Medical Malpractice & Personal Injury Blog

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Medical Malpractice & Personal Injury
By Patterson MedMal on 5/30/2012 1:34 PM
In considering a potential medical malpractice claim, it may be tempting or customary to only think about the actions or inactions of doctors. In fact, negligence principles apply to a broader array of medical professionals including nurses who possess specialized training, knowledge and skill. To be successful in any medical malpractice action, the plaintiff must demonstrate to the court that the conduct of any given medical professional failed to meet the standard of care expected of that type of professional. Therefore, if dealing with a claim involving a doctor, his or her actions must meet the standard of care expected of a physician whereas if dealing with a claim involving a nurse, his or her actions must meet the standard of care expected of a nurse, and so forth.  

The wide applicability of professional negligence principles was recently considered by the Ontario Superior Court of Justice in Durnin v. Victoria Hospital, 2012 ONSC 320. In that case, the plaintiffs brought an action alleging negligence...
By Patterson MedMal on 5/23/2012 11:53 AM
Before undergoing a medical procedure, a patient trusts their doctor to explain any likely or serious risks associated with the procedure. These are called “material risks.” If a doctor fails to mention a material risk to their patient and something goes amiss during the procedure, the patient might bring forward a case of medical malpractice. The patient is understandably upset about the injury they sustained, and it might sound like a cut-and-dry case. However, you might be surprised to learn that it’s not always that simple.

The recent case of Lemay v. Peters, 2012 NBQB 68, follows the previous ruling from Reibl v. Hughes, [1980] SCR 880, that a doctor will not be liable for omitting to disclose information about a material risk, if it is found that a reasonable person -- in similar circumstances as the patient -- would have gone through with the procedure anyway.

This is because the nondisclosure, which is the negligent action of the doctor, cannot then be said to be the cause of the damage....
By Patterson MedMal on 5/14/2012 9:42 AM
Most (if not all) medical procedures come with risks of a bad outcome - infection, bleeding, further injury, or even death. But, one recent Ontario case Campbell v. Fairley, 2012 ONSC 769 demonstrates a bad outcome from a medical procedure doesn’t always mean that a Court will find the doctor negligent.

This case involves a hysterectomy gone wrong. The plaintiff had undergone a hysterectomy as treatment for dysfunctional uterine bleeding which can be a painful condition. Her surgeon had recommended that the procedure be done laparoscopically as it would mean a shorter, less painful recovery time. The surgeon was relatively inexperienced with the laparoscopic procedure, so performed the surgery under the close supervision of a more experienced surgeon. During the surgery, one of the plaintiff’s ureters was severed and had to be repaired in a second surgery. The plaintiff later brought an action in negligence against both of the doctors for failing to meet the appropriate standard of care. The Plaintiff...
By Patterson MedMal on 5/7/2012 8:59 AM
Recently, a New Brunswick doctor was successfully sued for negligently performing an ureteroscopy and for failing to obtain the patient’s informed consent before carrying out the procedure.

This story dates back to April of 1998 when Rena Landry underwent an ureteroscopy. A ureteroscopy is a procedure in which a fiberoptic endoscope called an ureteroscope is used to examine the ureter, a tube connecting the kidney and the bladder. The investigative procedure was meant to determine what was causing Ms. Landry excessive pain in the left side of her abdomen.

During the procedure, the doctor had difficulty inserting the ureteroscope and used what he described as “considerable force” in an unsuccessful attempt to move the ureteroscope along Mrs. Landry’s left ureter. The doctor eventually chose to abandon the procedure, but found that the ureteroscope had become firmly stuck in place. The doctor managed to free and remove the ureteroscope, but tore the entire length of Mrs. Landry’s left ureter in the...
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.”

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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...