- Causation – Application: The Difficulties Associated with Applying the “But For” Test By Paul McGivern and Lindsay McGivern for the Verdict Issue 168 Spring 2021 – This is the sixth article in our 8 part series on medical malpractice litigation. In this article, we will demonstrate some examples of how the causation principles are applied in medical negligence cases. A commonly arising issue in medical malpractice claims is the speculative analysis that must arise when the negligent act is, in fact, a failure to act. This issue can, for example, be the result of a failure to diagnose, a failure to react promptly to concerning symptoms, a failure to call for help, etc. In such circumstances, the causation question will be, had the defendant properly diagnosed, reacted, called for help, what would have occurred? Since they didn’t perform those acts, what would have happened is, to a certain extent, speculation. In this situation, the courts have adopted a two-part approach to causation.
- Causation – Basic Principles: The Murky Waters of Causation in Medical Negligence By Lindsay McGivern and Paul McGivern for the Verdict, Issue 167, Winter 2020 – This is the fifth article in our 8 part series on medical malpractice litigation. Medical negligence is a particularly complicated area of the law, largely due to the need to establish causation. Motor vehicle accidents may have causation issues arising out of an argument about whether a particular injury was pre-existing or the result of the accident, but primary causation is relatively easy to establish: plaintiff was healthy, plaintiff was hit by a car, plaintiff is now injured. Medical negligence is rarely so clear cut. In this article we explore the complexities of causation in the medical malpractice realm.
- Defenses to a Medical Malpractice Claim – Navigating the Minefield By Andrea Donaldson for the Verdict, Issue 166, Fall 2020 – This is the fourth article in our 8 part series on medical malpractice litigation. Even if a plaintiff has obtained some expert evidence critical of the defendant’s care, this will not necessarily lead to a finding of fault. In this article, Andrea Donaldson reviews a number of common defenses to a claim of that the defendant breached the standard of care, namely that the defendant followed an approved practice, that he or she followed one of two accepted schools of thought, or that he or she exercised his or her clinical judgment. The analyses of the courts as to how these defenses apply help to illustrate why so few medical malpractice cases that go to court are decided in favor of the plaintiff.
- Standard of Care By Brenda Osmond for the Verdict, Issue 165, Summer 2020. This is the third article in our 8 part series on medical malpractice litigation. The law does not expect health care professionals to provide the highest level of care, or to meet a gold standard in providing care. They are expected to exercise the reasonable degree of care that would be expected of a normal, prudent practitioner. In this article, Brenda Osmond reviews how the courts determine that standard, and whether or not there is room for common sense in assessing the standard of care.
- The Evolution of the Law of Informed Consent By Susanne Raab for the Verdict, Issue 164, Spring 2020 – This is the second article in our 8 part series on medical malpractice litigation. Informed consent cases are highly fact-driven and are to be assessed on the basis of what a reasonable person would want to know, informed by any relevant unique circumstances, potential consequences of those risks, and what a reasonable person would have done had they been properly informed. In this article Susanne Raab reviews case law and discusses how different courts’ decisions have led to the evolution of the law of informed consent.
- The Doctor-Patient Relationship and Duty of Care – How Wide Should the Net be Cast? By Andrea Donaldson for the Verdict, Issue 163, Winter 2019 – This is the first article in our 8 part series on medical malpractice litigation. One of the first issues the plaintiff’s counsel must consider before started a medical malpractice action is which health providers owed their client a duty of care. In many cases this issue is straightforward – but there can be special circumstances that can call into question whether a duty exists. In this article, Andrea Donaldson reviews the foundation principles of the duty of care and considers these principles in the context of a number of cases.
- Breach of Fiduciary Duty Claims Against Physicians By Andrea Donaldson for the Verdict, Issue 162, Fall 2019 – Doctors have a duty to act with the utmost loyalty and good faith when dealing with their patients, and must never allow their personal interests to conflict with their professional duty. This duty is called a “fiduciary duty.” In this article Andrea Donaldson reviews a number of infamous lawsuits in which physicians breached this duty, and discusses a recent application of these principles in the case law.
- Informed Consent in the Obstetrical Context: Do Women have a Right to Caesarean Section? By Lindsay McGivern for the Verdict, Issue 161, Summer 2019 – It is recognized that patients have a right to make informed decisions about their medical care. Yet somehow, when it comes to the deciding between a vaginal birth and a caesarean section, in the past it has been acceptable for a physician to refuse a patient’s request if it was not, in the doctor’s opinion, medically necessary. Lindsay McGivern reviews recent policy developments that acknowledge that a woman’s preferences should be taken into consideration.
- Can Science Address the Credibility Conundrum of Chronic Pain? By Brenda Osmond for the Verdict, Issue 160, Spring 2019 – Chronic pain is part of many personal injury, motor vehicle, and medical malpractice claims. Since chronic pain is something that can’t be seen or measured, it can be difficult for the courts to understand the severity of the pain, or the impact it can have on a plaintiff’s day-to-day functioning. Do recent advances in neuro-imaging such as functional MRI (fMRI) offer potential solutions to these challenges? In this paper, I will review developments in neuro-imaging and their applicability in negligence claims.
- What are a Physician’s Legal and Ethical Obligations to your Injured Client? By Susanne Raab for the Verdict, Issue 159, Winter 2019 – If a person develops a serious illness or is injured in an accident, they will depend on their family physician not only to provide medical care, but also to assist in obtaining employment accommodations, insurance benefits or third-party compensation. Physicians have legal and ethical duties in these circumstances. In this article, Susanne Raab describes a physician’s duties in this medical-legal environment.
- The Role of Genetics in Birth Injury Claims By Andrea Donaldson and Paul McGivern for the Verdict, Issue 158, Fall 2018 – Will the science of genetics play a greater role in birth injury lawsuits in the future? As the science of genetics continues to advance, it is sometimes suggested that a child’s birth injury may be caused by genetic abnormalities rather than any difficulties encountered during labour. In this article, Andrea and Paul examine the current medical understanding of the role of genetics in neurodevelopmental disorders such as cerebral palsy, and how Canadian courts have approached the defence of genetic predisposition in birth injury claims.
- Causation in Medical Malpractice Actions By Lindsay McGivern for the Verdict, Issue 157, Summer 2018 – To win a medical malpractice law suit the plaintiff must prove two things: that the health care providers did not meet the standard of care expected of them, and that the failure to meet the standard of care is what caused the plaintiff’s injuries. This second element is called “causation.” Causation is often the more difficult hurdle for the plaintiff to meet. In the following article, Lindsay McGivern provides a description of how the courts view causation in complex medical malpractice claims.
- The question of medical negligence in British Columbia’s Cambridge affair By Susanne Raab for The Lawyers Daily – In the fall of 2017, the Cambridge physicians’ medical licences were cancelled on the basis that they had failed to meet the requirements for continued registration and licensure. Specifically, they had failed to pass the first of two required examinations designed to evaluate the physicians’ skills and medical knowledge, notwithstanding several failed attempts and several deadline extensions required for personal reasons.
- B.C. College of Physicians and Surgeons protects public by delisting uncertified doctors By Susanne Raab for The Lawyers Daily – From 2011 to 2017, Drs. Sean and Rosemarie Cambridge, two foreign-trained physicians, provided medical care to hundreds of patients in Chilliwack, B.C., under a provisional medical licence issued by the College of Physicians and Surgeons of B.C. During this period of time, the government paid the Cambridge physicians millions of dollars in fees, according to B.C.’s Medical Service Plan (MSP) billing records. In the fall of 2017, the Cambridge physicians’ medical licences were cancelled on the basis that they had failed to meet the requirements for continued registration and licensure.
- Electronic Medical Records – Behind the Screen By Brenda Osmond & Bob Kucheran for the Verdict, Issue 156, Spring 2018 – Although paper medical records still exist, more and more clinics, offices and hospitals are moving to electronic records. These electronic records in some cases are nothing more than digitized versions of what would normally appear in a patient’s paper chart. In other cases, information from monitors such as blood pressure monitors or heart monitors may be recorded digitally and stored centrally in a database for the institution. The following article discusses some of the issues associated with electronic medical records, including the use of audit trails and access logs to understand who has reviewed a record, and if changes were made to the record.
- The Financial Burden of Medical Malpractice Lawsuits By Lindsay McGivern & Paul McGivern for the Verdict, Issue 155, Winter 2018
- Mental Injuries – The Mustapha Framework By Andrea Donaldson for BarTalk, February 2018 – In order to succeed in a claim for mental injury due to negligence, a plaintiff must prove that the defendant breached the standard of care owed to the plaintiff, that the plaintiff sustained damage, and that the damage was caused by the defendant’s negligence. In this article, Andrea discusses a recent Supreme Court of Canada finding that a diagnosed psychiatric illness is not necessary to prove a mental injury claim.
- Adverse Inference – Failure to call a Physician By Andrea Donaldson and Susanne Raab for the Verdict, Issue 154, Fall 2017 – The law of adverse inference allows a court to presume that a court has not called a certain witness because that witness would not have helped the party’s case. In medical malpractice cases, an adverse inference is often sought against a plaintiff who fails to call his or her treating physician as a witness. This article discusses the factors a court will consider in determining whether to draw an adverse inference against a plaintiff in these circumstances.
- Swirski Interviews By Lindsay McGivern for the Verdict, Issue 152, Spring 2017
- Failure to Mitigate By Brenda Osmond & Bob Kucheran for the Verdict, Issue 153, Summer 2017 – In tort actions a plaintiff who has suffered a loss due to negligence has a “duty to mitigate” the loss; the plaintiff cannot recover from the defendant damages which he could have avoided by taking reasonable steps.
- Contributory Negligence in Medical Malpractice Cases By Brenda Osmond & Bob Kucheran for the Verdict, Issue 151, Winter 2017 – Medical malpractice cases sometimes involve deeply personal issues involving the plaintiff’s behaviours and beliefs. As advocates it can be easy to downplay or even entirely overlook the client’s responsibility to protect themselves from harm. When you first meet a potential client and consider both the likelihood of success and the potential compensation for damages suffered, you must consider the potential for a contributory negligence defence, which can have a significant impact on the outcome of your case.
- Does the Standard of Care Require a “Worst is First” Approach to Diagnosis? By Natalia Ivolgina for the Verdict, Issue 150, Fall 2016 – Often medical malpractice lawsuits allege negligence related to making a diagnosis. Is the physician obliged to rule out the most urgent and life-threatening conditions, even if they are statistically unlikely, before arriving at more common and benign diagnosis? In this article Natalia reviews how two recent BC cases have approached this issue.
- The Effective Use of Medical Literature By Lindsay McGivern & Susanne Raab for the Verdict, Issue 149, Summer 2016 – Medical literature can be used in medical malpractice litigation to build your case or undermine your opponent’s case. This article explores both the strategy and procedures necessary to get the most out of the use of medical literature.
- When Motor Vehicle Accidents and Medical Negligence Collide – Novus Actus Interveniens By Brenda Osmond & Natalia Ivolgina, for the Verdict, Issue 146, Fall 2015 – This article discusses the defence of novus actus interveniens in the context of a health care provider as the intervening actor, and review a number of cases in which defendants have attempted to avoid liability through its use.
- Summary Trials in Medical Malpractice Actions By Andrea Donaldson & Lindsay McGivern for the Verdict, Issue 147, Winter 2016 – Summary trials have been supported by Canadian courts as a way to achieve timely and affordable access to the justice system. Unfortunately, they have been used almost exclusively by the defence in medical malpractice cases. In this article, we will discuss summary trial applications in the context of a medical malpractice action, review a number of cases where summary trial applications have succeeded and where they have not, and examine the impact of a recent Supreme Court of Canada decision.
- Do ties always go to the defence? By Paul McGivern & Lindsay McGivern for Lawyers Weekly, February 6, 2015 – In personal injury cases it is extremely rare for a court to find that the evidence on both sides of a case is truly evenly balanced. While a “tie” must always go to the defence, a true “tie” is unusual. This article will canvass the law related to the burden of proof, and how plaintiff’s counsel can prepare their case to ensure that the case is adjudicated on its merits, rather than on a technical determination of the burden of proof.
- Establishing or Challenging the Standard of Care in the Medical Malpractice Context By Brenda Osmond & Paul McGivern for the Verdict, Issue 143, Winter 2015 – In order to succeed in a medical malpractice case, a plaintiff must prove that the defendant breached the standard of care, that the plaintiff suffered an injury or loss, and that the negligence identified was the cause of the injury or loss. This article will review the law with respect to the standard of care and will provide some tips for counsel regarding how to establish or challenge an existing standard of care.
- Risk and consequences – Supreme Court shapes law on informed consent, scope of disclosureBy Paul McGivern & Natalia Ivolgina for The Lawyers Weekly, November 22, 2013 – In 2013 the Supreme Court of Canada considered the law on informed consent in two landmark decisions: Ediger v. Johnston [2013] S.C.J. No. 18, and Cojocaru v. British Columbia Women’s Hospital and Health Centre [2013] S.C.J. No. 30. This paper will discuss two often overlooked aspects of the law of informed consent – the physician’s obligation to explain the implications should a risk materialize, and the need for the plaintiff to prove “double causation” in consent cases.
- Medical Errors: Physician’s Duty To Tell The Truth – The Whole Truth By Susanne Raab, for the Verdict, Issue 141, Summer 2014 – Medical errors are not uncommon. They occur far more frequently than most people realize. This article will examine the physician’s duty to disclose medical errors when they occur, and the consequences of a physician’s failure to make adequate disclosure.
- Michael Bortolotto: A Rebel with a Cause By Susanne Raab, for the Business Examiner, October 2014 – Every now and then one encounters an individual who redefines the boundaries of what is possible. I had this opportunity recently when I sat down with Michael Bortolotto, a successful entrepreneur, public speaker, husband, father and individual living with cerebral palsy.
- Proving Causation in Birth Trauma Cases: Navigating the Twilight Zone Between Factual and Legal Causation By Natalia Ivolgina & Paul McGivern for the Verdict, Issue 136, Spring 2013 – The Canadian Medical Protective Association is the primary insurer for Canadian physicians faced with medical malpractice lawsuits. The Association’s 2011 Annual Report indicates that out of 894 civil action cases closed that year, 293 settled out of court (approximately one-third). Of the legal actions that proceeded to trial, 13 judgments were rendered for the plaintiff (patient) and 55 for the defendant (doctor). According to Professor Russell Brown most plaintiffs fail in medical negligence cases because they are unable to prove that the medical professional’s negligence caused the plaintiff’s injury. As this paper will examine, this is especially true in birth trauma cases, where proving causation is often the most trying and costly part of the case.
- Informed Consent: How to Tip the Balance in Favour of your Client By Susanne Raab for the Verdict, Issue 137, Summer 2013 – A review of the case law in British Columbia over the last decade reveals that while courts have adopted a less paternalistic and more “patient-centered” approach to informed consent, these cases continue to fail on the causation branch of the analysis. This paper will discuss why these cases continue to fail, and what counsel can do to tip the balance in favour of their clients.
- Hospitalists – The Evolving Model of Hospital Care By Linda Wong, Brenda Osmond & Natalia Ivolgina for the Verdict, Issue 136, Spring 2013 – In the 20th century a patient’s hospital care was overseen daily by a dedicated family doctor who heralded the arrival at birth and pronounced passing at death. Today this traditional model of hospital care is fading. This paper will focus on this change as it raises new issues that are almost certain to be litigated in future medical negligence cases.