Medical Malpractice & Personal Injury Blog

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Medical Malpractice & Personal Injury
By Patterson MedMal on 11/3/2014 12:23 PM

On October 30, 2014, proposed changes to Nova Scotia’s Limitation of Actions Act passed second reading in the Legislative Assembly.  When declared in force, the amended Act would change a number of time periods within which an action may be filed for certain civil claims.  In particular, the amended Act would create a standard two-year limitation period for most civil claims, such as personal injury claims, and would also create a fifteen-year ultimate limitation period for claims which might not be immediately discovered.  The amended Act would provide that there is no limitation period for actions arising out of sexual assault and domestic violence. 

The status of Bill No. 64 may be followed here: http://nslegislature.ca/index.php/proceedings/bills/limitation_of_actions_act_-_bill_64

By Patterson MedMal on 9/19/2014 11:09 AM

A patient who wishes to bring forth a medical malpractice claim must keep in mind that they carry the burden of proving the doctor caused their injuries. This burden is known as causation. There are two methods courts use to determine causation; the “but-for test” and, the “material contribution” approach. A plaintiff should know which method the court will most likely follow in order to effectively prove their case. The recent decision, Fowlow v. Southlake Regional Health Centre, 2014 ONCA 193, highlights this distinction.


By Patterson MedMal on 7/8/2014 7:25 AM
When the privacy of personal health records is breached, the damage to patients can be tangible, such as financial damage, or intangible, such as emotional or psychological damage. Many provinces have enacted privacy legislation that applies specifically to health information. However, as the recent decision of the Ontario Superior Court of Justice in Hopkins v Kay, 2014 ONSC 321 demonstrates, there may be inconsistencies between provinces as to whether patients have options for recourse besides their provincial legislative schemes when the privacy of their personal health information has been breached.

In Hopkins, a group of patients filed a lawsuit against Peterborough Regional Health Centre...
By Patterson MedMal on 5/7/2014 10:30 AM
There is, by necessity, some latitude granted to parties who start an action for medical malpractice. Unlike their counterparts, most patients (or their family members) do not have the specialized medical or technical knowledge required to pinpoint exactly what went wrong in a given procedure. In many cases, the patient themselves is under anaesthetic or otherwise compromised, and can provide few details about the procedure itself. The events that occurred, and any errors that were made, are wholly within the knowledge of the doctor.
By Patterson MedMal on 4/20/2014 7:56 AM
Generally speaking, the plaintiff in a medical malpractice case must show on a balance of probabilities that “but for” the defendant’s actions, the injury would not have resulted. Although the plaintiff always has the burden to prove causation, in certain instances, the “but for” standard is impossible for the plaintiff to meet. In those cases, the Courts have relaxed the test. The case of Aristorenas v. Comcare Health Services, [2006] O.J. No. 4039 (ONCA) [Aristorenas] looks at this relaxed standard in the case of hospital-acquired infections.
By Patterson MedMal on 4/17/2014 11:52 AM
A patient’s treatment plan often includes various practitioners working collaboratively with their physician to return them to good health. This can mean involving medical professionals from various fields. However, just because the work is different, does not mean there is any less of a burden on the plaintiff to put forward the evidence necessary to prove their claim in a medical malpractice case against one of these practitioners.

Nine actions were started against various health providers in the case of Kim v. Choi, 2012 ONSC 6627 [Kim]. In addition to the doctors and nurses providing the plaintiff’s care, this list included four physiotherapists, one social worker, one chiropodist, and one massage therapist.
By Patterson MedMal on 12/23/2013 3:52 PM
If you are considering pursuing a medical malpractice claim to be decided by a jury as opposed to a judge, it should be remembered that jury verdicts are accorded a high degree of deference by appeal courts and will not be easily overturned.

The recent case of Goodwin v. Olupona, 2013 ONCA 259, involved the birth of twins by the plaintiff, Debra Goodwin. The first twin, Jessica, was delivered vaginally without complications. The second twin, Adam, was delivered by Caesarean section (“C-section”). Unfortunately, Adam was injured prior to birth and, shortly after he was born, was diagnosed with spastic quadriplegia. Mr. and Ms. Goodwin, on their own behalf and on behalf of their three children, brought a negligence action against the health professionals involved in Adam’s delivery and against the hospital where Adam was born.
By Patterson MedMal on 12/23/2013 2:17 PM
If you are considering pursuing a medical malpractice claim to be decided by a jury as opposed to a judge, it should be remembered that jury verdicts are accorded a high degree of deference by appeal courts and will not be easily overturned. 

The recent case of Goodwin v. Olupona, 2013 ONCA 259, involved the birth of twins by the plaintiff, Debra Goodwin. The first twin, Jessica, was delivered vaginally without complications. The second twin, Adam, was delivered by Caesarean section (“C-section”). Unfortunately, Adam was injured prior to birth and, shortly after he was born, was diagnosed with spastic quadriplegia. Mr. and Ms. Goodwin, on their own behalf and on behalf of their three children, brought a negligence action against the health professionals involved in Adam’s delivery and against the hospital where Adam was born.
By Patterson MedMal on 12/16/2013 12:07 PM

It may be tempting to think that as a plaintiff in a medical malpractice case, all one needs to enter as evidence are medical records. It may be tempting to think that the error(s) allegedly committed by the health care professional(s) would be apparent upon reading the medical files. Yet, the importance of expert testimony was recently emphasized by the Saskatchewan Court of Queen’s Bench in Harden v Chang, 2013 SKQB 419.

By Patterson MedMal on 12/2/2013 10:21 AM
The issue of consent often arises in medical malpractice cases. Physicians have an obligation to obtain informed consent from their patients; that is, to ensure that their patient is fully informed about their treatment, including the type of treatment, the risks involved, and any alternatives. But what happens when a doctor obtains consent for one procedure, and then performs another?