Medical Malpractice & Personal Injury Blog

Author: Created: 3/12/2012 9:32 AM RssIcon
Medical Malpractice & Personal Injury
By Patterson MedMal on 12/14/2012 3:17 PM

All medical malpractice cases involving alleged negligence consider the standard of care.  Negligence is not found when there is no breach of the standard of care, so it is very important to know what that standard is.  Generally, the standard of care is that all medical practitioners must uphold a reasonable level of skill and knowledge, and exercise a reasonable degree of care expected of a normal, prudent practitioner.  However, the standard of care for medical practitioners specializing in a certain field is that of a normal, prudent practitioner of the same experience and standing.  Specialists are expected to have a higher degree of skill, training, and ability in their area of practice.

Adams v. Taylor, 2012 ONSC 4208, a recent case from Ontario, considered the standard of care expected of specialists, and how the court should assess standard of care generally.  In Adams, the Plaintiff had been seen by her family doctor for a lesion between her toes which the Plaintiff had for about a year by that time.  She was referred to a dermatologist who was asked to see the Plaintiff ASAP to rule out melanoma.  The dermatologist, Dr. Taylor, diagnosed the lesion as “probably benign” but suggested it was better off than on.  Due to the location of the lesion, Dr. Taylor thought a plastic surgeon should do the excision and made a referral to Dr. de Kleer.  Dr. Taylor did not specify in her letter to Dr. de Kleer that melanoma was a possibility, or that excision should be urgent.  She also did not include the referral letter from that Plaintiff’s family doctor asking her to rule out melanoma. 

By Patterson MedMal on 12/12/2012 3:22 PM

Experts are often called to testify in medical negligence cases to assist the trier of fact in making various determinations surrounding evidence, which is outside of their range of experience, to rule on the issues put before them.

The decision Gutbir v University Health Network, 2010 ONSC 6394 involved a medical negligence claim against a hospital and its employees surrounding the birth of Zmora Gutbir. This matter was tried by jury, and experts were called to provide evidence with respect to liability and causation relating to the brain injury Zmora suffered following her birth.

At trial, the Plaintiffs intended to call Dr. Max Perlman, a neonatologist, to testify about his treatment of Zmora as well as to have him qualified as an expert in order for him to give an opinion regarding the cause of Zmora’s brain injury and disability. The Defendant Hospital objected to the qualification and submitted that given the nature of Dr. Perlman’s evidence and the fact that he was a treating physician, he lacked the necessary objectivity to testify as an expert. It was further submitted that given the complexity and scientificity of the evidence, it would be difficult for the jury to distinguish between Dr. Perlman’s factual evidence as a treating doctor and opinion evidence as an expert witness. In contrast, the Plaintiffs argued that the Dr. Perlman did not have an interest in the outcome of the matter, that his objectivity as an expert was not lacking regardless of being a treating physician, and that the fact that this was a medical negligence case did not signify that a jury would not be able to properly comprehend his evidence.


By Patterson MedMal on 12/5/2012 9:12 AM
Where a patient being treated for a mental illness is injured during a hospital stay, courts have generally been cautious about finding negligence on the part of the hospital, sometimes even where the treating psychiatrist or other hospital staff truly have made errors of judgment.

One reason it can be harder to make out a claim for an injury to a patient staying at a psychiatric hospital is due to the kinds of facts involved in these cases, which often differ from those in other medical malpractice litigation. This can make it harder for psychiatric patient plaintiffs to prove their injury is a result of the negligence of the health professional or facility. For example, rather than legal issues of causation or whether there was consent, which are normal in a typical doctor-patient medical malpractice case, cases alleging negligence on the part of a psychiatric hospital frequently involve issues of foreseeability.

Basically, to prove negligence, your particular injury must have been a foreseeable result of the actions of the other party. For example, it is foreseeable that if a patient at a hospital is given too much medication, that patient may be injured or die from an overdose. It is a natural and probable consequence of the breach, and negligence is made out.
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.