's cerebral palsy can be attributed to medical malpractice, the parents and child may be entitled to compensation for the injury. Such compensation can potentially be life-changing. Of most significance to families, the compensation typically includes the cost of future care needs to help the child life a long, independent life.

It is very important to know that the family of a child with cerebral palsy can have the cause reviewed at any time. There are limitation periods applicable to medical malpractice claims. For example, Nova Scotia's Limitations of Actions Act, RSNS 1989 c 258, states that claims in medical malpractice must be initiated within two years of the termination of medical services.

Critically however, this two year period does not start until the child reaches the age of majority. This means that the family of a child with cerebral palsy can have the birth injury investigated and commence a claim for care needs at any point until the child turns 21 years old.

Cerebral palsy is a long-term chronic medical condition that requires long-term supportive care services. The family of an individual with cerebral palsy is likely to incur significant expenses related to the ongoing need for medical care, special education services, developmental assistance, and assisted living. Given these costs, and given that funding can provide a much greater quality of life for the family and child, it would be prudent for the family of the of a child with cerebral palsy to have the cause investigated through an experienced medical malpractice law. As mentioned, this can be done any time before the child turns 21 years old.

Increased Risk of Harm-More Onus on Treating Physician

Sun, 13 Jan 2013 16:23:45 -0400

A recent medical malpractice decision highlights a doctor's responsibilities when treating a patient at increased risk of harm.

The patient was a 17 year old labourer, who worked at a window manufacturing company. He was attending university part-time. On an afternoon in 2004, he injured his hand at work. He went to the ER department to receive suturing of his laceration.

He waited approximately an hour and half before being seen by the ER doctor, Dr. Tu. The doctor applied freezing to the patient's finger by injecting anesthetic, and then led him into a treatment room, where there was a sink with a high pressure water supply. Dr. Tu turned on the cold water faucet and instructed the patient to hold his hand under the stream of water. Dr. Tu intended this to aid in the cleaning of the wound, prior to suturing. He then left the patient unattended in the treatment room.

While Dr. Tu was absent, the patient fainted. He struck his head on the floor. When he awoke, he complained of pain in the back of his head. Dr. Tu suspected that his patient had suffered a brain injury, and ordered a CT scan of the head to be performed. The scan showed evidence of a basal skull fracture, and a contrecoup-type injury in the frontal lobes.

A follow-up MRI investigation showed three areas of hemorrhagic contusion and/or scarring in the frontal lobes, and at least thirty additional areas of hemorrhagic diffuse axonal injury in the frontal, temporal, parietal and occipital lobes.

The patient commenced a medical malpractice lawsuit against Dr. Tu. It was alleged that he was negligent in leaving him unattended in the treatment room.

The Court found Dr. Tu liable for the patient's brain injury. While there was always some risk of patients fainting, in and out of hospital, the Court found that the risk to this particular patient was elevated because of the painful injection he received minutes earlier. Dr. Tu's negligence was determined on the following logic:

72 As I have stated, it is evident that the emergency department was busy on the afternoon in question, and that Dr. Tu was being confronted with a number of complex cases. In the case of Mr. Mair, Dr. Tu appears possibly to have acted more out of habit than on the basis of an individualized assessment of Mr. Mair's needs and of the risks of proceeding in accordance with what in other circumstances may have been an acceptable standard practice.

73 As I have found, Mr. Mair's fainting episode, and his brain injury, likely occurred as a direct result of the stress of the painful anesthetic injection. The risk of Mr. Mair fainting as a result was small, perhaps unquantifiable, but was foreseeable.

74 Whether or not the evidence establishes that Dr. Tu met, or fell short of, an established practice standard, I find that Dr. Tu acted negligently. A finding of negligence in this case does not require familiarity with human physiology, or other scientific training. As I have stated, there is no evidence that this procedure -- that is, the patient flushing the wound at the sink while standing without any supervision immediately following the anesthetic injection -- was medically necessary or even desirable. Had there been such evidence, determination of liability would have required a balancing of the risk of not proceeding in that manner, against the risk of vasovagal syncope; and that would have required expert evidence. But that is not the case here. As stated by Dr. Schwartz, the risk of Mr. Mair fainting may have been small, but it would have cost nothing to eliminate that risk. Balancing the risk of vasovagal syncope, if a course of action is pursued, against no risk at all if that course is avoided, does not require medical expertise. It is a matter of common sense.

75 The evidence establishes that Dr. Tu unnecessarily exposed Mr. Mair to an unquantifiable, but nevertheless real and foreseeable increased risk of harm by leaving him unattended in a standing position, very soon after the administration of a painful stimulus. I find the defendant liable for Mr. Mair's injuries.

The young patient was left with a permanent brain injury as a result of the doctor's negligence. For compensation, the Court awarded $200,000 for his pain and suffering, $10,000 for the cost of future care, and, significantly, $1,250,000 for his loss of earning capacity. The Court emphasized the following principles applicable to a loss of earning capacity claim:

In Rintoul v. Gabriele, supra, I attempted to summarize the principles which are to guide a court in the assessment of lost capacity claims:
[271] The consequences of the findings I have made as to the extent of the plaintiff's disability - together with other considerations as to potential future outcomes, with and without the accident having occurred - are to be evaluated by means of the type of analysis undertaken by Finch J., as he then was, in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353:

The means by which the value of the lost, or impaired, asset is to be assessed varies of course from case to case. Some of the considerations to take into account in making that assessment include whether:

1. The plaintiff has been rendered less capable overall from earning income from all types of employment;

2. The plaintiff is less marketable or attractive as an employee to potential employers;

3. The plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to him, had he not been injured; and

4. The plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market.

[272] The assessment of the pecuniary loss that flows from this analysis must bear in mind the following considerations.

1. First and foremost, the plaintiff is entitled to be restored to the position he or she would have been in but for the defendant's negligence, so far as that can be done with a monetary award. This may involve "a comparison of the likely future of the plaintiff if the accident had not happened with the plaintiff's likely future after the accident has happened" -- Rosvold v. Dunlop, 2001 BCCA 1at para. 8.

2. The task of a court is to assess damages, rather than to calculate them mathematically -- Mulholland (Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248 at para. 43. While the assessment is based on the evidence, it necessarily involves an element of "crystal ball gazing": Andrews.

3. The standard of proof is not the balance of probabilities; the plaintiff need only establish a real and substantial possibility of loss, one which is not mere speculation, and hypothetical events are to be weighed according to their relative likelihood -- Athey v Leonati, [1996] 3 S.C.R. 458, 140 D.L.R. (4th) 235, at para. 27.

4. Allowances must be made for the contingency that the assumptions upon which an award is based may prove to be wrong -- Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at 79 (S.C.), aff'd (1987), 49 B.C.L.R. (2d) 99 (C.A.).

5. Any assessment is to be evaluated in view of its overall fairness and reasonableness -- Rosvold, at para. 11.

Assistance Available for Cerebral Palsy Patients

Tue, 20 Nov 2012 09:12:22 -0400

Personal injury lawyers experienced in medical malpractice cases can help families realize and understand what devices and care are available to allow a cerebral palsy patient to live his or her life to the fullest.

Most often the result of a birth injury, cerebral palsy almost always affects an individual's ability to move around easily. For many with cerebral palsy, water therapy is the only environment where leg movement and exercise is possible. Therapy, rehabilitation, and the learning of daily living skills can be expense. Many times, if cerebral palsy was the result of a birth injury or other accident, patients or their parents can recoup damages from the party responsible for the injury by pursuing compensation through a lawsuit.

It is a fundamental principle of tort law that victims of other people's negligence are entitled to compensation that "makes them whole" (as best as possible). Young babies who, as a result of the negligence of doctors or nurses, suffer from cerebral palsy are entitled to future care and treatment costs that "make them whole".

One example of such a devise available to cerebral palsy patients, compensable by a negligent doctor or nurse, is a recent invention for swimmers. David Blaski's latest invention, the Aquatic Stabilizer Apparatus, will hopefully prove to be a helpful life-changing apparatus for cerebral palsy swimmers. He is a senior clinical occupational therapist at Franciscan Omni Health and Fitness. After meeting a young cerebral palsy patient who loved to be in the water, but whose legs crisscross when in a pool, Blaski made it his goal to develop and patent a solution to the problem and also benefit the development of daily living skills for other cerebral palsy patients.

Many cerebral palsy children have a muscle tone problem that causes scissoring of their legs. Cerebral palsy therapists have often lamented that while orthotics existed that reduce leg control for walking, nothing was available for the pool. The new apparatus was devised out of an idea for to make up for this type of muscle tone malady.

The devise was the winner of the Annual Maddak Award for Best Innovation of the Year (Maddak is the largest US manufacturer of rehabilitative products). It is hoped that the manufacturer will take enough interest in the device to fund its production so that other cerebral palsy children may benefit from its use.

If you or a loved one suffers from the condition and need legal assistance in the filing of a lawsuit, you may want to consider contacting a medical malpractice lawyer experienced at advancing cerebral palsy claims.

Nova Scotia Medical Malpractice Case Successful at Trial

Fri, 16 Nov 2012 09:00:51 -0400

The medical malpractice lawyers at Wagners Law Firm recently helped the Nova Scotia victim of medical negligence achieve justice at trial. The facts which led to the patient's tragic injury are as follows:

On April 2, 1997, Victoria Anderson was admitted to the Victoria General Hospital to be treated for inflammatory bowel disease. Her doctor anticipated that she would require surgery, and prescribed total parenteral nutrition to be administered by a central venous line ("central line") - a catheter inserted into one of several large veins in the core of the body.

On April 3rd and 4th, residents from the Department of Surgery attempted to insert a central line for Ms. Anderson via the left and right subclavian veins. They were unsuccessful.

On April 5th, the Defendant Dr. Sharma was the medical resident responsible for the floor where Ms. Anderson was located. He was asked to establish the central line for Ms. Anderson because Dr. Love's prescribed feeding had not yet been initiated. Dr. Sharma sought the assistance of a senior resident, the Defendant Dr. Gee, and they attempted to insert the central line via the internal jugular vein. They, too, were unsuccessful.

In the course of their attempt, the needle used by Dr. Gee entered an artery which she believed was the carotid artery on two occasions. She withdrew the needle and applied pressure. The attempt by Drs. Gee and Sharma took place late on Saturday afternoon. The following morning Ms. Anderson developed neurological symptoms which became progressively more severe, culminating in her present condition of "locked-in syndrome". Subsequent angiograms showed that this was caused by an occlusion of her right vertebral artery and basilar artery, which supply blood to the brain.

Lawyers for the Plaintiffs alleged that the conduct of the doctors was negligent, and that it caused the stroke. The Plaintiffs further argued that the Defendants did not obtain informed consent before they attempted to insert the TPN. The Defendants denied this, and stated they treated her in a manner which was competent, careful and in accordance with the appropriate standards for physicians in their respective positions. The argued that the stroke which caused her to become "locked in" was the result of her inflammatory bowel disease.

After a month-long trial in early 2012, the trial judge agreed with the Plaintiff's lawyers. She found that, during the procedure, Dr. Gee did not turn the Plaintiff's head in accordance with the standard and recognized protocol for TPN insertion. The judge found that the neck was rotated too far towards her shoulder and that this played a role in the inadvertent arterial punctures.

Next the judge had to determine if the inadvertent arterial punctures played a role in the development of the stroke (or if the stroke was purely coincidental). She found that, "In order for blood to be drawn from an artery into a syringe, the inner lining of the vessel must be pierced, and the needle placed within the lumen. Once the needle is withdrawn platelets begin to adhere to the puncture site, and form a clot. This is the body's natural healing process. In some instances, the clot may become dislodged from the wall of the vessel, and flow through the arterial system." She ultimately concluded this process to be the cause of the stroke.

After hearing the evidence of numerous doctors from around the world, the trial judge concluded that the Plaintiff's stroke was not likely caused by a state of inflammatory bowel-related hypercoagulabilty. She wrote in the decision:

I am unable to conclude that Ms. Anderson was probably in a "potently hypercoagulable" state prior to the stroke. There are several aspects of the evidence which are influential in this regard. Ms. Anderson prior to April 6th, showed no indications of being in a hypercoagulable state, let alone a "potent" one. This is despite the fact that she had encountered in the year preceding the stroke, several serious and prolonged flare-ups of her ulcerative colitis, all without venous or arterial difficulties. During the April 1997 hospitalization, Ms. Anderson had daily blood work undertaken in the days preceding her stroke. There were no indications of clotting difficulties arising in that time frame. I accept the evidence of the plaintiff's experts that the post-stroke clotting incidents are more likely a product of the stroke itself and the resulting immobilization, rather than an indicator of Ms. Anderson's pre-stroke potent hypercoagulability.

Alternatively, and regardless of the Defendants' negligence, the trial judge also found that the Defendants had not obtained informed consent, stating:

Stroke is a rare complication of arterial injury. The Sloan article, referenced by experts for both parties, published in 1991 in the authoritative journal, "Neurology", suggests that notwithstanding its rarity, stroke was viewed as a potential consequence of internal jugular catheterization. Although not common, the serious consequences arising from a stroke make such a risk "material" in my view. It should have been disclosed to Ms. Anderson. In addition, in conjunction with the serious risks which may arise, it is my view, that as part of being properly informed, Ms. Anderson was entitled to be advised of the Defendants' degree of experience with the procedure to be undertaken.

Notwithstanding a defendant physician's failure to disclose a material risk, liability will be avoided, if the Court determines that the patient, if fully informed, would have undertaken the procedure. Ms. Anderson was anxious to have the central line placed, and the TPN started. She was, understandably, eager to get home to her young daughter and attend to her wedding preparations. I cannot conclude however, that a reasonable person in such circumstances, if advised of the remote possibility of stroke, would have consented to residents, with the degree of experience possessed by the Defendants, undertaking the internal jugular cannulation.

The medical malpractice lawyers who helped achieve this excellent result for this deserving patient are pleased to be able to help her achieve justice and some future comfort as she ages.

Medical Malpractice Trial Hold Doctors Negligent for Late Cancer Diagnosis

Thu, 25 Oct 2012 10:43:19 -0400

A very recent medical malpractice decision is important to Nova Scotia patients and medical malpractice lawyers in that it demonstrates an onus on doctors to deal with skin lesions, reasonably suspected as being cancerous, in a prompt and attentive manner. If the doctors fail to meet this standard of care, and the patient suffers a bad outcome, causation can be inferred, even in the absence of evidence.

The patient in Adams v. Taylor, 2012 ONSC 4208, developed a skin lesion in between her first and second toes on her left foot. She did the right thing. Over the course of approximately one year, she saw three doctors to address her concerns that the lesion may be cancerous.

Early on her family doctor referred her to a dermatologist. The dermatologist conducted a physical examination and concluded that the lesion was "probably benign" but that it was "better off than on". To perform the lesion removal, the doctor referred her to a plastic surgeon. An appointment was made for five months later.

When the patient's family doctor was advised of the surgery date, she became concerned and tried without success to find another plastic surgeon who could remove the lesion sooner. After several initial meetings with the plastic surgeon (who, like the dermatologist, showed no concerns that the lesion was anything but benign), the lesion was removed almost one year after the patient first complained to her family doctor. A subsequent biopsy revealed that the lesion was malignant cancer.

The patient underwent a surgical procedure to amputate two toes from her left foot followed by a lengthy and difficult chemotherapy protocol. She also had three lymph nodes removed from her groin, two of which were cancerous. She then had a full groin resection to clear the area of further metastases. She developed a staph infection and was hospitalized for a week. The groin resection resulted in a full leg lymphedema.

The patient hired a personal injury lawyer and commenced an action for damages against two of her doctors (the dermatologist and plastic surgeon) on the grounds that their diagnosis and treatment of her lesion fell below the standard of care expected of them.

The doctors settled the question of damages before trial but were adamant that they had not treated the plaintiff in a negligent manner. The judge hearing the trial thought otherwise. Concerning the dermatologist's negligence, the trial judge concluded as follows:

After he had read (the family doctor's) letter of March 27, 2007 in which she described it as having irregular shape and colour, (the dermatologist) should have been particularly aware of the necessity to rule out melanoma. He should have arranged for excision and biopsy of the lesion on an urgent basis as this was the only sure method of ruling out melanoma.
...(the dermatologist) also failed to demonstrate the necessary standard of care by not adequately communicating his findings to either (the patient) or (the family doctor). Had he fully informed ...and had he insisted (the plastic surgeon) act urgently, the tragedy that has befallen (the patient) may have been averted.

The faulty record keeping has materially contributed to (the patient) adverse outcome. (The dermatologist`s) negligence caused delay in excising the lesion...had the referral letter described the lesion with more detail and explained why (the dermatologist) did not think it was a melanoma, this might have shown (the plastic surgeon) that there was some difference of opinion. (The plastic surgeon) was not given the proper tools needed to assess the lesion.

(The dermatologist) exposed Ms. Adams to a risk of injury and she eventually suffered from that injury.

With regards to the plastic surgeon's negligence, the Court concluded as follows:

These "irregular" characteristics are clearly those of a possible melanoma. (The plastic surgeon) may have attributed the changes evidenced by the lesion breaking open, oozing clear liquid and then healing to (the patient's) running program. But change is also a clear indication of a melanoma. ...there was an obligation on her, as a specialist trained to recognize symptoms of a melanoma, having seen clear signs of a possible melanoma, to recognize it as such and remove it immediately.
The law provides that the honest exercise of judgment satisfies the professional obligation and is not negligent. However, if the error is one that a reasonable doctor practicing in the same discipline would not have made in similar circumstances, then the conduct falls below the standard of care is negligent...
...
I find that (the plastic surgeon's) conduct fell below the standard of care expected of a plastic surgeon in the circumstances of this matter. She failed to act after observing an irregular shape and colour in this lesion.
...
It is clear from the evidence of all the physicians at trial that the objective when dealing with melanoma is to recognize it early and to treat it, that is, excise it early. (The plastic surgeon) was negligent in leaving a growing dangerous lesion on (the patient's) skin, thus allowing it to develop into a melanoma, if it had not already done so.

In addition to claiming that they were not negligent, lawyers for the defendant doctors also argued that the patient could not provide that any of the doctor's conduct (or lack thereof) caused the patient's condition to worsen.

The trial judge did not accept this argument and inferred using common sense and reasonable logic that the doctors' negligence "caused the condition to become more serious". The judge stated: "It is logical that Ms. Adams' condition worsened as a result of not removing the lesion. There is no evidence to the contrary."

A Doctor's Duty of Care-Important for Mothers and Their Unborn Children

Mon, 16 Jul 2012 12:28:55 -0400

All doctors have a duty of care to their patients. In short, this duty is to treat their patients in a manner that reasonably prevents harm. Because the potential for severe injury is so significant, the importance of meeting their duty of care is especially important in obstetrical care. Doctors and nurses owe a duty of care to two patients simultaneously: the mother and the fetus.

Doctors monitoring pregnancies or delivering babies have many duties. For example, they have (a) the duty to conduct proper examination, (b) the duty to monitor, (c) the duty to utilize appropriate diagnostic testing, (d) the duty to respond in a timely manner to symptoms of acute fetal distress, and (e) the duty to communicate with each other.

Doctors in charge of obstetrical care must respond in a timely and often urgent manner. In the field of obstetrics wasted minutes can have tragic consequences. Doctors in the field have a duty not to waste minutes.

Beyond responding in a timely manner to urgent problems, obstetrical doctors must also take reasonable steps to anticipate those problems and plan accordingly.

Doctors and nurses owed a duty to their patienst to attend on a regular and timely basis, and, as required by their patient's condition, respond in a timely or urgent manner to potential harm.

The following case are examples of where Courts found doctors in the field of obstetrics to have breached their duty of care by provide an urgent response to critical problems:

The mother in McGlone (Guardian ad litem of) v. Kelly had an uneventful pregnancy. During labour, the child's heart rate fell periodically but recovered quickly each time. She was being treated by a family doctor with a practice in obstetrics. The doctor did not seek timely attendance of obstetrician and did not perform an urgent delivery. The child was born with severe cerebral palsy.

The Court found the doctor to have been negligent. He had a duty to recognize and respond to the significant accelerations in the fetal heart beat. The doctor had a duty to observe and consider information available from fetal heart monitoring independent of nursing advice. It was held that his failure to realize that the child was in distress fell below the standard of care. The doctor's failure to recognize and respond in the timely manner was found to be the material cause of the injury.

As a result of the breach of the duty of care, the Court awarded the injured baby and her family the large sum of compensation required to help cover the care needs associated with the injury.

Strachan (Guardian ad litem of) v. Reynolds dealt with a similar matter. After an uneventful pregnancy, the mother was treated as normal low risk patient. The fetal heart tracings commenced at 3a.m. The Court accepted evidence that, at 5 a.m., the tracings became non-reassuring. The non-reassuring tracings were combined with the mother's complaint of abdominal pain. Nonetheless, the doctor permitted the labour to continue until vaginal birth at 6 a.m. Doctors have a duty to recognize and respond urgently to signs of fetal distress. It was found to have been negligent for the doctor to not have performed an emergency c-section at 5:30.

A high financial damage award was provided to the baby and his family to compensate for such things like loss of enjoyment of life, cost of care, loss of earning capacity and housing costs.

Cerebral Palsy as a Result of Medical Malpractice

Wed, 06 Jun 2012 10:40:24 -0400

A doctor and hospital's nurses are responsible for providing a mother and her baby with safe, comprehensive medical care during the infant's delivery. However, if the delivery room physician makes a mistake, such as failing to account for a potentially serious health issue or wrongfully using an instrument during birth, he or she may cause permanent damage to the child. Likewise, if a nurse makes a mistake, like failing to identify signs of fetal distress and promptly notifying a doctor, serious injuries can happen. Unfortunately, some of these medical errors can lead to lifelong brain damage in the form of cerebral palsy.

Common Types of Cerebral Palsy

A doctor and nurse must be very careful when delivering a baby, as errors can have permanent consequences for that child's brain development. If a doctor or hospital's negligence damages a baby's brain, it may lead to cerebral palsy which can have a permanent impact on a child's life. One of the following types of cerebral palsy can result:

• Athetoid cerebral palsy - causing speech and swallowing problems and involuntary movements

• Ataxic cerebral palsy -causing difficulties with balancing, depth perception and muscle coordination

• Spastic cerebral palsy, causing tightness in the muscles and prevent free movement

Families who have suffered because of a doctor's negligence often need extra help caring for their injured child. To pay for these necessary expenses, families often require financial compensation.

Wagners Law Firm has helped many such families fight for the financial compensation needed to care for their injured child. The following are indicators that a medical mistake may have caused your child's cerebral palsy:

1. Your child required oxygen to facilitate breathing after birth.

2. A specialist was called to care for your newborn.

3. Following delivery, your child was transferred to a different hospital, or spent time in the NICU (neonatal intensive care unit).

4. Your child had seizures immediately after birth, or within the first 3-4 days of life.

5. Emergency delivery with forceps, vacuum extraction, or cesarean section.

6. Your child required resuscitation (i.e. CPR, bagging) after birth.

7. Your child required special testing after birth, such as an MRI, or brain scan.

Medical Malpractice - Injury During Your Baby's Delivery, When to Consult a Lawyer

Wed, 30 May 2012 09:45:07 -0400

Seeking medical treatment can be intimidating. There can be a lot going on that we might not understand and there is a lot of information about what to expect when recovering that might be confusing. This can make it hard to figure out if something has gone wrong during the medical treatment, or if it is par for the course. When you are having a baby this can be even more intimidating, because you are concerned about your own health as well as the health of your baby.

Doctors and nurses are held to a high standard because they are responsible for human lives. They constantly owe a duty of care to their patients. If they fall below that standard of care, and a medical injury results, it could be the medical practitioner's fault. Obstetrics involves a duty to a mother and her baby. This means that the doctors and nurses must act with additional care. If the standard of care is not met, then the injury may have been caused by the doctor or nurse's inability to meet the required standard of care. When there is negligence during a baby's delivery usually the injuries are catastrophic and the cost of care for the injured is extremely high. Therefore, in the event that you or your baby experience medical complications that you feel could be due to negligence, consulting a personal injury lawyer will help you decide your next step.

The typical medical malpractice cases of baby delivery are in circumstances where the standard of care is not met in one or more of three areas:

First in order to meet the standard of care, the doctors and nurses have to act with urgency. The difference of a few minutes can be the difference between injury to the baby and no injury. Many cases where there is liability for the baby's injury it is because of unreasonably slow response to critical problems. Common issues that arise include responding to shoulder dystocia, delays in calling assistance or notifying a superior when presented with a critical or suspect issue and the failure to recognize a potential fetal compromise and expedite the baby appropriately.

Next the care in the Obstetrics unit requires a level of care that involves anticipation. Obstetricians must respond urgently when critical issues arise, but they also must anticipate the possibility of critical issues arising and be prepared to act accordingly. Some common injuries should be anticipated so that they will be dealt with urgently.

For example shoulder dystocia should be anticipated as a possible problem and there should be a planned response in place in case it occurs. Another example is if a doctor attempts mid-forceps delivery, there should always be a plan in place to go to the operating room immediately and perform a Caesarean section if the delivery fails.

Finally for the medical team to meet the standards of care they must maintain excellent communication skills. Medical treatment has been improved from team approaches but communication amongst the medical team is crucial to positive outcomes. Failure to adequately communicate can result in disastrous consequences to the medical care, especially when it comes to delivering a baby. Treatment was found to fall below the standard of required care when the doctor did not give the nursing staff and residents sufficient direction of how to monitor the pregnancy of a patient with gestational diabetes. Another way that lack of communication can have negative impacts is when the obstetricians do not communicate enough with each other or give frequent direction or information to nursing staff to adequately manage the delivery.

If you or your baby suffered an injury during the course of your medical treatment you should determine if the standard of care employed by the doctors and nurses was inappropriate or negligent. If it is your determination that the medical team did not anticipate the critical issue, respond urgently to the critical issue, or communicate adequately during the course of treatment then there it may be possible that they were negligent. Consulting a personal injury lawyer will ensure you can pursue compensation for these acts of negligence. The lawyer can review your medical records to determine if the medical team was negligent and advise you on how to proceed so you are compensated for the injuries that resulted.

Doctor Negligence During Delivery of Babies Can Cause Brain Injuries

Fri, 20 Apr 2012 10:21:33 -0400

Babies are born every day in Nova Scotia, New Brunswick and PEI. While the birth of a new baby is usually one of the joyful moments in parents' life, tragically, there are times when that happiness can become catastrophic. All too often, as a result of the negligence a doctor or nurse, things go wrong in the hours or days before a birth causing lifelong permanent injuries to the child.

Because so many things can go wrong, mothers and babies need extra attention in the final stages of pregnancy and in the hours that lead up to delivery. Problems too often occur in a hospital delivery room, when the baby's injury is the avoidable result of negligent conduct by a doctor or nurse, or both.

There are many ways that birth injuries can occur. Injuries caused by a lack of oxygen are the most common. A lack of oxygen may cause an injury in a number of different ways. It may be the result of a lack of blood flow to the tissues (ischemia) or a lack of oxygen within the blood (hypoxia) or a combination of the two.

A baby who does not get enough oxygen during the labour and delivery process will usually demonstrate fetal distress. In the face of fetal distress, doctors and nurses are required to act with haste or else tragedy will occur. Brain injuries associated with oxygen deprivation are usually preventable. Through monitoring (usually by electronic fetal monitoring), fetal distress can often be picked up at an early stage and steps can be taken to have the baby delivered urgently in order to avoid any injury.

If oxygen deprivation goes undetected, or if the doctors and nurses do not act with appropriate urgency, a baby will likely sustain a brain injury. After birth, the baby may show low apgar scores. The baby may require resuscitation before he or she is able to breathe on his or her own. The baby may have poor tone, poor colour, a poor cry, poor suck, have a need for tube feeding, and/or have persistent abnormal tone. Seizures are often associated with fetal brain injuries. Such injured babies may require medications like Phenobarbital for seizures or antibiotics like Ampicillin and Gentamicin.

Babies who have suffered a brain injury may undergo extensive testing after birth. Abnormal blood gasses, x-rays, CT scans and MRIs may each be indicators of a brain injury.

Some babies with brain injury may have blindness or other vision deficits, epilepsy, quadriplegia or developmental delays. Some have more subtle injuries, which may not be as outwardly obvious but may still be very serious or disabling.

The costs of providing the life-long care and rehabilitation that a child with a brain injury needs can be huge. In addition, that child may not be able to grow up to be independent, or to earn a living in the future. A legal action may provide the funding needed to ensure that an injured child is properly taken care of in the future.

All too often babies in Nova Scotia, New Brunswick and PEI are born with preventable brain injuries. The experienced medical malpractice lawyers at Wagners have acted on behalf of many of their families and are pleased to have been able to achieve excellent results for many of them. Such funding will help the injured babies receive treatment and care suitable for their needs and, as best as possible, help them take steps to live with a degree of functional independence as they grow into adults.

Proving Medical Malpractice and Causation by Inferences

Sat, 07 Apr 2012 10:28:54 -0400

Unfortunately it happens all too often that patients in Nova Scotia, New Brunswick and PEI are injured by amedical error. Medical malpractice cases can often be difficult to prove because the medical/hospital records are not readily available due to the passage of time. An experienced medical malpractice lawyer can still achieve justice on behalf of an injured patient in spite of the destruction of records. An example of this can be seen in a recent case out of the Ontario Court of Appeal.

The facts in Gutbir v. University Health Network are tragic. In January of 1984, a pregnant mother was admitted to hospital in her 42nd week of pregnancy. At 7am the next morning she went into labour. The attending nurse came into the room every 30-40 minutes to listen to the foetal heart rate. The foetal heart rate gives nurses and doctors an assessment of the condition of the infant. The nurse permitted everything to proceed normally. There was no sense of urgency. The mother assumed that her baby was healthy.

Her daughter was born at 3:45 pm. She was blue, silent and in critical condition upon delivery. A sense of panic set into the room for the first time. A specialist was promptly called. The baby was intubated and given oxygen. She survived but her brain was permanently damaged.

After the infant stabilized and was released, the family moved to Israel. It would be 15 year later, when the infant had aged and the extent of her injuries were fully realized, that the family commenced a lawsuit. By 2001, the Hospital where the child was born had destroyed all records relating to the birth. Fortunately, some records from other facilities were still available.

The lawsuit alleged that the doctor and main nurse were negligent in failing to detect signs of foetal distress through the heart monitoring. It was further alleged that by failing to detect the in-utero suffocation, the doctor and nurse permitted labour to continue instead of prompting urgent delivery; had they met the standard of care, and noticed the foetal distress, the brain injury could have been avoided. The doctor settled before trial. The hospital (who employed the nurse) did not.

Following a jury trial that lasted several weeks, the jury found in favour of the injured child. The records, having been destroyed, did not permit evidence on exactly what information was known by the nurse. However, the jury inferred from the evidence that the baby must have been in distress and that this would have been detectable by fetal heart monitoring. It agreed that the nurse must have been negligent for failing to see what was there to be seen: an infant in distress. The jury found that by failing to make this necessary observation, the baby stayed in the womb when she should have been promptly removed. The jury found that the failures of the nurse caused the brain injury.

The hospital appealed on the grounds that there was no evidence available to support these findings. Essentially, the hospital argued that because the records had been destroyed, the injured patient was unable to prove what information was available to the nurse and what the nurse may have done with that information.

The Court of Appeal carefully reviewed all of the evidence available to the jury at trial. Despite the lack of hospital records, the Court found that there was sufficient evidence to support the inferences of negligence and causation made by the jury. On the issue of causation, the Court stated:

[43] While there was no direct evidence of causation, there is evidence from which the jury could properly infer a causal connection. Dr. Carson testified that, if EFM had been used or IA had been done properly, the distress of the foetus would have been detected, detection would have prompted intervention, and intervention would likely have been beneficial in this case. The jury's answer tracks Dr. Carson's evidence which indicates that they accepted it. The evidence of Dr. Hill, a paediatric neurologist, was that it takes one or two hours of hypoxic ischemic insult before injury results. The extent of the injury increases as time goes on. The evidence of Dr. Carson and Dr. Hill establishes that, had the standard of care with respect to foetal monitoring not been breached, the distress of the foetus would have been detected and, once detected, there was sufficient time to deliver Zmora before injury to her brain resulted.

[44] Further, given the evidence that the attending nurse fell below the standard of care with respect to foetal heart rate monitoring, and the jury's rejection of the alternate theory that hypoglycaemia was a major contributor to Zmora's brain damage (which is not contested on appeal), the nurse's breach is the only reasonable explanation for the cause of Zmora's brain injury.

[45] The appellant further submits that the jury only found that any negligence on its part was found by the jury to be a "lost chance" to prevent permanent brain injury as opposed to a finding on the balance of probabilities that the appellant caused or materially contributed to Zmora's injuries. The appellant's submission is based on the following sentence in the jury's answer to question 2-b (i.e., how the attending nurse's breach of the standard care caused or materially contributed to the injuries of Zmora): "[Detection of foetal heartbeat abnormalities] would have allowed an earlier intervention, (birth of the baby), which could have prevented permanent brain injury." While this sentence taken in isolation can be read in the manner submitted by the appellant, when the jury's answers to the questions are read as a whole and in conjunction with Dr. Carson's evidence, we are satisfied the jury's finding was based on a balance of probabilities.

[46] Indeed, the jury's answer to the question on causation begins with, "On the balance of probabilities, Zmora's brain injury was caused by prolonged partial hypoxic insult. This would have taken place one to three hours before birth." The wording of the sentence relied on by the appellant reflects the jury's understanding that the longer the negligent situation prevailed, the more likely it was that serious permanent brain injury would result.

[47] Finally, we reject the appellant's submission that in order for causation to be established evidence as to exactly when irregular foetal heart beat began was required. Having regard to the evidence and the jury's answers to the two questions, if, as required by the standard of care, EFM had been used, or IA done after a contraction for the required length of time and with the required frequency, it is likely that the irregularities in the foetal heartbeat would have been noticed at a stage when permanent brain injury could have been prevented. In other words, the injuries were preventable on a balance of probabilities.

Sometimes direct evidence is not available. This case in an excellent example of how inferences can support findings of negligence and causation even in cases where direct evidence is not available.

Nova Scotia Medical Malpractice Case Goes to Trial

Tue, 31 Jan 2012 11:17:17 -0400

The lawyers at Wagners represented a client in a medical malpractice trial in Sydney, Nova Scotia this month. The claim alleged negligence on the part of medical residents who treated the plaintiff. The residents were newly out of medical school. The medical malpractice lawyers at Wagners alleged that they did not appreciate their own inexperience and limitations before treating the plaintiff. As a result, it is alleged that the plaintiff sustained a tragic injury. She continues to live in Nova Scotia but is severely disabled.

The leading decision on the standard of care expected of medical residents is Fraser v. Vancouver General Hospital, [1952] 2 S.C.R. 36. Following a car accident, the patient in that case had neck x-rays taken and interpreted by two residents. Without consultation with more experienced doctors, they decided that there was nothing of concern. The patient was accordingly discharged. He continued to suffer from neck pain and a couple days later died with what was later diagnosed as a dislocated neck fracture. The Supreme Court of Canada found that the residents had failed to meet the requisite standard of care by not calling the radiologist who was available. The Court stated:

[A resident] must use the undertaken degree of skill, and that cannot be less than the ordinary skill of a junior doctor in appreciation of the indications and symptoms of injury before him, as well as an appreciation of his own limitations and of the necessity for caution in anything he does.

The patient in Adair Estate v. Hamilton Health Sciences Corp., complained of vomiting and abdominal pains and was sent to the McMaster University Medical Centre for assessments. On two occasions in the same day she was attended to by a third year resident, defendant Dr. McDonagh. On the first assessment, Dr. McDonagh diagnosed her with constipation and sent her home. She returned later than evening. On the second occasion, Dr. McDonagh diagnosed postoperative ileus (not life threatening). However, she was admitted to hospital for observation given the possibility that she had a small bowel obstruction.

The patient remained in hospital overnight under the care of a second resident, the defendant Dr. Hopkins. Unfortunately, the plan to deal with the contingency of a small bowel movement was not followed. The next morning she was diagnosed with the condition and had emergency surgery. She died from complications that followed her post-surgery recovery. The Court found as fact that the malnutrition caused by a delayed and sub-standard bowel obstruction diagnosis was a major factor that materially contributed to the chain of causation that ended with the patient's death. The two residents, along with two specialists, were found negligent and liable.

In assessing the standard of care applicable to residents, the Court stated at para. 137:

Like any student of any profession or trade, a resident must not fail to understand his or her own inexperience, lack of knowledge and lack of skill. For a student to ignore the certainty of these shortcomings and instead act in complex matters without the supervision of a principal is negligence of the highest order.

Regarding the liability of the third-year resident Dr. McDonagh, the Court stated:

He was a junior doctor who was upgrading his qualifications. As such, he should be held to the general standard of care of a reasonable and prudent doctor. This includes guarding against his lack of knowledge, skill and experience in the context of the residency. He was under a duty to seek the advice of his principals if he encountered a problem that was above his present stage of learning. ... It was below the standard of care expected of a prudent doctor who is learning as a resident to rely on his own incomplete and incorrect knowledge, to ignore these red flags and to disregard the opinions and observations of a much more senior and experienced physician.

The Court in Bearden v. Lee, assessed the liability of a first-year resident. The plaintiff in that case went to hospital emergency room with abdominal pains. He was assessed by a first-year resident, Dr. Abramson, who diagnosed gastro-enteritis and discharged him. The plaintiff's appendix ruptured three days later and he underwent an emergency appendectomy. Shortly after surgery, he developed the first of many hernias in incision requiring several additional surgeries. The Court found the resident to be liable, in part because:

...While confidence is a positive attribute of an experienced doctor, [and while I have every reason to believe Abramson is now a fine and experienced specialist,] I am of the view that on July 1-2, 1991 she inappropriately allowed herself to go unsupervised and confidently presented herself to Bearden as being more experienced and knowledgeable than she really was...

It is clear from these authorities that medical residents, while being held to the same standard as full physicians, must take caution of their own inexperience.