Medical Malpractice Expert

A famous study by Harvard Medical School determined that over half of all injuries caused by medical management (in other words, not caused by the patient’s initial injury or disease) were preventable, and another quarter of those incidents were caused by negligence.

A report published in the May 25, 2004 edition of the Canadian Medical Association Journal entitled: “The Canadian Adverse Events Study: the incidence of adverse events in hospital patients in Canada” confirmed the findings of similar studies in the United States, Australia, the United Kingdom, Denmark and New Zealand.

The Canadian study concluded:

• As many as 24,000 patients die each year due to “adverse events” (doctors code words for a medical mistake).

• 87,500 patients admitted annually to Canadian acute care hospitals experience an adverse event.

• 1 in 13 adult patients admitted to a Canadian hospital encounter an adverse event.

• 1 in 19 adults will potentially be given the wrong medication or wrong medication dosage.

• 37% of adverse events are “highly” preventable.

• 24% of preventable adverse events are related to medication error.

A report by the Canadian Institute for Health Information (CIHI) indicated that nearly one quarter of Canadian adults (5.2 million people) reported that they, or a member of their family, had experienced a “preventable adverse event” (medical error).

Are Canadian Medical Malpractice Claims Different Than in the U. S.?

In a word; yes.

Lot’s of people have read about large jury awards for personal injury claims in the United States. Sometimes the American jury awards seem to be out of proportion to the injury.

In Canada, court awards are much lower than awards for similar injuries from courts in the United States. Cases that might be successful in the U.S. are simply not economically feasible to pursue in Canada.

For example, the province of Nova Scotia also has some of the most conservative (lowest) awards in Canada for compensation for personal injury claims.

Role of the C.M.P.A.:

In Canada, most doctors are defended by a single organization, the Canadian Medical Protection Association (the C.M.P.A.).

According to a recent annual report, the C.M.P.A. has two point nine (2.9) BILLION DOLLARS in assets (money in the bank). The C.M.P.A. is able to use this money to hire the best experts and lawyers money can buy.

Many victims of serious medical errors cannot work, or have huge expenses for ongoing rehabilitation or medical care.

Against such overwhelming financial odds, Canadian victims of medical malpractice face an almost insurmountable challenge to obtain justice and fair compensation for their injuries.

Remember the Canadian Medical Association Journal study that determined that over 87,000 patients in Canada suffer an adverse event and as many as 24,000 people die each year due to medical errors? That’s more than 100,000 potential malpractice claims in Canada every year!

But between 2002 and 2006 the C.M.P.A. reports only 5246 lawsuits were filed against doctors in Canada: only about a 1000 claims per year.

In other words, out of 100,000 potential claims 99% of potential medical malpractice victims never even filed a claim!

The C.M.P.A. reports it’s success rate in defending claims brought against doctors. More than 3800 of the 5000 claims were dismissed or abandoned because the victim or his or her family quit or ran out of money, or died before trial.

Some Frightening Statistics:

• The C.M.P.A. settled only 229 claims out of court (usually after several years of litigation and just before trial).

• Of the 577 cases that went to trial only 121 resulted in a verdict for the Plaintiff victim. In other words, only twenty percent (20%) of medical malpractice plaintiffs actually won their trial.

• For the few victims who won at trial, the median damage award was only $95,500.00.

• In 2006 the C.M.P.A. spent 72 million dollars on legal fees to defend doctors across Canada.

• Of more than 5000 lawsuits filed against doctors, only two percent (2%) resulted in trial verdicts for the victim.

In other words, 98% of Canadian medical malpractice victims never receive a penny in compensation!

The odds against medical malpractice victims are almost overwhelming. If you think you or a family member has suffered an injury or loss as a result of medical malpractice it is critical to get proper advice. An experienced medical malpractice lawyer can tell you if you have a potential claim and can advise you what you need to prove to have the best chance of winning your case.

Medical malpractice can happen in two ways:

1. If your doctor did not have your informed consent to perform a medical procedure that caused you an injury;

2. If your doctor was negligent, and the negligence caused your injury.

Informed Consent to Medical Treatment:

Everyone has the legal right to decide what can be done with his or her own body. Because of this legal right, your doctor needs your permission, (the legal term is consent) before he or she can treat you.

What is Informed Consent?

You can only give proper consent if you are provided with all the information that is necessary to make a decision about the proposed medical treatment. It is not acceptable for your doctor to simply ask if he or she has your permission to perform a medical procedure. Doctor: “Can I take your kidney out?”
Patient: “Umm okay.”

You must be able to understand the reasonable and foreseeable consequences of giving permission (consent), or not giving permission, for the medical procedure.

In Canada, it is generally accepted that in order to provide proper permission for medical treatment your doctor must explain to you:

• The nature of the proposed medical procedure;

• The reasonable alternatives to the proposed medical procedure; and

• The relevant risks, benefits, and uncertainties related to each alternative.

Your permission or consent may be expressed in words or implied by your actions. For example, when you are undergoing a surgical procedure your doctor will usually get you to sign a consent form as part of the consent process to confirm your permission to perform the medical procedure.

Any medical procedure that is performed without proper informed consent is considered to be an assault. The doctor who performed the medical procedure is responsible for any injury suffered by the patient as a result of the medical procedure.

Unfortunately, it is very difficult to win medical malpractice cases involving allegations of informed consent. Often the question of whether the risks were properly explained to the patient boils down to the doctor’s word against the patient.

In most of the reported medical malpractice cases across Canada, judges and juries tend to favour the doctors word, unless there is clear evidence to support the patient’s version of events.

Therefore, it is important to document the consent process by making notes of any discussions that you have with your doctor before you undergo a medical procedure. Particularly any discussion you have with your doctor about the risks, benefits and alternatives of the proposed medical procedure.

What is Negligence?

People are not expected to be perfect. Just because someone makes a mistake does not necessarily mean the mistake was negligence. But sometimes a mistake is so obvious it is considered to be negligent.

Doctors and nurses are expected to use reasonable care and judgment when treating patients. Doctors and nurses are expected to meet the standard of care expected of a reasonably competent doctor or nurse. If they fail to meet the standard of care, that’s negligence.

What Do You Have to Prove to Win Your Case?

There are four things that you have to prove in order to win your medical malpractice case:

1. Standard of Care:

You will need expert evidence to show what standard of care is expected of a reasonably competent doctor. Doctors in the same specialty as the negligent doctor must be willing to testify that the conduct of the doctor fell below accepted standards. Doctors are not expected to be perfect. But they are expected to be reasonably competent.

2. Breach of the Standard:

You will need expert evidence to prove that the doctor did not meet the standard expected of a reasonably competent doctor.

In other words, did they do something that they should not have done, or did they fail to do something that they should have done?

Making a simple mistake or getting a bad result is not enough - you must prove that it was a significant error which directly led to your injury.

3. Causation:

Not only must you prove that the doctor breached the standard of care; you must also prove that the breach actually caused your injury.

It is possible that a doctor can be negligent (breach the standard of care), but the negligence isn’t what caused the injury

For example, failing to wear surgical gloves during an operation is a breach of the standard of a competent doctor. But it is not likely to have caused you to suffer a stroke during the operation.

On the other hand, failing to wear gloves may very well cause a surgical wound to become infected, leading to serious injury or death.

4. Damages:

Finally, you have to prove what the financial consequences of the injury has been so that the court can award damages for pain and suffering, and any income loss or medical expenses as a result of your injury.

You will need experts like a physical medicine specialist to prove the extent of your injuries; a vocational expert to establish how your injuries affect your ability to work; an actuarial or economic expert to calculate your past and future income loss and future pension loss.

Medical malpractice claims in Canada are complicated, expensive and risky. If you think you or a family member has been a victim of medical malpractice it is important that you contact an experienced Canadian medical malpractice lawyer to get some advice.

Is it malpractice if a doctor ignores an abnormal computerized EKG result?

Is it malpractice if a doctor fails to inform a patient that their MRI result is abnormal?

Is it a departure from good and accepted practice if a radiologist misreads a chest x-ray, that in hindsight shows a malignant mass that turns out to be lung cancer?

Is it wrong for a doctor to put surgical clips across the common bile duct when doing a laparoscopic gallbladder removal?

What do you think of a doctor who takes cash for a procedure, does a “half-baked” job, and refuses to return the money to the patient? Would it sound better if I told you the doctor gave up his license to practice, abandoned his patients, and now each of his patients with “sub-standard” treatment must get corrective treatment at the going rate, which is double or triple than what this doctor originally charged?

What about the case of a man who collapses at home, is rushed to the emergency room, has emergency surgery on his intestines and he comes out of surgery needing to have his hand amputated days later.

Maybe this one will catch your attention:

A woman goes into the hospital for a total knee replacement. The surgery goes well. In the recovery room a drain in the knee is attached to a tube for drainage. Unfortunately, the nurse who attached the drain tube attached it to an oxygen line instead of a suction line. Instead of fluid being pulled out of the knee space, air was being pumped INTO the knee. Since the knee was a closed space, the air blew into the space directly under the skin and muscles, travelled up her entire leg, inflating her leg like a balloon, then going up to her belly, causing her belly to become as large as a pregnant woman’s. The doctors were eventually alerted to this inexplicable condition and rush the woman into the operating room where they had to perform emergency surgery to find out why her belly was inexplicably becoming larger and larger.

Immediately upon opening her belly, a huge amount of air was released- like a balloon that is quickly deflated. Turns out, there was nothing wrong with her belly. Working backwards, the doctors were able to figure out that the drainage tube had air going into her knee which then travelled up to her belly, causing her to look like a hot-air balloon. The failure to recognize the mistake led this woman to have emergency abdominal surgery–something that she did not need. Her anticipated hospital stay of one day turned into a week-long stay with complications following the belly surgery.

What about the man who had eye surgery to repair a drooping eyelid and came out of surgery being blind? Turns out that the eye surgeon cut his optic nerve during surgery, and only realized the horrible mistake a day later- too late to fix the problem. The man is now permanently blind.

What common recurring theme is found in each of these cases?

Carelessness by a doctor or nurse. Naturally, the doctors and nurses did not intentionally make these mistakes and errors, yet they occurred because of inattention and carelessness. Each of the cases discussed above

Doctors are responsible for the health and well-being of their patients. Hence, any blunder on the doctor’s part could prove costly for the patient.

Any injury caused to a patient as a direct result of the neglect or incompetence on the doctor’s part is termed medical malpractice. Instances of medical malpractice are seen whenever a patient - without justification - suffers prolonged or increased suffering, either because of a delay in diagnosis or because of a faulty diagnosis or treatment. In serious cases, this can even lead to lifelong debility or death of the patient.

If you are a victim of medical malpractice, you have put up with preventable pain because of your doctor’s fault. You are thus entitled to claim compensation to make up for your suffering. Remember, however, that to be able to do so, you will have to prove that your doctor was at fault.

This is a four-step guide to help you file a winning medical malpractice claim:

Step 1: Determine whether the doctor was at fault. The only way to do this is to thoroughly research the information available on your specific medical condition. Remember, you are dealing with a subject that your doctor knows more about than you do. To prove that he is guilty you will need to:

• Speak to specialists
• Refer to medical literature
• Talk to other patients with a similar condition

Step 2: Find out if you have a valid claim. This is not necessarily the same as the above. For a claim to be valid, you should have suffered a reasonable amount of distress. What’s more, you should be in a position to prove that your distress was caused due to your doctor’s mistake. An inconsequential delay, for instance, that caused you slight inconvenience, will not constitute a valid claim.

Step 3: Collect incriminating evidence. In a medical malpractice case, evidence will generally consist of your medical reports along with records of all the treatment prescribed by your doctor.

Step 4: Hire a lawyer. A competent lawyer will help you to handle complicated legal formalities and, if it comes to that, to fight your case in court.