Medical Malpractice & Personal Injury Blog

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Medical Malpractice & Personal Injury
By Patterson MedMal on 8/14/2012 8:07 AM
Medical procedures are often performed while a patient is sedated. If something goes wrong during the procedure, the patient has no way of knowing just what occurred; all he or she knows is that they have suffered an injury. If the doctor insists that nothing unusual happened, how can the Court possibly decide if there was negligence?

The Ontario Superior Court of Justice was faced with just such circumstances in their recent decision, Austin v Bubela, 2011 ONSC 1958. In that case, the patient, a 62 year old woman, had been seeing the defendant doctor for the management of chronic pain and spasm in her right foot. Dr. Bubela had, on five previous occasions, injected a combination of drugs to act as a “nerve block” in Ms. Austin’s foot to manage the pain. Ms. Austin was sedated for each procedure.

On September 16, 2005, Dr. Bubela performed a sixth nerve block on Ms. Austin. She was again sedated. Immediately upon awakening, however, she began experiencing severe pain in her leg and foot. She was released from the clinic after a brief recovery period, still in tears due to the amount of pain. She was taken from the clinic to her sister’s home, and while there, noticed blisters beginning to form on her leg. She telephoned the clinic, but was unable to speak to Dr. Bubela. Instead, she spoke to his secretary.

By Patterson MedMal on 8/13/2012 9:53 AM
Limitation periods are of central importance since they indicate the amount of time a Plaintiff has to commence an action. Once a specified amount of time has passed, the Plaintiff is barred from pursuing a given claim in court. In the recent decision of Ormerod v. Bennett, 2012 ONSC 3987, the Ontario Superior Court of Justice ruled that in some special circumstances the expiry of a limitation period will not prevent an individual from being added as a defendant in a medical malpractice action.

The case of Ormerod v. Bennett was a medical malpractice action arising from the death of John Ormerod on July 9, 2001. The plaintiffs alleged that Mr. Ormerod died because of a delay in diagnosing and referring him to surgery for a perforated bowel. One of the defendants, Dr. John Bennett, sought summary judgment dismissing the plaintiffs’ action against him submitting that the plaintiffs’ claim was bound to fail because the action was brought against him more than two years after Mr. Ormerod’s death, which is the...
By Patterson MedMal on 8/7/2012 9:24 AM
A recent Ontario Superior Court of Justice case has reiterated the importance of meeting the standard of care expected by specialists in their respective fields.

All doctors must meet the expected standard of care of a reasonably prudent doctor, making them liable for malpractice if they do not meet this standard. Specialists, however, must meet a higher standard of care than general practitioners, due to the expectation that they will possess superior skills and knowledge in their field. This means that the standard of care a specialist must meet is that of the average practitioner in his or her own field.

In Adams v. Taylor, 2012 ONSC 4208 , the Plaintiff reported an uncomfortable mole between the first and second toes on her left foot. She was seen by three doctors over the course of about one year; her...
By Patterson MedMal on 7/26/2012 9:53 AM
We trust our doctors to tell us the facts about our health, and to provide all of the information necessary to keep us as safe and comfortable as possible. If a doctor learns of information that will directly impact our health, we would expect to be informed. However, we see in the case of Frazer v. Haukioja, 2010 ONCA 249, that that is not always a guarantee.

In Frazer v. Haukioja, the young male plaintiff, Mr. Frazer, was in a motorcycle accident. He attended the emergency room and was tended to by the defendant doctor, Dr. Haukioja. Mr. Frazer underwent X-rays and was treated by Dr. Haukioja for a left ankle fracture and a soft tissue injury to his right ankle. A cast was put on the left ankle only. Mr. Frazer was admitted for observation and continued to complain to Dr. Haukioja about pain in his right ankle. Dr. Haukioja  advised that this  was a normal part of recovery from a soft...
By Patterson MedMal on 7/12/2012 2:56 PM
The amount of information available on the Internet is making it possible for patients to become more and more knowledgeable about their own conditions and the medical procedures and treatments their doctors recommend. But does the availability of this information negate or lessen a doctor’s responsibility to fully inform the patient of the risks that might accompany their treatment?

In Prevost v Das (2011 SKCA 50), the Saskatchewan Court of Appeal was faced with just that issue. The plaintiff was suffering from bilateral carpal tunnel syndrome that made it impossible for him to continue his work as a truck driver when he met the defendant doctor in 2006. After being put on a waiting list for surgery with another specialist for what he considered to be too long of a wait, his family doctor referred him to a colleague, Dr. Das. Dr. Das was performing the same surgery in an unapproved surgical suite in Regina, Saskatchewan, and agreed to perform the surgery on his right wrist immediately.

By Patterson MedMal on 7/4/2012 10:27 AM
When a patient visits their doctor, they trust they will be given a complete range of treatment options for their illness or injury. It is expected that the patient and the doctor will discuss all of the possible treatment options, and come to a decision on what is best for that particular patient. Unfortunately this is not always the case. Sometimes only the option that the doctor believes to be the best is explained, leaving the patient to believe there are no other alternatives. This is dangerous, because only when a patient is fully informed of all of their options can they give informed consent.

In the recent decision of Paquette v Giuffre, 2011 ABQB 425, the importance of being fully informed canvassed.  In this case, Ms. Paquette, the 29 year-old Plaintiff, consulted her family doctor about bumps on her wrists that caused her discomfort when she put pressure on them. Her family doctor diagnosed the bumps as ganglions and referred her to the defendant doctor, Dr. Giuffre, a plastic surgeon.  

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.

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...