Medical Malpractice & Personal Injury Blog

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Medical Malpractice & Personal Injury
By Patterson MedMal on 7/17/2013 3:29 PM
The recent Ontario Court of Appeal case Manary v Strban, 2013 ONCA 319 upheld the lower court’s decision (2011 ONSC 176) that the designated attending physician may be found negligent for following the non-negligent recommendations of other physicians.

In Manary, the pregnant patient (“Ms. Manary”) was admitted to hospital with serious chest pain and shortness of breath. According to the policies of that hospital, the attending physician, or ‘Most Responsible Practitioner’, must be an obstetrician despite the fact that Ms. Manary’s condition was not directly related to her pregnancy.

Ms. Manary was seen by a respirologist, who suspected that the problem was either a pulmonary embolism or an aortic dissection. The respirologist performed tests, which did not positively indicate either condition. However, pulmonary embolisms are a common condition in pregnant women, and so Ms. Manary was started on treatment for...
By Patterson MedMal on 7/17/2013 3:09 PM
Given that medical procedures and treatments are often scientific, technical and outside the realm of common knowledge, courts typically defer to standards of practice established and maintained by the medical profession. As a result, evidence of the standard of care expected of health care providers is normally established by relying on the opinions of trained medical experts.

While experts play a very significant role in most medical malpractice claims, courts are sometimes permitted to set the standard expected of health care providers when they fail to take obvious and reasonable precautions apparent to the average person (As confirmed by the Supreme Court of Canada’s decision in ter Neuzen v Korn [1995] 3 SCR 674) . In some circumstances, the assistance of experts may not be required to establish the negligence of a medical care provider. 

The recent decision by the Ontario Court of Appeal in Goodwin v Olupona, 2013 ONCA 259 applied the ruling in Korn and confirmed that the Plaintiff...
By Patterson MedMal on 7/17/2013 3:03 PM
It is well-established that medical providers must obtain a patient’s informed consent prior to undertaking any medical procedure. But what happens when a patient attempts to withdraw her initial informed consent midway through a procedure? Judicial approaches to this question differ between common law systems, and they may reveal something about whose interests courts are seeking to protect.

The Supreme Court of Canada ruled in Ciarlariello v Schacter, [1993] 2 SCR 119, that a patient has a right to withdraw consent during a procedure as long as it is safe to do so (see our previous post here). More than this, however, the court suggested that doctors generally have a responsibility to ascertain whether their patients are formally withdrawing consent, or whether they are merely expressing their discomfort with phrases like “Stop, I can’t take this anymore.” The Schacter ruling would appear to lean in favor of patients, placing a positive burden on doctors to clarify ambiguities where a patient’s words might be read as either mere discomfort or a request to halt a procedure.

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By Patterson MedMal on 5/31/2013 9:03 AM
The recent Supreme Court of Canada case, Ediger v Johnston, 2013 SCC 18, is an obstetrical negligence case originating in British Columbia. The case involves important issues about the standard of review for causation issues.

In Ediger, the plaintiff is 15 year old Cassidy, represented by her litigation guardian. Cassidy suffers from spastic quadriplegia and cerebral palsy and is non-verbal, tube-fed, confined to a wheel chair and totally dependent on others for all of her daily needs. Her life expectancy is 38 years. Her condition was caused by persistent bradycardia (a sustained drop in the baby’s heart rate) during her birth that caused her severe and permanent brain damage.
By Patterson MedMal on 5/28/2013 12:14 PM
The Supreme Court of Canada’s recent decision Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30, held that reproducing a lawyer’s submissions within a judicial decision is prima facie acceptable. The SCC also upheld an award of more than $4,000,000 for medical negligence that caused the infant plaintiff to be born with significant brain damage.
By Patterson MedMal on 4/1/2013 3:17 PM
Edwardson v St Joseph’s Healthcare Hamilton (St Joseph’s Hospital), 2012 ONCA 719, a recent Ontario Court of Appeal case, considered the issue of informed consent when multiple physicians are consulted. The facts of the case are as follows: The plaintiff had a consult with a physician in Nova Scotia for a cervical rhizotomy, a procedure for managing problem nerves. The surgery was performed in Ontario and the plaintiff suffered a stroke as a result of it. The plaintiff sued Dr. Kahn, who performed the surgery, and argues that the doctor failed to obtain informed consent. At trial, the plaintiff was successful and was awarded $200,000 in general damages and $100,000 in future economic loss. Dr. Kahn appealed the decision.
By Patterson MedMal on 3/13/2013 8:21 AM

Section 51 of British Columbia’s Evidence Act provides that a witness in a legal proceeding, whether party to it or not, must not be permitted to answer a question or produce a record related to an investigation into a hospital’s safety, patient care, and practices.

The recent case Parmar v Fraser Health Authority, 2012 BCSC 1596 considered the issue of admissibility of this type of hospital records. The plaintiff in Parmar was the litigation guardian of Harsimran Parmar, an infant who suffered from severe brain damage due to oxygen deprivation prior to his birth. An action was commenced for medical malpractice.

By Patterson MedMal on 3/6/2013 1:59 PM

The Ontario Superior Court of Justice nearly dismissed a recent case, Robbs v. Lee, 2012 ONSC 6853, for delay, as the case was still nowhere near ready for trial over twelve years after the patient’s death which sparked the lawsuit.

In June of 1999, the patient Pamela Robbs died following complications from surgery. Her family commenced a lawsuit in June of 2000, alleging that the doctor primarily responsible for her care and the staff of the hospital where she was treated were negligent in failing to properly monitor her post-operative condition.

The parties were provided with a pretrial conference in April 2007 and the trial was put on the list for September 2008. By August 2008, however, the action was still not ready for trial, as the plaintiffs had failed to secure necessary expert reports, and so it was struck from the trial list. In March 2009, the defendant hospital and doctor arranged a discovery of the main plaintiff. No steps had been taken to advance the action between March 2009 and February 2012, and the defendants brought a motion seeking an order to dismiss the action for delay.

 

By Patterson MedMal on 1/28/2013 3:49 PM
When a patient gives consent to a medical procedure, it must meet the standard of informed consent. It is important that patients have a clear understanding and appreciation of the risks involved in medical care. The issue of informed consent arises in many medical malpractice cases and recently, the British Columbia Supreme Court considered the issue in Rasman v Regan, 2012 BCSC 1650.

In Rasman, the patient had broken his collar bone while snowboarding. He was seen by Dr. Regan, an orthopedic surgeon, who recommended surgical repair. The surgery, as well as its risks and complications, were explained to the patient, and the patient signed a consent form acknowledging such. 
By Patterson MedMal on 1/17/2013 11:16 AM

As discussed before on this blog, medical malpractice cases typically involve complicated medical evidence beyond the understanding of the ordinary trier of fact (judge, or judge and jury), so medical experts are often called to help explain the issues and provide their opinion on the case. Before the expert’s opinion will be considered by the court, he or she must be qualified as an expert in the relevant field by proving to the court that he or she has the background, training and experience necessary to provide a useful opinion.

A medical expert is not someone simply picked off a shelf. In medical malpractice cases, lawyers carefully select the expert whose evidence they believe will be accepted by the court. Factors which may lead the court to accept the evidence of one expert over another include the expert’s knowledge and relative expertise in the area as well as his or her presentation in court – to be taken seriously by the judge, experts must be objective and fair in giving their evidence.