Surgical Infections a Huge Problem
It’s not news that surgeries can result in infections.
More than 250,000 patients develop infections in hospitals across Canada every year. 8000 to 9000 patients will die from the infections they develop in the hospital.
As a medical malpractice lawyer I am often faced with explaining the difference between proof of negligence and proof of harm. Clients find it difficult to understand how a doctor may be found to be negligent; but still not be responsible for the patients injury or death.
Fowlow v. Gupta
A perfect example is the case of Fowlow v. Gupta which was recently decided by the Ontario Supreme Court.
As a Halifax medical malpractice lawyer I frequently get calls from other lawyers who don’t practice this area of law, wondering if their client has a potential medical malpractice claim.
This week I got a call from a colleague of mine, and since his question is one I have been asked many times over the years, I thought it would be helpful to post some information here in case it is helpful to anyone else in the same circumstances.
Work Injury Leads to Negligence in Medical Treatment
Each year, as many as 250,000 Canadians suffer from hospital acquired infections, resulting in up to 12,000 annual deaths. It is estimated that over 30% of hospital acquired infections are preventable. Proper hand hygiene is the single most important way to prevent the spread of infections.
But how do you ensure that your doctor or nurse has washed their hands before they attend to you? See for example my article: Did You Wash Your Hands!? A Lesson in Tact
I have written before about the dangers of hospital acquired infections: Nova Scotia Medical Errors: C- difficile Infections kill 4 in Cape Breton Hospitals
I have discussed before the significant costs involved in pursuing medical malpractice claims in Nova Scotia. The complexity of medical malpractice claims means legal fees and expenses to hire medical experts can potentially bankrupt an unsuccessful plaintiff.
Case in point is a recent decision from Ontario Manary v. Halmo et al.
After a 19 day trial the defendant, Dr. Steven Halmo was found liable to the plaintiff and ordered to pay damages in the amount of $430,000.00.
This month the Superior Court of Justice in Ontario released an interesting decision in a medical malpractice case Meuwissen v. Perkin. As a Nova Scotia medical malpractice lawyer, I found the case interesting because it deals with some unique issues of production that I have not run into in a medical malpractice claim in Nova Scotia or New Brunswick where I do most of my cases.
Implied Undertaking Rule
In Canada, we have what is known as the “implied undertaking rule”. What that means is there is an implied promise that information collected in the course of a lawsuit will not be disclosed to anyone who is not a party to the litigation.
Medical malpractice lawyers know most potential victims of medical malpractice never file a claim. Recently a report by ABC News has confirmed that in the United States more than 80% of hospital errors are not reported by hospital employees.
Hospitals Don’t Learn From Mistakes?
The report analyzed data from hospitalized Medicare patients. Investigators determined even when mistakes were reported hospitals rarely changed their policies or practices to prevent repeated errors. Hospitals usually claimed that errors were not due to “systemic quality problems”.
In any medical malpractice case the plaintiff bears the burden of proving that the defendant caused the patient’s injury, disability or death.
In many cases the initial cause of the plaintiff’s injury was not brought about by the defendant doctor. Rather, the plaintiff presented with an illness or medical condition which is misdiagnosed and, as a result, the patient doesn’t get treatment that might have cured the illness or condition (or prevented further deterioration).
Loss of Chance
I read an interesting decision out of Alberta recently, Gilberds v. Sobey that deals with informed consent to medical treatment and whether statistical information should be given to patients to help them determine if they will undergo treatment.
The case is interesting (at least to those of us doing medical malpractice litigation) because it also touches on the issues of what medical malpractice claimants need to prove to win their claims and the standard of care in medical malpractice claims.
Justice Ross pointed out the importance of statistical evidence at paragraph 81 of her decision:
I agree with Ferrier J. that effective communication of treatment risks requires some information on the probability of a particular result: Matuzich v. Lieberman. The degree of probability of a risk is obviously relevant to reasonable patients considering whether they want to undergo treatment; indeed the degree of probability is one of the factors that qualifies a risk as material.
I go into more detail about the facts of the decision and it’s importance to medical malpractice claims on my Atlantic Canada Personal Injury Lawyer Blog.
A major study conducted by the Canadian Medical Protective Association (CMPA) has identified ten key areas that can help improve patient safety.
Diagnostic testing is a critical part of modern medical care. Conducting appropriate tests in a timely fashion and reporting results of testing is key to ensuring appropriate diagnosis and treatment.
Miscommunication a Risk to Patients
