Medical Malpractice & Personal Injury Blog

Author: Created: 3/12/2012 9:32 AM RssIcon
Medical Malpractice & Personal Injury
By Patterson MedMal on 11/23/2012 2:56 PM
Plaintiffs pursuing medical malpractice claims must file their claim with the court before the end of what is called the limitation period. 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. The Act does allow judges to waive the limitation period if the merits of the case outweigh prejudice to the other party, but judges are only permitted to use their discretion if the action is commenced within four years of the expiry of the limitation period.

Some jurisdictions, such as Ontario, apply the rule of discoverability to medical malpractice cases. Discoverability means that the limitation period does not begin until a potential claim is discovered (or ought to have been discovered) by the plaintiff.
By Patterson MedMal on 11/23/2012 2:51 PM
In a recent medical malpractice claim, Leon v Tu, 2012 BCSC 1600, the Plaintiff was awarded over one million dollars in damages.

The Plaintiff was a 17 year old labourer and part-time university student. While working, he injured his hand. Upon cleaning his wound, it was apparent he would require sutures and he attended the Chilliwack General Hospital’s emergency department for treatment. He was seen by the Defendant, Dr. Kimphry Michael Tu.

At the hospital, the Defendant injected the Plaintiff with an anesthetic to freeze his fingers prior to suturing. He instructed the Plaintiff to clean his wound and left him unattended. The Plaintiff followed the Defendant’s instructions but fainted, striking his head on the floor. The Plaintiff subsequently suffered a mild traumatic brain injury, noting a change in personality and problems with his memory.
By Patterson MedMal on 11/19/2012 3:19 PM
Medical reports are often used as evidence in legal proceedings to speak to aspects of a case that are at issue. Medical reports can be considered determinative evidence for important claims made by individuals—whether in personal injury, medical malpractice, or workplace accidents. Findings in reports can be damaging to a person’s entitlement to benefits, employment, and reputation.

Sometimes statutory protection in the form of privilege is offered to a reporting physician should a claim of libel (that his/her written communication lowers the reputation of a person) is made against him/her. The recent case Milne v Darlington, 2012 ABQB 518 (“Milne”) considered the nature of privilege that attaches to medical reports. Specifically, the case considered reports submitted to the province’s Workers’ Compensation Board.
By Patterson MedMal on 10/26/2012 10:16 AM
In April of 1997, Victoria Anderson, of Louisbourg, Nova Scotia, was a 23 year mother to 2 a year old daughter and in the midst of planning her upcoming wedding. Her life took a sudden and tragic change after being admitted to the Queen Elizabeth II Health Science Centre for a flare up related to her chronic bowel disease. She was admitted under the care of a gastroenterologist, who ordered that an IV be administered by a central venous line to allow time for her bowel condition to subside.  Ms. Anderson had undergone this procedure in the past without the need for surgery.

In the days following her admission, there were a number of failed attempts to insert the IV by a central venous line. On April 5, 1997 a nurse noticed that the order had not been implemented and contacted the resident on-call, Dr. Sudheer Sharma to review. Dr. Sharma, a first year resident, reviewed Ms. Anderson’s condition and called upon a more senior resident,  Dr. Shirl Gee, for assistance. Together they decided to attempt the procedure...
By Patterson MedMal on 10/15/2012 8:30 AM
Typically, medical malpractice cases involving alleged negligence of health care providers require expert evidence to establish what standard of care was expected of the health care provider and whether that standard was met. As the evidence relating to whether the standard pf care was breached by a doctor during various types of medical procedures is usually scientific, technical and beyond the understanding of the average judge or juror, experts are most often necessary to provide their opinion to the court as to what the standard of care is in a given medical context. The trier of fact will use the expert evidence to help them discern what the standard of care was and whether it was breached.

However, not every medical malpractice case requires expert evidence. In some instances, the situation of breach may be so obvious that the common sense of a trier of fact is sufficient to determine what the standard of care was and that it was breached: for example, perhaps if a surgeon leaves sponges or gauze in a patient after surgery, it is possible for the average trier of fact to determine on a common-sense basis whether this was a breach of the standard of care of a surgeon (see ter Neuzen v Korn, [1995] 3 SCR 674 (SCC)).
By Patterson MedMal on 10/4/2012 10:06 AM
Often, prior to the birth of a baby, the mother or the parents put together a “birth plan” to indicate to nurses, doctors and hospital staff the arrangements they want in place for this important life event. The plan’s provisions may express their wishes regarding pain therapy, birthing aids, and the physical environment they would like to have during labour, delivery, and recovery.

Remember that if a doctor has not received the informed consent of a patient to treat them, the doctor may be liable for the tort of battery. In Gerelus v. Lim, 2008 MBCA 89, the Manitoba Court of Appeal considered the presence of a birth plan as it interacted with the issue of informed consent.
By Patterson MedMal on 10/1/2012 10:51 AM
The Supreme Court of Canada held in Ciarlariello v. Schacter [1993] 2 SCR 119 that patients have a “clear legal right” to autonomy and self-determination in health care. As discussed previously on this blog, this means that medical professionals must seek patients’ informed consent before engaging in medical procedures. It also means that a patient may withdraw his or her consent at any time—even during the course of a procedure (unless doing so would threaten the life or seriously endanger the health of the patient).

Whether or not a patient has withdrawn consent is a question of fact and courts will look at both the words used by the patient, as well as the surrounding circumstances. While the Court stated in Schacter that it may be reasonable for a physician to take requests to stop the procedure as expressions of pain rather than a real withdrawal of consent, it was nonetheless held that where doubt exists, a physician must determine whether the patient wishes to have the procedure stopped. If a patient withdraws consent and the procedure continues, the medical professional responsible for continuing with the procedure may be liable in battery.
By Patterson MedMal on 9/18/2012 9:43 AM

Medical malpractice cases can raise issues of scientific complexity given the complex and contradictory medical evidence that can be tendered at trial by expert witnesses. However, do the complexities of such cases warrant depriving a plaintiff of their right to be tried by a civil jury?

In Anderson v QEII Health Sciences Centre, 2009 NSSC 242, the Plaintiff, Victoria Anderson, would require surgery. In preparation for surgery an IV was to be administered by a central venous line. Numerous unsuccessful attempts were made to insert the IV by a number of doctors and ultimately Ms. Anderson had a stroke. She was left suffering from a condition known as “locked-in syndrome”.

By Patterson MedMal on 9/5/2012 2:42 PM

Medical malpractice cases involving negligence often center around whether a doctor’s action, or lack of action, did not meet the required standard of care.

However, a doctor may argue that a poor result for the patient is not due to negligence, but due to the doctor exercising his or her medical judgment appropriately, even though the doctor’s medical judgment in hindsight turns out to be incorrect.

Medical judgment versus negligence was at issue in Moss v. Zaw, ((2009) 176 ACWS (3d) 546), a decision from the Ontario Superior Court of Justice. In that case, Mr. Moss underwent surgery for suspected cancer of the colon. His surgeon, Dr. Zaw, had proceeded to surgery without first ordering a colonoscopy, which is a standard test for colon cancer. During surgery, he discovered that Mr. Moss did not have colon cancer, and so the surgery was unnecessary.

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.

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