Wagners Medical Malpractice Lawyer Blog

Unfortunately it happens all too often that patients in Nova Scotia, New Brunswick and PEI are injured by amedical error. Medical malpractice cases can often be difficult to prove because the medical/hospital records are not readily available due to the passage of time. An experienced medical malpractice lawyer can still achieve justice on behalf of an injured patient in spite of the destruction of records. An example of this can be seen in a recent case out of the Ontario Court of Appeal.

The facts in Gutbir v. University Health Network are tragic. In January of 1984, a pregnant mother was admitted to hospital in her 42nd week of pregnancy. At 7am the next morning she went into labour. The attending nurse came into the room every 30-40 minutes to listen to the foetal heart rate. The foetal heart rate gives nurses and doctors an assessment of the condition of the infant. The nurse permitted everything to proceed normally. There was no sense of urgency. The mother assumed that her baby was healthy.

Her daughter was born at 3:45 pm. She was blue, silent and in critical condition upon delivery. A sense of panic set into the room for the first time. A specialist was promptly called. The baby was intubated and given oxygen. She survived but her brain was permanently damaged.

After the infant stabilized and was released, the family moved to Israel. It would be 15 year later, when the infant had aged and the extent of her injuries were fully realized, that the family commenced a lawsuit. By 2001, the Hospital where the child was born had destroyed all records relating to the birth. Fortunately, some records from other facilities were still available.

The lawsuit alleged that the doctor and main nurse were negligent in failing to detect signs of foetal distress through the heart monitoring. It was further alleged that by failing to detect the in-utero suffocation, the doctor and nurse permitted labour to continue instead of prompting urgent delivery; had they met the standard of care, and noticed the foetal distress, the brain injury could have been avoided. The doctor settled before trial. The hospital (who employed the nurse) did not.

Following a jury trial that lasted several weeks, the jury found in favour of the injured child. The records, having been destroyed, did not permit evidence on exactly what information was known by the nurse. However, the jury inferred from the evidence that the baby must have been in distress and that this would have been detectable by fetal heart monitoring. It agreed that the nurse must have been negligent for failing to see what was there to be seen: an infant in distress. The jury found that by failing to make this necessary observation, the baby stayed in the womb when she should have been promptly removed. The jury found that the failures of the nurse caused the brain injury.

The hospital appealed on the grounds that there was no evidence available to support these findings. Essentially, the hospital argued that because the records had been destroyed, the injured patient was unable to prove what information was available to the nurse and what the nurse may have done with that information.

The Court of Appeal carefully reviewed all of the evidence available to the jury at trial. Despite the lack of hospital records, the Court found that there was sufficient evidence to support the inferences of negligence and causation made by the jury. On the issue of causation, the Court stated:

[43] While there was no direct evidence of causation, there is evidence from which the jury could properly infer a causal connection. Dr. Carson testified that, if EFM had been used or IA had been done properly, the distress of the foetus would have been detected, detection would have prompted intervention, and intervention would likely have been beneficial in this case. The jury's answer tracks Dr. Carson's evidence which indicates that they accepted it. The evidence of Dr. Hill, a paediatric neurologist, was that it takes one or two hours of hypoxic ischemic insult before injury results. The extent of the injury increases as time goes on. The evidence of Dr. Carson and Dr. Hill establishes that, had the standard of care with respect to foetal monitoring not been breached, the distress of the foetus would have been detected and, once detected, there was sufficient time to deliver Zmora before injury to her brain resulted.

[44] Further, given the evidence that the attending nurse fell below the standard of care with respect to foetal heart rate monitoring, and the jury's rejection of the alternate theory that hypoglycaemia was a major contributor to Zmora's brain damage (which is not contested on appeal), the nurse's breach is the only reasonable explanation for the cause of Zmora's brain injury.

[45] The appellant further submits that the jury only found that any negligence on its part was found by the jury to be a "lost chance" to prevent permanent brain injury as opposed to a finding on the balance of probabilities that the appellant caused or materially contributed to Zmora's injuries. The appellant's submission is based on the following sentence in the jury's answer to question 2-b (i.e., how the attending nurse's breach of the standard care caused or materially contributed to the injuries of Zmora): "[Detection of foetal heartbeat abnormalities] would have allowed an earlier intervention, (birth of the baby), which could have prevented permanent brain injury." While this sentence taken in isolation can be read in the manner submitted by the appellant, when the jury's answers to the questions are read as a whole and in conjunction with Dr. Carson's evidence, we are satisfied the jury's finding was based on a balance of probabilities.

[46] Indeed, the jury's answer to the question on causation begins with, "On the balance of probabilities, Zmora's brain injury was caused by prolonged partial hypoxic insult. This would have taken place one to three hours before birth." The wording of the sentence relied on by the appellant reflects the jury's understanding that the longer the negligent situation prevailed, the more likely it was that serious permanent brain injury would result.

[47] Finally, we reject the appellant's submission that in order for causation to be established evidence as to exactly when irregular foetal heart beat began was required. Having regard to the evidence and the jury's answers to the two questions, if, as required by the standard of care, EFM had been used, or IA done after a contraction for the required length of time and with the required frequency, it is likely that the irregularities in the foetal heartbeat would have been noticed at a stage when permanent brain injury could have been prevented. In other words, the injuries were preventable on a balance of probabilities.

Sometimes direct evidence is not available. This case in an excellent example of how inferences can support findings of negligence and causation even in cases where direct evidence is not available.

The lawyers at Wagners represented a client in a medical malpractice trial in Sydney, Nova Scotia this month. The claim alleged negligence on the part of medical residents who treated the plaintiff. The residents were newly out of medical school. The medical malpractice lawyers at Wagners alleged that they did not appreciate their own inexperience and limitations before treating the plaintiff. As a result, it is alleged that the plaintiff sustained a tragic injury. She continues to live in Nova Scotia but is severely disabled.

The leading decision on the standard of care expected of medical residents is Fraser v. Vancouver General Hospital, [1952] 2 S.C.R. 36. Following a car accident, the patient in that case had neck x-rays taken and interpreted by two residents. Without consultation with more experienced doctors, they decided that there was nothing of concern. The patient was accordingly discharged. He continued to suffer from neck pain and a couple days later died with what was later diagnosed as a dislocated neck fracture. The Supreme Court of Canada found that the residents had failed to meet the requisite standard of care by not calling the radiologist who was available. The Court stated:

[A resident] must use the undertaken degree of skill, and that cannot be less than the ordinary skill of a junior doctor in appreciation of the indications and symptoms of injury before him, as well as an appreciation of his own limitations and of the necessity for caution in anything he does.

The patient in Adair Estate v. Hamilton Health Sciences Corp., complained of vomiting and abdominal pains and was sent to the McMaster University Medical Centre for assessments. On two occasions in the same day she was attended to by a third year resident, defendant Dr. McDonagh. On the first assessment, Dr. McDonagh diagnosed her with constipation and sent her home. She returned later than evening. On the second occasion, Dr. McDonagh diagnosed postoperative ileus (not life threatening). However, she was admitted to hospital for observation given the possibility that she had a small bowel obstruction.

The patient remained in hospital overnight under the care of a second resident, the defendant Dr. Hopkins. Unfortunately, the plan to deal with the contingency of a small bowel movement was not followed. The next morning she was diagnosed with the condition and had emergency surgery. She died from complications that followed her post-surgery recovery. The Court found as fact that the malnutrition caused by a delayed and sub-standard bowel obstruction diagnosis was a major factor that materially contributed to the chain of causation that ended with the patient's death. The two residents, along with two specialists, were found negligent and liable.

In assessing the standard of care applicable to residents, the Court stated at para. 137:

Like any student of any profession or trade, a resident must not fail to understand his or her own inexperience, lack of knowledge and lack of skill. For a student to ignore the certainty of these shortcomings and instead act in complex matters without the supervision of a principal is negligence of the highest order.

Regarding the liability of the third-year resident Dr. McDonagh, the Court stated:

He was a junior doctor who was upgrading his qualifications. As such, he should be held to the general standard of care of a reasonable and prudent doctor. This includes guarding against his lack of knowledge, skill and experience in the context of the residency. He was under a duty to seek the advice of his principals if he encountered a problem that was above his present stage of learning. ... It was below the standard of care expected of a prudent doctor who is learning as a resident to rely on his own incomplete and incorrect knowledge, to ignore these red flags and to disregard the opinions and observations of a much more senior and experienced physician.

The Court in Bearden v. Lee, assessed the liability of a first-year resident. The plaintiff in that case went to hospital emergency room with abdominal pains. He was assessed by a first-year resident, Dr. Abramson, who diagnosed gastro-enteritis and discharged him. The plaintiff's appendix ruptured three days later and he underwent an emergency appendectomy. Shortly after surgery, he developed the first of many hernias in incision requiring several additional surgeries. The Court found the resident to be liable, in part because:

...While confidence is a positive attribute of an experienced doctor, [and while I have every reason to believe Abramson is now a fine and experienced specialist,] I am of the view that on July 1-2, 1991 she inappropriately allowed herself to go unsupervised and confidently presented herself to Bearden as being more experienced and knowledgeable than she really was...

It is clear from these authorities that medical residents, while being held to the same standard as full physicians, must take caution of their own inexperience.

A medical malpractice trial decision released last month by the New Brunswick Courts is favourable to personal injury claimants in Nova Scotia, New Brunswick and PEI. It provides helpful guidance on how Courts will assess the complicated issue of causation in cancer cases where the negligence of a doctor did not specifically cause the cancer, but where it caused an increased risk of cancer.

The patient in the case had a mole removed from her buttocks in 1995. It reappeared a year later. It was repeatedly misdiagnosed by her doctor. In 2001 she mentioned the mole to another doctor who investigated and correctly diagnosed it as cancerous. Her oncologist advised her that it was a life-threatening disease, that it had already metastasized and that he was not optimistic about her outlook given that she had not been treated over the previous six years. He also advised her that her outlook was not good and that most patients in her circumstances face a life expectancy of one to two years.

Fortunately, the patient responded well to the treatment and though she spent years constantly attending medical appointments, all of her medical news has been positive. She is no longer physically ill. She filed a lawsuit against the doctor who misdiagnosed her 1995 and 1996 moles.

The trial judge found that the defendant doctor did not use a reasonable degree of skill and care to ensure that his diagnosis in 1995 was correct and that he did not meet the standard of care which he owed to his patient. It was further found that his manner of communicating the conclusion in his report was ambiguous, that it did not meet the standard of care he owed to his patient and that it contributed to her loss.

On the issue of causation the judge found that while the doctor's negligence did not cause the patient to get cancer, "...it was the direct cause of an increased risk to her health and the requirement that she submit to more onerous treatment. As a result of that she undoubtedly endured stress and anxiety and other forms of pain and suffering that would have attended this sequence of events, all of which she would not have endured, but for the negligence..." the doctor. He further found that his negligence was the factual cause of her losses.

Because his patient had been successfully treated, the doctor argued that she had no losses. He argued that while he may have been negligent, his patient suffered no damages. Lawyers for the doctor relied on a Supreme Court of Canada case involving a plaintiff who suffered severe stress after discovering a dead fly in a bottle of water. They relied on the following written statement from the Supreme Court of Canada:

...psychological disturbance that rises to the level of personal injury must be distinguished from psychological upset. Personal injury at law connotes serious trauma or illness...The law does not recognize upset, disgust, anxiety, agitation or other mental states that fall short of injury. I would not purport to define compensable injury exhaustively, except to say that it must be serious and prolonged and rise above the ordinary annoyances, anxieties and fears that people living in society routinely, if sometimes reluctantly, accept. The need to accept such upsets rather than seek redress in tort is what I take the Court of Appeal to be expressing in its quote from Vanek v. Great Atlantic & Pacific Co. of Canada (1999), 48 O.R. (3d) 228 (C.A.): "Life goes on" (para. 60). Quite simply, minor and transient upsets do not constitute personal injury, and hence do not amount to damage.

The patient argued that the psychological stress associated with a cancer misdiagnosis was greater than a "minor and transient upset" and that it therefore constituted personal injury and warranted damages. The judge agreed. The psychological effects associated with a cancer misdiagnosis were significant and warranted compensation, even though the patient had been physically cured.

Taking into account the fact that the patient suffered a major emotional and psychological trauma, the effects of these injuries on her over the last ten years, the life-altering effect that the doctor's negligence has had on her outlook on life and her career, the judge found that an appropriate award for pain and suffering was $100,000. Because the misdiagnosis also temporarily derailed the patient's career, the judge awarded an additional $263,600 for income loss.