Wagners Medical Malpractice Lawyer Blog

Babies are born every day in Nova Scotia, New Brunswick and PEI. While the birth of a new baby is usually one of the joyful moments in parents' life, tragically, there are times when that happiness can become catastrophic. All too often, as a result of the negligence a doctor or nurse, things go wrong in the hours or days before a birth causing lifelong permanent injuries to the child.

Because so many things can go wrong, mothers and babies need extra attention in the final stages of pregnancy and in the hours that lead up to delivery. Problems too often occur in a hospital delivery room, when the baby's injury is the avoidable result of negligent conduct by a doctor or nurse, or both.

There are many ways that birth injuries can occur. Injuries caused by a lack of oxygen are the most common. A lack of oxygen may cause an injury in a number of different ways. It may be the result of a lack of blood flow to the tissues (ischemia) or a lack of oxygen within the blood (hypoxia) or a combination of the two.

A baby who does not get enough oxygen during the labour and delivery process will usually demonstrate fetal distress. In the face of fetal distress, doctors and nurses are required to act with haste or else tragedy will occur. Brain injuries associated with oxygen deprivation are usually preventable. Through monitoring (usually by electronic fetal monitoring), fetal distress can often be picked up at an early stage and steps can be taken to have the baby delivered urgently in order to avoid any injury.

If oxygen deprivation goes undetected, or if the doctors and nurses do not act with appropriate urgency, a baby will likely sustain a brain injury. After birth, the baby may show low apgar scores. The baby may require resuscitation before he or she is able to breathe on his or her own. The baby may have poor tone, poor colour, a poor cry, poor suck, have a need for tube feeding, and/or have persistent abnormal tone. Seizures are often associated with fetal brain injuries. Such injured babies may require medications like Phenobarbital for seizures or antibiotics like Ampicillin and Gentamicin.

Babies who have suffered a brain injury may undergo extensive testing after birth. Abnormal blood gasses, x-rays, CT scans and MRIs may each be indicators of a brain injury.

Some babies with brain injury may have blindness or other vision deficits, epilepsy, quadriplegia or developmental delays. Some have more subtle injuries, which may not be as outwardly obvious but may still be very serious or disabling.

The costs of providing the life-long care and rehabilitation that a child with a brain injury needs can be huge. In addition, that child may not be able to grow up to be independent, or to earn a living in the future. A legal action may provide the funding needed to ensure that an injured child is properly taken care of in the future.

All too often babies in Nova Scotia, New Brunswick and PEI are born with preventable brain injuries. The experienced medical malpractice lawyers at Wagners have acted on behalf of many of their families and are pleased to have been able to achieve excellent results for many of them. Such funding will help the injured babies receive treatment and care suitable for their needs and, as best as possible, help them take steps to live with a degree of functional independence as they grow into adults.

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.

A recent medical malpractice Court decision stemming out of the death of a young patient holds responsible doctors accountable when they fail to make appropriate consultations.

It is typical when patients are admitted to hospitals that they have a main doctor assigned to direct their overall care and treatment plan. They are to provide a plan of care and obtaining consultations as appropriate. When a responsible doctor ignores obvious risks and medical knowledge in favour of an unsound consultations, and injury results, to what extent can the doctor absolve himself/herself of liability?

This question was answered earlier this year in the case of Manary v. Strban. The facts are as follows.

While pregnant with her first child, a young 28-year old woman died in hospital when her aorta ruptured. Fortunately doctors were able to save her baby via an emergency Caesarian delivery. The deceased mother's family brought a law suit against her doctors in which they alleged negligence. By the time the case went to trial, her daughter was 7 years old.

The deceased mother had been admitted to hospital 9 days before her death. She was restless, short of breath and in significant pain. She was assessed by a respirologist in the emergency room who noted a prominent heart murmur and what looked like an enlarged heart.

It was undisputed that her symptoms were indicative of two possible medical problems, both of which were very serious: pulmonary embolism or aortic dissections.

She was subsequently admitted to the obstetrical floor and placed under the care of an obstetrician. A CT angiogram was conducted by a radiologist who concluded that there was no evidence of either a pulmonary embolism or aortic dissection. The radiologist did note that there was a large aneurism in her aorta which was at that time 6 by 6 centimetres.

Statistics showed that the incidence of aortic rupture increased with aortic size and that at 6 centimetres, the risk of rupture at was 27.9%. All competent doctors know that when a rupture occurs, death is almost inevitable. Despite this, none of the doctors responsible for the woman's care took any steps to address the heart issues that might result from the presence of a diluted aorta.

Lawyers for the family argued that the obstetrician failed to properly manage the mother's care by not challenging the first diagnosis of pulmonary embolism when an alternative diagnosis was equally available.

The obstetrician's lawyers argued that he acted appropriately by deferring to the respiratory service for management of her medical condition. Although he was the responsible doctor, his lawyers argued that he was not required to question the diagnosis and treatment plan that the respirologists had instituted, or consider any alternative diagnosis.

The Court stated the standard to which the doctor would be judged, as follows:

A doctor is bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent, practitioner of the same experience and standing. The ultimate decision as to the standard of practice and care is for the court alone. The decision is not for medical experts, although their view is taken into consideration in determining the appropriate standard. The court is required to take into account a great many factors which can vary infinitely with each case. The degree of care that a doctor must exercise and the extent of advice that a doctor must give depends on a long list of varying circumstances.

If the practitioner holds himself out as a specialist, a higher degree of skill is required. When a patient submits to the direction and treatment of a specialist, the specialist owes a duty to the patient to use diligence, care, knowledge, skill and caution.

...

There can be no dispute that [the mother's] diastolic heart murmur combined with her enlarged ascending aorta constituted a serious danger sign. Those responsible for [the mother's] care opted, however, to continue to treat her for a pulmonary embolism because they believed that dissection and the risk of rupture of the aorta had been ruled out.

Should a prudent practitioner have maintained that belief, given the circumstances?

After hearing much expert evidence for both sides, the Court in the end found that the obstetrician acted negligently and that he had committed medical malpractice. As the doctor ultimately responsible for her care, it was unreasonable for the obstetrician to delegate to and rely upon respirologists to care for his patient's heart problem. It should have been clear to the doctor that the enlarged aorta warranted attention. He could have sought further consultation with a cardiologist but, instead, chose to ignore the problem. The Court found this to be negligent. Specifically, the Court stated:

If this court accepts the defence position that [the obstetrician] is to trust the respirology team absolutely and chart on obstetric issues only, this court would be accepting that [the obstetrician] served no function beyond that of an obstetrician. Respectfully, this court does not accept that. The standard of care of [the obstetrician] is not limited to delegating tasks and responsibilities to experts. [The obstetrician] is not absolved of responsibility with respect to a medical condition simply because that medical problem is beyond the expertise of the obstetrician...the obstetrician is responsible for a plan of care. That plan should address the totality of care, not only obstetric issues.

Nova Scotia has recently passed the Apology Act. This legislation broadly defines an apology and states that it can't be used as evidence in legal proceedings to establish fault or liability.

This is especially important in the context of medical negligence as it permits health care workers to apologize for medical errors and mistakes.

The temptation for doctors and nurses not to report a medical error should not be underestimated. A study in the Journal of the American Medical Association found that only 50% of doctors who admitted making serious clinical errors disclosed their errors to medical colleagues, and only 25% disclosed them to the patients or their families. In another published survey of laypersons in the New England Journal of Medicine found that only a third of respondents who had experienced medical error said that the physicians involved in the error had informed them about it.

The reluctance to disclose their mistakes and medical errors likely stems from a fear being discovered. Negligent doctors and nurses are likely aware of their mistakes and know they should confess but fear the consequences. These reactions are reinforced during medical training, which implies that mistakes are unacceptable.

Interestingly, studies show that if a doctor or hospital apologizes, the less likely the patient will be to advance a claim for medical malpractice. For example, one hospital implemented a process by which patients were not only notified that an error had been committed, but in addition the patient or next of kin was told all the details of the error, including the identities of persons involved in the incident. The hospital offered an apology and expressed the regret of the personnel involved.

This practice proved quite successful. Before the initiation of the policy, the hospital was among the nation's hospitals that paid the most in claims for medical malpractice. After the policy, it became among those that pay the least.

The lawyers at Wagners hope that similar policies get adopted in Nova Scotia, New Brunswick and Prince Edward Island. Too often is medical negligence brushed under the rug for fear of a lawsuit. In fact, studies show that this fear is unfounded. Were doctors and hospital staff to admit their errors and provide patients the details of the incidents, the research suggests that the patients will be less likely to commence a legal proceeding. Retribution will be seen to have been obtained in the form of an apology.

This practice is also encouraged in that it will enable patients to seek prompt, appropriate treatment. When doctors "hide" from their errors and patients are left in the dark about medical error and negligence, the patients' health suffers. They are unable to plan proper follow up treatment.

The passing of the Apology Act is a big step in the right direction. It remains to be seen whether doctors, nurses and hospitals will see the value in issuing the apologies which form the basis of the new legislation. Or whether the old tactics of covering up medical negligence for fear of reprisal will prevail.

Pregnancy is an exciting time for expecting parents. While expecting mothers will typically do all the right things (eating healthy, exercising, etc.), complications still sometimes arise. Fortunately, the majority of these complications are preventable with proper medical care.

Preventing and/or treating birth complications starts with prenatal care. Prenatal care is recommended to all pregnant women because of its potential to improve the health of mothers and infants. According to The Centre for Disease Control and Prevention , inadequate use of prenatal care is associated with increased risk for low infant birth weight, premature births, neonatal mortality, infant mortality, and maternal mortality.

Prenatal care is typically performed by family doctors competent in obstetrics. If the family doctor does not practice obstetrics, an appropriate referral should be made. These doctors should identify possible risk factors and plan treatment accordingly.

During a mother's first visit, a full exam should be undertaken, this can include a series of tests used to detect or anticipate possible complications:

• a complete blood cell count (CBC)
• blood typing and screening for Rh antibodies
• for infections such as syphilis, hepatitis, gonorrhea, chlamydia, and (HIV)
• for evidence of previous exposure to chickenpox, measles, mumps, or rubella
• for cystic fibrosis
• for diabetes

Following this initial visit, even if there are no complications the doctor should schedule regular follow up examinations throughout the pregnancy. After several months the doctor should use an ultrasound as part of the care. This can detect fetal heartbeat or breathing movements and identify a variety of abnormalities that might affect the remainder of the pregnancy or delivery. If appropriately recognized through proper medical care, pre-labour complications can be addressed in a timely manner so minimize the harm to the baby.

During labour, most mothers are monitored regarding the well-being of their baby using external electronic fetal monitoring. These devices are attached to the mother's abdomen. The doctors and nurses are to monitor the fetal heart rate and the frequency and length of contractions. The doctors and nurses are trained to regularly review and interpret the monitoring and be on the lookout for signs of complications. The monitoring will be classified into either of three categories:

1. Reassuring - Based on the monitoring patterns, the baby can be assumed to have normal oxygen and acid base status
2. Non-reassuring - Red flags should be raised. Monitoring patters cannot reliably whether the baby is receiving sufficient oxygen or is acidotic.
3. Ominous - Fetal heart rate patterns should are associated with a dangerously low heart rate.

Where the fetal monitoring is non-reassuring or ominous, doctors and nurses must act. It is negligent not to. Ominous signs require urgent intervention because minutes count during the birth process. The failure to perform a timely c-section can result in a serious birth injury and is considered medical negligence. It is also negligent to fail to give needed oxygen to troubled babies post-birth.

Tragically each year in Nova Scotia, New Brunswick and P.E.I., there are many babies born with preventable serious birth injuries, including:

• Brain injury, such as cerebral palsy
• Muscle tightness, including spastic diplegia
• Brachial plexus injuries, such as erb's palsy
• Paralysis
• Excessive bleeding
• Infections
• Bleeding
• Skull and clavical fractures
• Cranial nerve trauma
• Spinal cord damage

Timely and proper treatment will significantly increase the likelihood that all children will be born healthy. Sadly, such treatment is not always provided and many damaged babies will suffer the consequences. The lawyers at Wagners are the most experienced birth injury lawyers in the Atlantic Provinces. They understand the physical, emotional and financial turmoil that can result from negligent birthing care and have assisted many families in obtaining the financial assistance needed to lessen or eliminate the monetary burden caused by the injuries.

Phenylketonuria ("PKU") is a treatable condition in which a baby is born without the ability to properly break down an amino acid called phenylalanine. This causes levels of the amino acid to build up in the body, which is harmful to the central nervous system and cause brain damage.

Because it's treatable if detected early, doctors routinely screen newborn babies for PKU. The usually screening test is known as a "Guthrie" test. It is important to the baby's health that this test be performed early and that the results are appropriately followed up on.

A recent case shows the tragic consequences which can occur when a doctor performs the testing negligently.

The newborn baby at the center of the case had an initial Guthrie test at two days of age. The lab reported the results as elevated levels of phenylalanine. A second test at seven days of age also showed elevated levels. Under established guidelines, the results were positive for PKU.

The lab results were made known to the baby's family doctor. Rather than starting treatment, the doctor chose to wait until the baby was one month old, at which point he sent him for a third round of testing. This time the lab reported results of "not elevated". The baby's doctor chose to do no further testing.

Three years later, over concerns about his mental development, the infant was assessed by developmental paediatrician for further investigation. The investigation revealed that the infant had classical PKU, the most severe form of the disorder. Unfortunately, because of the long delay in diagnosing the condition, treatment was too late. The family sought compensation for the negligence of the baby's family doctor, who had failed to follow up on the early elevated findings.

After a trial, the judge found that the doctor's treatment had fallen below the standard of care. The judge stated that the first two elevated test results "should have raised a level of suspicion that [the baby] had PKU". The doctor should have done diagnostic testing, instead of ordering a third Guthrie test. The judge found that it was negligent for the doctor to have discharged the baby from further follow-up without a diagnostic test.

The doctor appealed the finding of negligence. He advanced what is known as the "respectable minority principle". This principle holds that where the practice followed by a doctor is adhered to by at least a respectable minority of competent medical practitioners in the same field; it is not for the court to prefer the practice of the majority over that of the respectable minority. The doctor argued that his treatment fell within the "respectable minority". The Court of Appeal rejected this argument.

In a recently released decision, the Court of Appeal also found in favour of the injured child. It did not accept the "respectable minority" argument, stating that the principle"does not absolve a doctor from liability in negligence whenever there is a conflict in the expert evidence led at trial concerning the reasonableness of a doctor's conduct". Instead the Court agreed with the conclusion that that the expert evidence did not establish that the doctor's decision to order a third Guthrie test in the face of two successive borderline elevated phe levels, instead of ordering a diagnostic test, accorded with a practice adopted by a respectable minority of the medical profession. It found no error in the finding that the doctor's actions fell below the standard of care and that, accordingly, he was negligent and liable for his patient's injuries.

This case represents an important ruling for medical patients in Nova Scotia, New Brunswick and P.E.I. who are injured as a result of the negligence of a doctor.