Medical Malpractice & Personal Injury Blog

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Medical Malpractice & Personal Injury
By Patterson MedMal on 4/16/2012 8:37 AM
A recent decision by the Manitoba Court in Grant v Winnipeg Regional Health Authority, [2012] MJ No. 92 says that a person’s representatives cannot sue on behalf of their estate after their death if the claim is for breach of privacy or for a violation of their rights under Canada’s Charter of Rights and Freedoms.

On March 21, 2008 Brian Sinclair died in an emergency department waiting room after having waited without attention from medical staff for 34 hours. Mr. Sinclair was described as an “indigent, physically and cognitively disabled, Aboriginal, vulnerable man” who had gone to the emergency room because of abdominal pain, a catheter problem, and a lack of urinary output.

The Winnipeg Regional Health Authority had already paid $110,000 to Mr. Sinclair’s sister, Esther Joyce Grant, for loss of care and companionship, but she started several other claims on behalf of his estate. In one of the claims,...
By Patterson MedMal on 4/5/2012 7:58 AM
In the recent case of Steinebach v. O’Brien, 2011 BCCA 302 the Court of Appeal rejected the Defendant's appeal that the trial judge erred in finding that the prenatal nurse was negligent or that the doctor’s failure to identify the pregnancy as high risk was the cause of the damages suffered by the child.

In its decision, the Court of Appeal found that the nurse's failure to call the doctor after signs of fetal distress, coupled with her knowledge that the mother had other symptoms that would suggest there were problems, rose to the level of negligence. The doctor’s failure to properly assess the pregnancy as a high risk was also found to be negligent and to have been part of the cause of the damages suffered when the baby was delivered.

One of the interesting things in this case was the fact the Court awarded $321,000 in general damages, which is near the upper limit of these types of damages.  One of the arguments made by the Appellant was that the trial judge erred by not considering the fact that the child would essentially never know what she was missing in that she never experienced any other existence.  The trial judge was eloquent when he considered the child’s future and whether her ability to compare herself to others or sense pain should reduce the general damages she was entitled to, stating “I’m not persuaded that it is appropriate to attempt to assess a level to which Mirella’s cognitive development will permit her to sense pain, or to compare herself and her situation to that of her peers.”

By Patterson MedMal on 4/2/2012 8:01 AM
Time limits are an important consideration when starting any sort of lawsuit. There are statutory deadlines as to when certain types of claims must be filed.  Being aware of these time limits is especially important when bringing a claim against a doctor, dentist, hospital, or any other health professional for malpractice because the allotted time is much shorter for these types of claims.

There are two applicable deadlines for medical malpractice claims in Nova Scotia.
By Patterson MedMal on 3/26/2012 8:51 AM
Everyone makes mistakes and health professionals are no different. In a time of a frustrated health system and staffing shortages finding an inaccuracy in a patient’s chart would not be unheard of. When an individual has suffered an injury as a result of medical malpractice, it can sometimes be tempting to wonder whether such inaccuracies are deliberate attempts by the health professional to shield themselves from liability when, in fact, they were just honest mistakes. In rare situations, the Court has found that inaccuracies were deliberate and fraudulent. In such cases the question then becomes whether the deliberate and fraudulent inaccuracy is serious enough to prompt a court to make to award Special Costs after a trial.
By Patterson MedMal on 3/20/2012 12:41 PM
Until recently, British Columbia, Manitoba, Saskatchewan, and Newfoundland were the only provinces that had laws that made it possible to bring a civil lawsuit for an invasion of privacy. In January of 2012, the Ontario Court of Appeal officially recognized the tort (which they have termed intrusion upon seclusion), making Ontario the fifth province in which one can sue if their privacy has been breached. It is likely only a matter of time before other provinces follow suit. You can find more information about the Ontario decision in our blog article entitled “New civil cause of action for invasion of privacy”.

In Ontario the legal test for determining whether an invasion of privacy warrants compensation is slightly different in that, in addition to being intentional and unlawful, the invasion must be one that a reasonable person would find highly offensive...
By Patterson MedMal on 3/20/2012 12:38 PM
An Alberta Court recently determined that a rural ER physician was negligent in failing to prescribe antibiotics for a patient suffering from meningitis, causing the patient to lose both of his legs, his right arm, and his left hand.

Wayne Forsberg, a dairy farmer went to the Leduc Community Hospital Emergency Department on October 14, 2000. There had been an outbreak of meningitis around the same time in Edmonton, Alberta, and both Mr. Forsberg and his wife thought he was suffering from the disease. Meningitis is a medical emergency requiring immediate administration of antibiotics. Almost immediately, Mr. Forsberg saw a doctor who also suspected that he had meningitis. The doctor did not order any sort of diagnostic test for approximately one to one and a half hours, and did not prescribe Mr. Forsberg any antibiotics. A blood test later confirmed that Mr. Forsberg had a blood infection caused by meningitis.

Mr. Forsberg did not receive antibiotics until he was transferred to an intensive care...
By Patterson MedMal on 3/20/2012 12:37 PM
Saying “I’m sorry” can no longer come back to haunt health care professionals in Nova Scotia. In 2008 the Legislative Assembly passed the Apology Act, SNS 2008, a law which states that apologies cannot be used as an admission of fault in a lawsuit.

The Apology Act protects a wide range of manners in which a person may wish to convey an apology, even if the words “I’m sorry” are not explicitly stated. According to the Act, an apology is an “expression of sympathy or regret, a statement that one is sorry or any other words or actions indicating contrition or commiseration, whether or not the words or actions admit or imply an admission of fault in connection with the matter to which the words or actions relate”. Furthermore, the Act applies to everyone, not just health professionals.

What effect will the Apology Act have on health care providers in Nova Scotia? The Act now allows health care providers to apologize to patients without having to worry about it being seen as an admission of any...