Medical Malpractice & Personal Injury Blog

Author: Created: 3/12/2012 9:32 AM RssIcon
Medical Malpractice & Personal Injury
By Patterson MedMal on 6/28/2012 9:17 AM
On May 24, 2002, a freezer containing sperm samples in the Andrology Lab (the “Lab”) located at the University of British Columbia (“UBC”) Hospital malfunctioned resulting in the damage of the samples. Dr. Howard Lam, the Director of the Lab, initiated a class action against UBC on October 2, 2003 and was the representative for the individuals who kept sperm samples at the Lab.

As noted by the Supreme Court of British Columbia, Lam v. University of British Columbia, 2012 BCSC 670, UBC made the admission in its Statement of Defence that in 2000, the UBC Hospital had entrusted it with the responsibility for the Lab in question. This statement by UBC was quite significant since the question of liability in this case is central. It was understood that prior to 2000, the Vancouver Hospital and Health Science Centre (UBC Hospital) had responsibility over the Lab, yet it was undetermined who was responsible following the year 2000. This admission was also significant with regards to the Sperm Banking Facility Agreement in place which addressed liability for the damage of sperm samples. In light of the impactful nature of the admission, UBC wanted to amend its pleading so that the admission be removed.

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By Patterson MedMal on 6/15/2012 2:57 PM
Doctors gather sensitive information about their patients during the course of that relationship, and, save for a few exceptions, are expected to keep that information confidential; the failure to do so can have significant legal implications. But can a doctor be held responsible if he fails to disclose information to a third party whose life could be affected by that information?

In 2010, Liss c. Watters (2010 QCCS 3309) came before the Quebec Superior Court. The facts of the case spanned nearly forty years and three generations of family tragedy. In 2010, Marcy White and Andrew Trossman gave birth to a son, Jacob, who was diagnosed with a severe case of Pelizaeus-Merzbacher Disease (“PMD”), a hereditary disease affecting the brain and spinal cord that results in severe developmental delay, seizures, and severe breathing and nutritional problems. PMD is a sex-linked disorder, meaning that any male child born into a family afflicted with PMD has a 50% risk of having the disease. Two of Marcy’s uncles...
By Patterson MedMal on 6/14/2012 11:55 AM
The issue of withdrawal of life support will be heard by the Supreme Court of Canada. The case Rasouli (Litigation Guardian of) v Sunnybrook Health Services Centre, 2011 ONCA 482, concerns a wife’s desire to prevent health providers from removing her husband, Hassan Rasouli, from life support. Mr. Rasouli was placed on life support after suffering post-operative complications following surgery to remove benign brain tumours, leaving him with severe and diffuse brain damage. He is now being kept alive by a mechanical ventilator and a tube inserted into his stomach providing him with nutrition and hydration.

Mr. Rasouli’s physicians are of the opinion that he is in a permanent vegetative state and will not recover. In light of the circumstances, they believe that it is in Mr. Rasouli’s best interest to remove him from life support, and to provide him with palliative care until he dies. Mr. Rasouli’s wife is his litigation guardian and substitute decision-maker and opposes this course of action. The physicians...
By Patterson MedMal on 6/11/2012 11:57 AM
The importance of full disclosure from a patient was recently addressed in Cooper v. Valiulis, 2012 CarswellOnt 1491. The Plaintiff, Ms. Kimberley Cooper, was unsuccessful in proving a breach of the standard of care owed to her by the surgeon who performed her Roux-en-Y Gastric Bypass Surgery (RYGB). This was partially due to her failing to disclose relevant information regarding her medical history.

Ms. Cooper had undergone a previous weight-loss surgery on February 3, 1988. This was a vertical banded gastroplasty (VBG) procedure which was commonly referred to as a stapling of the stomach. This procedure was a restrictive surgery which, if successful, would have the effect of making both the stomach itself and the exit from the stomach smaller, allowing the patient to feel full faster and longer.  

Ms. Cooper reported that after her initial VBG procedure, her weight went down considerably, going from 286 pounds before the surgery to about 130 pounds six months after the procedure. However, after...
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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