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.

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.

Patients who are harmed by doctors or hospital staff usually are unaware that the harm resulted from negligence. Medical negligence is often far from their mind in such a situation. Recent data suggests that it should not be.

Recent data contained in a series of two reports from the Organization for Economic Co-operation and Development has shed light on how Canada compares to other nations with respect to the various aspects concerning health care. The results are troubling but not surprising.

While in some aspects Canada does very well and ranks quite highly in terms of health care, the authors of the reports observed and noted Canada's health care system shows alarmingly high rates of hospital errors. It the reports found this errors to be very concerning.

Although Canada is ranked quite high in breast cancer survival rates and also has a good record of preventable hospital stays when it comes to complications arising from asthma as well diabetes episodes, the Organization for Economic Co-operation and Development, which comprises 34 member nations, found that residents of Canada tend to be subjected to higher rates of hospital mistakes, unfavourable events, and sadly birth traumas which occur during delivery.

Another disturbing trend in Canada has to do with surgical procedures and foreign objects remaining in individuals who have had surgery. While any object left in a person after surgery is a significant occurrence, the higher rates may reflect on Canada's diligent process in collecting data related to hospital errors, the OECD report notes.

The OECD report also found in a survey of 11 countries, that Canada had the longest wait times for patients attempting to see medical specialists or to undergo elective surgeries.

The Canadian Institute for Health Information has reviewed the OECD data and has found that these multi-country comparisons are quite useful in assisting in the identification of the various shortcomings in Canada's health-care system.

In 2009, Canada spent just over 11% of its GDP on health, more than the average of all countries included in the OECD report. Per person spending was also more than the OECD average.

Hopefully these studies will provide an incentive for further studies aimed at identifying why Canada's hospital's show these troubling high rates of error. Why does Canada, a relatively prosperous nation with a purported first class health care system, continue to show such high hospital error rates? This important question needs to be addressed so that doctors and hospitals can take the necessary steps to keep their patients safe.

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.

Compartment syndrome is one of the most common complications associated with arm and leg fractures. It results in tissue death from lack of oxygenation. If not properly guarded against, compartment syndrome can result in blood vessels being compressed by the raised pressure within the compartment. Unless it is recognized and treated at an early stage, it can have very serious and permanent consequences. Doctors and nurses responsible for treating patients suffering fractures must be on the lookout for the signs and symptoms of compartment syndrome. Failure to do so is below the standard of care. If compartment syndrome is suspected, doctors must act immediately because waiting can result in grave injuries.

Following a bicycle accident, a five year old child was treated in a Halifax hospital for his arm fracture. The surgery went well. However, in the days that followed, he began to experience increases in pain, pins and needles, and numbness. His fingers became increasingly more swollen. These are signs of the onset of compartment syndrome. Unfortunately, the doctor in charge of his care did not respond in the urgent fashion required. It took three days for nurses and doctors to finally intervene but it was too late. The young boy had suffered irreparable tissue damage to his arm. He grew up with a claw-like, deformed limb and will suffer with functional limitations for the rest of his life.
He brought a law suit against the hospital and his doctor, for failing to recognize and treat the obvious onset of compartment syndrome. The case went to a trial and was heard before a jury. In a civil trial, an injured victim has the burden of proving negligence "on the balance of probabilities". In this case, the jury ought to have asked whether it was "more likely than not" that the boy's doctor was negligent. Unlike criminal trials, the law does not require plaintiffs to prove their case "beyond a reasonable doubt".

Numerous experts testified over a two week period. After this time, before entering into their deliberations, the judge instructed the jury on the burden of proof. On numerous occasions he stated, "if you are in a state of doubt, the plaintiff has not met his burden". Following this instruction, jury was asked to deliberate. After two days of deliberation, they returned with a split verdict. They found that the injured boy had not met his burden.
The lawyers at Wagners appealed the jury charge to the Nova Scotia Court of Appeal. They argued that the boy did not get a fair trial because the jury was instructed on the law in a manner that was fundamentally incorrect. The jury was lead to believe that if there was any doubt, they had to find against the injured boy. The Court of Appeal unanimously agreed that the trial judge had erred. The Court of Appeal found that the case had not been fairly put to the jury. The error in the instruction meant that "there is a very serious likelihood that the jury would have been confused and would have misapprehended the correct standard of proof based on the instructions given to them".

The Court of Appeal found that the Wagners lawyers were correct. The unanimous decision concluded: "there is a serious risk the charge has left the jury with a misapprehension of the proper legal principles to apply in deciding proof, a substantial wrong arises and the appropriate remedy is a new trial".

Sometimes victims injured as a result of someone's negligence will have their claims assessed at trial. It is critical to achieving justice that they receive fair trials. This can only be accomplished if the correct burden of proof is applied. This case successfully argued by the experienced lawyers at Wagners sets a strong precedent that will help ensure that injured victims are treated fairly by the justice system.