Adverse Events and Medical Malpractice
The first Canadian study to examine the statistical occurrence of adverse events in acute care hospitals was reported in 2004 and led by Dr. Ross Baker.1 In that groundbreaking report, an adverse event was defined as an unintended injury or complication caused by health care management, rather than by the patient’s underlying disease, and one that led to death, disability at the time of discharge, or prolonged hospital stays. According to the analysis, in the fiscal year 2000, 7.5% of patients admitted to acute care hospitals in Canada experienced one or more adverse events. Of these occurrences, 36.9% were highly preventable; 5.2% resulted in permanent disability; and 15.9% resulted in death. Extrapolating from this data, it is estimated that between 141,250 and 232,250 of the 2.5 million similar admissions to acute care hospitals in Canada were associated with an adverse event in the year 2000.
Approximately 10 years after Baker’s study, Susan McIver and Robin Wyndham published their book After the Error: Speaking Out About Patient Safety to Save Lives (After the Error), which provided a new estimate on the number of Canadians affected by medical malpractice. Based on their assessment, McIver and Wyndham determined that between 38,000 and 43,000 Canadians die each year because of medical errors. On this basis, more than 100,000 lawsuits could theoretically be initiated in Canada based on the statistical occurrence of medical errors. In reality, between 2005 and 2010, only 4,524 lawsuits were brought against Canadian physicians. Of these lawsuits, 3,089 were abandoned when “the court dismissed the claim, or the victim or the victim’s family quit, ran out of money, or died before trial”; of these “only 2 per cent resulted in trial verdicts for the victim.”2
Why are so few medical malpractice lawsuits initiated in Canada? Of the few that materialize, why do so many end unsuccessfully? It is clear that injured patients face a challenging road to compensation; medical malpractice is perhaps the most complex field of personal injury law. Physicians are well-protected by the Canadian Medical Protective Association (CMPA) while hospitals and staff are also vigorously defended by the Healthcare Insurance Reciprocal of Canada (HIROC). In this article, we look at some areas of medical malpractices and the complex injuries that can arise; discuss the challenges inherent to the prosecution of these claims; and consider the opportunities to streamline the legal system so that injured patients have access to justice.
Common Types of Medical Malpractice
Every physician and member of medical staff is responsible for providing care that meets an accepted standard, while hospitals are responsible for ensuring that their staff is competent, aware, and performing the expected duties. Medical malpractice can occur when a health professional breaches the standard of care that another similarly qualified professional would reasonably have provided. Depending on the error, there may be life-changing consequences for the patient. In order to make out a case in medical negligence, the plaintiff must be able to prove not only that the standard of care was breached, but that the breach (or breaches) caused or contributed to his or her injury.
While medical errors can occur in practically any context, it is also important to recognize that not all adverse outcomes can be attributed to medical errors. In order to evaluate the merits of taking legal action, the threshold questions regarding standard of care and causality require a thorough investigation. At the outset of a medical malpractice investigation, lawyers should conduct a full review of the relevant medical records; contact the necessary experts; and evaluate whether the compensable damages warrant potential legal action.
To understand the full potential of a medical-legal case, it is also important to have a grasp of the underlying science. Some of the more common areas of medical malpractice — obstetrical, surgical, and hospital-based — tend to be among the most medically complicated. We have provided a brief outline of each of these areas, below, to help demonstrate the importance of understanding the inherent complexities at the forefront.
a) Obstetrical Negligence
Obstetrical negligence typically refers to injury sustained by an infant either before, during, or after delivery. Some common injuries are hypoxic-ischemic encephalopathy (HIE), perinatal stroke, or injury to the brachial plexus. In light of the often grim prognosis associated with these types of injuries, evaluating the potential merit of legal action requires a rigorous investigation that includes retaining sometimes several well-qualified experts, reviewing the full medical record including the antenatal care, and understanding the basic medicine to develop the theory of the case.
HIE generally refers to brain damage caused by the deprivation of oxygen. Depending on the severity of the HIE, the infant may suffer from developmental or cognitive delays, motor impairment, and potentially ongoing seizures. It is thought that approximately 9% of Cerebral Palsy cases may be related to asphyxia caused during birth.3 While a review of the medical record should indicate a diagnosis of HIE, the etiology of the brain injury may not be obvious. Like all injuries, an HIE diagnosis does not itself indicate that a medical error occurred. All radiology imaging should be requested at the beginning of an investigation in order to be reviewed by an appropriate expert at the outset.
Perinatal stroke refers to an acute neurologic syndrome caused by cerebral injury that may occur between 20 weeks of gestation and approximately one month of postnatal life. In order to evaluate the cause of stroke, the timing of the condition and the subtype of the stroke are important factors to decipher. It is generally accepted that ischemic strokes can be caused by birth-related trauma, sepsis, other hypoxic-ischemic events, and blood loss. While clinical and radiologic features must be verified to classify the stroke and to consider the cause, there may be instances where classification or cause cannot be determined. Given this highly specialized area of medicine, retaining an appropriate expert to review the case is extremely important.
The brachial plexus refers to a network of nerves that originate from the cervical and upper thoracic area, and end at the shoulder and arm. While the mechanism of injury may vary, birth-related trauma caused by stretching or the application of excessive force is a possible cause of injury. Many brachial plexus injuries occur in the presence of shoulder dystocia: An obstetric emergency where traction and maneuvering is required to enable delivery of the fetal shoulders after the fetal head is already delivered. These types of injuries may result in full or partial paralysis and abnormal muscle contractions. These cases can be difficult to investigate from a standard of care perspective, given that it may be difficult to contest an individual physician’s exercise of clinical judgment, particularly in the context of an emergency delivery.
b) Surgical Negligence
All medicine, including and perhaps especially surgery, requires the exercise of clinical judgment. The courts have held that the proper exercise of clinical judgment requires weighing, assessing, and evaluating the available information.4 A common defence to allegations of negligence is that while the practitioner may have made an error in judgment, the error itself does not amount to negligence because deference must be given to practitioners to exercise judgment based on the particular clinical situation that is presented. This defence should only be accepted if the physician’s error was made while otherwise exercising reasonable care.5
Most surgeries also include known risks. The fact that injury occurred because of a known risk does not automatically preclude a patient from seeking legal recourse. In administering any type of treatment, a physician owes a duty to exercise diligence, care, knowledge, skill, and caution.6 If a particular risk materializes because of improper skill or failure to take reasonable precautions in response to that risk, a physician or healthcare practitioner is not shielded from liability simply because the risk was known or discussed.
Surgical errors can occur at any stage of the preoperative, intraoperative, and postoperative period. Some common injuries resulting from surgical or postsurgical errors may include cardiorespiratory arrest, paralysis, anastomotic leaks, bowel obstructions, shunt complications, and injuries to major blood vessels or vital organs. As with other areas of medical negligence, the proper evaluation as to whether an error caused or contributed to the patient’s injury requires a thorough and detailed review of the medical records and a medical expert with experience performing the surgical procedure in question.
c) Hospital-based Negligence
According to some estimates, upwards of 80% of all medical errors occur within a hospital setting.7 There is also considerable literature to suggest that most of these errors relate to underlying systemic factors. In other words, hospital errors often occur within a team-based and institutional approach to the delivery of care. Although individual health practitioners interact directly with patients, they also interact with one another — as well as with regulators, administrators, and policy-makers — in order to provision care. Common errors that can lead to patient injury including failures to communicate or failures to utilize hospital systems properly, which can cause a delay in diagnosis or misdiagnosis.
In Canada, the prosecution of team-based or cumulative negligence has been fraught with difficulty, including confusion surrounding the law of causation. It is clear, however, that injured patients should not be left without recourse in situations where there are multiple defendants and one defendant’s negligence in isolation may not be necessary or sufficient to bring about the harm, but may be necessary in conjunction with the conduct of others. These situations require the application of a robust and pragmatic approach to the causation inquiry, which requires first determining what happened in actuality, what would likely have happened had the defendant not breached the standard of care, and then to allocate fault among the negligent defendants.
Key Challenges to Prosecuting Medical Malpractice Claims
In reviewing the above forms of medical negligence, it appears that at least part of the difficulty in prosecuting these claims is the complexity of each case. Most medical legal investigations involve reviewing thousands of pages of clinical information, attempting to decipher the involvement of dozens of healthcare practitioners, and of course retaining the most appropriate and qualified experts — all tasks that should be addressed well before a limitation period expires. Depending on an evaluation of the potential compensable damages, taking on a medical legal investigation may well be difficult to justify.
In addition to the complexity and associated expense involved, medical malpractice cases are also particularly taxing for the patient (and potential claimant). In most cases, the injured person has endured a trauma, and then continues to deal with its daily implications without any substantive recourse. Although pursuing potential legal action may be an attractive option from a financial viewpoint, the thought of subjecting oneself to the potential volatility of the legal system can be overwhelming and prohibitive.
The potential complexity and emotional burden of pursuing legal action are factors that are compounded by the fact that medical malpractice lawsuits are vigorously defended by entities with practically limitless resources. In terms of physician-defence, the CMPA harbours a vast financial reserve. The CMPA hires lawyers that are very skilled and knowledgeable in defending medical claims and will vigorously defend the conduct and reputation of the physicians, which may involve pushing a case to court even when an out-of-court settlement may resolve the situation. Another advantage clearly held by the CMPA and even HIROC is its access to leading medical experts. As Susan McIver states, “It’s a real David-and-Goliath situation.”8
Another challenge is presented by the fact that HIROC and the CMPA respond separately to common lawsuits, notwithstanding their shared source of public funding. This is ostensibly the case because physicians are legally subject to direct liability. The procedural and logistical difficulties that result from, put colloquially, having too many lawyers in the room, is not difficult to imagine. Given that the legal system requires partitioning responsibility and finding individual fault, the opportunities to play the ”blame-game” are endless. The practical impact of this situation is a barrier to facilitating fair resolutions. The less understood impact is a potentially obscured fact finding process, a compromised focus on patient safety, and an overall disincentive to pursuing claims where both the hospital (and its staff) and the physicians are potential defendants.
Addressing the Challenges: the Common Potential of the Medical and Legal System
The lawyers at Neinstein Personal Injury Lawyers’ Medical Malpractice Group believe that patients in Canada’s hospitals and doctors’ offices are entitled to safe, high-quality healthcare. Though medical malpractice law is a tough business, it is important to advance the common potential of the medical and legal systems to improve patient safety and to ensure that injured patients have access to justice. From this perspective, the ultimate goal is not to increase the number of medical malpractice lawsuits, but to instead work together to address and eliminate the risk factors that give rise to medical errors in the first place.
One possible solution to help achieve this goal would be a move to an enterprise-model of liability. The premise of enterprise liability is that an entire organization may be held responsible for obligations and/or offences of its constituent units. While the system retains the fault requirement of the negligence based medical malpractice system — in other words, it would still require plaintiffs to prove that the negligence occurred — it limits liability to the health care institution as a whole. Not only does this type of liability system appreciably simplify the legal process, but it can be used to achieve the overarching goal of deterrence, given that the health care institutions have the control, information, and authority necessary to make and shape decisions with respect to improvements in health care and patient safety.
While contemplating changes to the entire liability model would require systemic change, more practical strategies can and should also be implemented. These may include, for example, a commitment to fully investigating and advancing a cogent theory of liability from the outset of a case; engaging with policy and advocacy initiatives that facilitate the transfer of knowledge between the legal system and the medical system; and collaborating with other lawyers to identify and address both best practices and common challenges.
Until the occurrence of adverse events is either reduced or eliminated, there will be an ongoing need for dedicated advocates to advance the interests of injured patients. The Medical Malpractice Group at Neinstein Personal Injury Lawyers, led by Duncan Embury, will remain steadfast in their commitment to serving these interests while also working towards the ultimate goal of improved patient safety.
- The Canadian Adverse Events Study, CMAJ (2004) 170 (11) 1678–1686.
- McIver, Susan B. And Wyndham, Robin, After the Error: Speaking out about Patient Safety to Save Lives, ECW Press, 2013
- 3.Cerebralpalsy.org, http://www.cerebralpalsy.org/about-cerebral-palsy/risk-factors/oxygen-deprivation
- MacGregor v Potts, 2009 CarswellOnt 5077 at para 128 (Ont Sup Ct), aff’d in MacGregor v Potts, 2012 ONCA 226.
- Ellen J Picard & Gerald B Robertson, Legal Liability of Doctors and Hospitals in Canada, 4th ed (Toronto: Carswell, 2007) at pp 364–367.
- Wilson Estate v Byrne, 2004 CarswellOnt 2314 (Ont Sup Ct) at paras 20–21, 26, 40, 51–52.
- US General Accounting Office, Medical Malpractice: A Framework for Action (1987) at 22–25. Also see Bruce Chapman “Controlling the Costs of Medical Malpractice: An Argument for Strict Hospital Liability” (1990) 28:3 OHLJ at 539 [Chapman].
- Boyle, Theresa and Cribb, Robert. (2015, Sept 15). 6 reasons why it’s so hard to sue doctors and why so little compensation. Toronto Star