Medical Malpractice & Personal Injury Blog

Author: Created: 3/12/2012 9:32 AM RssIcon
Medical Malpractice & Personal Injury
By Patterson MedMal on 6/22/2015 8:21 AM
In medical malpractice, the evidence from specialized medical fields can be voluminous and complex. At what point does the case become too complex for a jury? This was the issue addressed by the Nova Scotia Court of Appeal in Anderson v Cyr, 2014 NSCA 51.
By Patterson MedMal on 3/10/2015 2:40 PM
Causation is a fundamental component of liability in any negligence action. Even in cases where a defendant has acted negligently, they are only liable for injuries that would not have been suffered “but for” their negligence.
By Patterson MedMal on 3/5/2015 4:25 PM
The plaintiff’s burden for proving causation in medical malpractice cases was recently eased in Quebec. In St-Germain c Benhaim, 2014 QCCA 2207, the Cour d'appel du Québec considered the case of a seemingly healthy middle-aged non-smoker, who received a chest x-ray in November, 2005 as part of his annual physical. The radiologist assessing the scans noticed a lesion on the plaintiff’s lungs and two subsequent x-rays were ordered. The final scan in December, 2006 led to further diagnostic tests leading to a diagnosis of Stage IV lung cancer. The plaintiff sued both doctors but died in June, 2008, alleging that an earlier diagnosis would have led to recovery. If the cancer was Stage I or II at the time of the first scan, his prognosis was very good. However, if the cancer had reached Stage III or IV, his condition was already terminal.
By Patterson MedMal on 3/5/2015 1:42 PM
In Bezanson v Sun Life Assurance Company, 2015 NSSC 1, the plaintiff sought a declaration that she has been totally disabled from her employment. To support her claim, she sought to introduce the medical file kept by her personal physician as evidence submitted for the truth of its contents. The file contained numerous reports prepared by various experts. The plaintiff sought to have the medical file introduced under the business exception to the hearsay rule as developed in Ares v Venner, [1970] SCR 608.
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.