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Medical Malpractice

Reports to Nova Scotia Medical Error Registry Increase in 2015

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In the second year of its operation, the Nova Scotia Medical Error Registry had recorded an increase in reported errors from 77 in 2014, to 128 in 2015, according to numbers released in the province’s Serious Reportable Events database. That increase may not reflect an increase in errors, but rather a shift in practice, as the reporting of errors becomes part of the culture of improving health care.

Nova Scotia has been tracking medical errors in their hospitals since January 2014. The medical errors that must be reported are serious reportable events, which are defined as an adverse health event which results in serious disability or death and includes but is not limited to the actual or potential loss of life, limb or function related to a health care service.

In 26 of the 205 events reported since the inception of the program, patients suffered death or disability due to a misdiagnosis or an unspecified care management problem.

At Pacific Medical Law we often hear from people who have experienced a delay in the diagnosis of a serious medical condition that leads to life-long disability. For example, the misdiagnosis or delayed diagnosis of a spinal epidural abscess causing a spinal cord injury can result in a life spent in a wheelchair. Although it is not always possible to identify negligence in each of these cases, we have been able to help many clients obtain compensation for these injuries.

Read the full Nova Scotia Medical Error Registry story here:

http://www.cbc.ca/news/canada/nova-scotia/nova-scotia-medical-event-database-1.3461082

See the Nova Scotia data from 2014 to 2015 here:

http://novascotia.ca/dhw/hsq/serious-reportable-events.asp

What is my misery worth? Compensation for Pain and Suffering in Canada

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More than 90% of the callers to our office are motivated by the fact that they have had to endure a great deal of pain and suffering as a result of what they believe was medical negligence. Within minutes of our conversation however, virtually all of those callers are disappointed to learn that in Canada, even with catastrophic injuries, the maximum amount that our courts will award for their misery is considerably less than they expect. So why are the awards for pain and suffering so low?

These sorts of awards are referred to as nonpecuniary damages[1] and it is no accident that they are low in Canada; it is in fact the result of deliberate decisions made by the Supreme Court of Canada. In a trilogy of cases in 1978[2], the Court addressed the issue of compensation for pain, disability and loss of quality and enjoyment of life, grappling with the reality that no amount of money can return a plaintiff to their previous state of good health and that it is difficult to come up with an objective method to measure the impact of a person’s loss. The problem that faced the Court was that the basic legal premise for awarding compensation for the damages was to restore the harmed person to the position they would have been in prior to the negligence of the defendant. The difficulty in awarding damages for nonpecuniary losses is that those losses are both difficult to measure and, often, impossible to adequately compensate. The Court held that extremely high awards for general damages would place an undue burden on society in terms of increasing insurance premiums and the social costs that can go along with that. As a result, the Supreme Court set a maximum of $100,000 for nonpecuniary damages. That number was tied to inflation so the maximum is now about $365,000, which is only available for catastrophic injuries, for example if a healthy and active person becomes paraplegic or quadriplegic, or suffers severe brain damage due to negligence. As a result, while it is not unusual for Pacific Medical Law to achieve settlements for our clients of several million dollars, these awards are primarily to compensate them for their lifelong cost of care, as well as loss of income arising from this injuries.

The Court came to their conclusion as a matter of public policy and noted that the primary concern when awarding compensation is to assure that the injured party has adequate care in the future. Given that such costs as the cost for care or income loss were not capped, the Court was concerned about the social burden of large non-pecuniary awards, recognizing that no amount of money can give back what was lost:

“The sheer fact is that there is no objective yardstick for translating non-pecuniary losses, such as pain and suffering and loss of amenities, into monetary terms. …

… There is no medium of exchange for happiness. There is no market for expectation of life. The monetary evaluation of non-pecuniary losses is a philosophical and policy exercise more than a legal or logical one. The award must be fair and reasonable, fairness being gauged by earlier decisions; but the award must also of necessity be arbitrary or conventional. No money can provide true restitution.”

So then, why are our expectations so far out of line? There really is no mystery here; almost all Canadians are exposed to a flood of American news stories many of which include reference to multi-million dollar awards for what seem to be the most innocuous degrees of pain and suffering. For instance, while our maximum for nonpecuniary damages is $365,000 today, in 2011, New York’s appellate courts awarded amounts of at least 10 times that amount (US$3,500,000) for pain and suffering in 10 cases[3]. But, even more interesting is the fact that a number of American states are enacting legislation to change all of that by putting limits on awards for pain and suffering. For example, New Hampshire has a limit of US$875,000 while the limit is US$350,000 in Maryland. In fact, Ohio, Idaho and California have capped pain and suffering damages at US$250,000[4]. All of which begs the question; was the Supreme Court of Canada actually ahead of its time?

[1] Non-pecuniary damages are damages, commonly called “pain and suffering” and also referred to “loss of enjoyment of life” or “general damages”, are an assessment of how much money is suitable to compensate for losses that cannot be more accurately calculated such as income or medical expenses.

[2] Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229, the claimant was a 21 year-old young man who was rendered quadriplegic as a result of a traffic accident.

Arnold v. Teno, [1978] 2 S.C.R. 287, the plaintiff was a 4½ year-old girl who suffered severe brain injuries when she was hit by a car while she was enjoying an ice cream cone, new-bought from a curb-side vendor truck.

Thornton v. School Dist. No. 57 (Prince George), [1978] 2 S.C.R. 267, the plaintiff was 18 year-old lad who was rendered a quadriplegic from an accident during a physical education class.

[3] New York Injury Cases Blog, <http://www.newyorkinjurycasesblog.com/2012/01/articles/amputation-injuries/review-of-the-10-largest-pain-and-suffering-awards-approved-by-new-yorks-appellate-courts-in-2011>

[4] http://www.nolo.com/legal-encyclopedia/state-state-medical-malpractice-damages-caps.html

Missed or Delayed Diagnosis of Bacterial Meningitis Worsens Patient Outcomes

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Prompt diagnosis of bacterial meningitis infection is crucial for best treatment outcomes. Death rates from bacterial meningitis are around 10% with up to 1/3 of survivors suffering long-term serious neurological complications. If diagnosed and treated early, most people recover well.

Because the symptoms of meningitis are similar to flu and other viral infections, some physicians may miss the diagnosis and not treat the infection in a timely manner. In some cases where a diagnosis of bacterial meningitis was missed and poor treatment outcomes followed, there may be compensation available to the injured patient.

Meningitis is a life-threatening condition with initial symptoms similar to flu

Acute bacterial meningitis is an infection of the tissues around the brain and/or the spinal cord which causes these tissues to swell. It can result in paralysis, brain damage or death if treatment is not started early. Bacterial meningitis is a serious condition requiring immediate medical attention and treatment. Unfortunately, the symptoms which accompany bacterial meningitis often closely resemble common flu. In both conditions, a person will often suddenly develop high fever, start vomiting and will experience headaches and loss of appetite. Physicians assessing patients who present with these symptoms may rely on the simple fact that common things happen more commonly and fail to consider more serious but unlikely causes of the patient’s symptoms and take steps to test for bacterial meningitis.

Young children and adults with weak immune systems are at a higher risk

Bacterial meningitis can happen to anyone; however, children under 2 years of age are particularly vulnerable to bacterial meningitis. This is because young children’s immune systems are not fully developed yet. Children who do not receive a complete set of vaccinations are even at a higher risk. Pregnant women are at a higher risk of being affected due to their increased risk of contracting listeria bacteria which may cause meningitis. People with compromised immune systems are at increased risk of bacterial meningitis as well. In rare cases, bacteria may be accidentally introduced into the patient’s body during surgery and spread to the spinal cord or the brain, causing bacterial meningitis.

Medical malpractice for missed or delayed diagnosis of meningitis

When a diagnosis of meningitis is missed or delayed and serious complications such as brain damage ensue, injured patients and their families face high costs of care and loss of income. Several cases have successfully been brought against physicians across Canada for failing to consider bacterial meningitis as a potential cause of their patients’ symptoms and initiating prompt treatment. If you or your loved one suffered an injury as a result of the delayed diagnosis of bacterial meningitis, do not hesitate to contact us for a consultation as to whether or not you have a viable malpractice case.

Four Reasons Why Awards are Less in Canada than the USA

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A Canadian courtroom never looks like the American television courtroom. Heated courtroom battles where lawyers dressed in business suits yell at each other using theatrical outbursts to persuade the jury and breathless investigators run into the courtroom at the 11th hour with a newly discovered piece of evidence, culminating in the court ordering a multi-million dollar medical malpractice award for the plaintiff – that doesn’t happen in Canada. Of course some of this excitement is purely tv-land drama, but some of it can be explained by the differences in our legal systems.

While there are many differences between the Canadian and American legal systems, a few of these differences contribute directly to the lower compensation a plaintiff can expect to receive for medical malpractice cases in Canada. This is true even if the negligence is caused by doctors’ mistakes or nurses’ mistakes. Here are some of those differences:

  1. Lower awards for pain and suffering in Canada – In 1978 the Supreme Court of Canada put an inflation-adjusted cap on how much a plaintiff can be compensated for the pain and suffering caused by a negligent defendant. In 2015, the most compensation that can be awarded for pain and suffering in Canada, no matter how catastrophic the injury, is about $350,000. Compare that to New York State alone where in 2011, 10 cases were awarded more than $3,500,000 for pain and suffering. Many US states are starting to put limits on claims for pain and suffering, and some of those limits are even lower than the Canadian cap. Nonetheless, there continues to be large awards available in a number of US jurisdictions.
  2. Socialized medicine lowers plaintiffs’ future costs – Plaintiffs can be awarded compensation for health care costs they will have to pay for themselves in the future. In Canada, defendants do not pay the plaintiff for provincially-funded health care, such as hospital in-patient care or physician appointments. In the United States, since an injured plaintiff may have to pay for future hospitalizations out of their own pocket, defendants can be required to compensate for those costs as well – this can amount to tens of millions of dollars.
  3. Jury awards are smaller in Canada – When judges decide how much a successful plaintiff should be awarded they must explain their decision in detailed written reasons. They are bound by the evidence presented and by decisions made in previous cases. Juries, on the other hand, do not write reasons to explain their findings. A sympathetic jury can award extremely high awards. Canadian juries tend to be much more conservative than their US counterparts, in part because the money to pay the awards often comes from tax funded programs such as ICBC, or hospitals. Large awards are viewed by some Canadian juries as coming out of their pockets as taxpayers. In addition, Canadian jury awards can be appealed if they are inordinately high and fall well outside the range of damages a judge would award.
  4. Punitive damages are less common in Canada – Our tort law system is aimed at compensating victims of negligence, not punishing the defendants. The compensation is intended to put the plaintiff back in the condition they would have been in if the negligence had not occurred – to the extent that is possible. In Canada, punitive damages are much less common than they are in the USA – in fact in medical malpractice lawsuits punitive damages are exceedingly rare.

People who have been injured by the negligence of a doctor, nurse or other health care professional can expect to be fairly compensated in Canada, and although the compensation awarded here is more modest than in the US, it can still provide some measure of comfort and assistance as people try to move forward with their lives after an injury caused by medical malpractice.

Hospital acquired infections – a new era in germ warfare

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In our practice, we get a number of calls from people who have suffered injuries due to infections contracted during their hospital stay. Studies have shown that more than 220,000 Canadians develop infections during a hospital stay each year and, on average, these infections kill 22 patients each day – more than leukemia and breast cancer combined.

In an attempt to combat this issue, scientists are developing new antibiotics, hospitals are redesigning wards to have more single-patient rooms to reduce the spread of infections, and companies are developing new technologies to wipe out bacteria. However, one of the simplest ways to combat infections in hospitals may be one of the most effective.

Hospital Cleaners are the Gatekeepers

A recent Globe and Mail article identified hospital cleaners as gatekeepers in preventing the spread of infectious bacteria. This is becoming more of an issue as worldwide concern grows over the pervasiveness of hospital-acquired infection, and the threat of antibiotic resistance looms.

Hospitals represent an ideal environment for “superbugs” – bacteria that are resistant to antibiotics – to thrive, due to high antibiotic use and invasive medical procedures being performed on patients with weakened defenses. Where antibiotics are used unnecessarily, they kill some bacteria, but produce an ideal breeding ground for resistant strains to multiply and spread. If every surface is not completely disinfected with industrial strength chemicals, an outbreak of drug-resistant bacteria can occur, killing vulnerable patients in its path.

Infection control experts warn that Canada is not doing enough to control the issue of hospital infections and the threat of superbugs, and that national monitoring of hospital-acquired infections is badly underfunded. Adding to the problem is the fact that health is a provincial responsibility in Canada, leading to an uncoordinated response to the issue of antibiotic resistance.

Unfortunately, despite the essential role that hospital housekeepers play in combatting infection, cleaners are an easy target for cuts when health care budgets are tight and demands on hospitals greater than ever. In British Columbia, hospital cleaning was privatized over a decade ago, and hospitals across the country are increasingly following suit – a trend that has a number of negative consequences. A 2008 report by the Hospital Employees’ Union of BC found that privatization of this service led to increased staff turnover and dramatically reduced the time cleaners spent at health care facilities.

Whatever problems hospitals may face regarding infection control, the law demands that reasonable care be taken to protect patients from harm while they are in the hospital, and to recognize infections and provide prompt and appropriate treatment. Patients who suffer harm due to a failure to prevent, or detect and treat, hospital-acquired infections have the right to compensation. The courts will only award this compensation if it can be proven that the appropriate standards were not followed and that if the standards had been followed, the harm would not have occurred.

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