Medical Malpractice & Personal Injury Blog

Author: Created: 3/12/2012 9:32 AM RssIcon
Medical Malpractice & Personal Injury
By Patterson MedMal on 10/25/2013 7:59 AM
The recent decision of the Supreme Court of Canada in Cojocaru (Guardian ad litem of) v. British Columbia Women’s Hospital & Health Centre, 2013 SCC 30, reminds us of the necessity of proving causation in a medical malpractice claim. It reiterates how proving an error was committed by a physician or nurse is not enough to prove one’s claim.

In this decision, the mother’s uterus ruptured during induced labour and her infant was born with significant brain damage. The mother and infant brought an action for damages in medical negligence against the Hospital; attending Nurses Bellini, MacQueen and Verwoerd; and Drs. Dale R. Steele, Jenise Yue and Fawaz Edris.
By Patterson MedMal on 8/19/2013 12:49 PM
During the course of their professional duties, physician and other health care professionals are sometimes called to treat patients with wounds that may raise the suspicion of criminal activity. Recent legislation in seven provinces now requires health care facilities to report the treatment of gunshot wounds to the local police. With the exception of Ontario and Nova Scotia, these statutes also provide that stab wounds be reported in the same fashion:
By Patterson MedMal on 8/16/2013 2:11 PM
The recent decision of the Supreme Court of Ontario, Akl v Collins, 2013 ONSC 3292, demonstrates that while the particular circumstances of the patient may be taken into account, the determination of ‘what is a material risk’ is objective.

Mr. and Mrs. Akl had been trying unsuccessfully to have a child for several years when Mr. Akl was referred to the defendant physician, Dr. Collins – a well-known doctor in the field of male infertility.
By Patterson MedMal on 8/13/2013 1:43 PM

Medical malpractice suits in Canada typically arise in the context of negligent delivery of treatment. We might think of botched surgeries, where the doctor has not executed an operation with the skill or prudence demanded by a medical standard of care. Yet a doctor’s duty to his or her patient does not end when the scalpel is put down. There will be times when a doctor may still be held liable for steps taken after the hands-on treatment is complete and the patient has returned home.

In Dwyer v Maharajh, 2009 NLTD 179, the plaintiff underwent a procedure to remove a stone from her right uterer. After the surgery, she was advised by the defendant surgeon that as a result of the procedure she had a small tear in her uterer. The surgeon was aware, however, that the tear was significantly larger and more serious than his initial comments to the plaintiff indicated.

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.

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.