May 25, 2012 / 5:00 am
There I was, sitting on the operating table with my legs hanging over the side and my back curved to open up my spine, just as instructed by the anesthesiologist. I was excited and nervous as I was getting ready to give birth to my son by C-section. The obstetrician held my hand and proceeded to ask me casual questions in an effort to distract me from the 3.5 inch needle that was about to penetrate my spine. “What do you do for a living?” he asks (There are only two occasions when I don’t like answering this question: 1) when I’m buying a car; and 2) when I’m sitting on the operating table). He then asks “what kind of law do you practice?” If I had been a little less distracted I might have been smart enough to say something like “civil litigation” however I responded “employment law, personal injury law and medical malpractice law.” I had obviously hit a nerve and the anesthesiologist repaid the favour! Within a fraction of a second after answering this question, I experienced the worst pain of my life and let out a corresponding scream. The needle that had been inserted into my spine hit a nerve and sent a shock down the left side of my body to the tip of my big toe that was so excruciating it was like being struck by lightning. For good measure he tried three more times, striking the nerve but only shocking me slightly less each time. Fortunately for me the fourth try was a charm, the anesthetic worked and I still gave birth to a healthy baby boy. Now, there is no question that the anesthesiologist in my situation made a mistake (or maybe he didn’t depending on your cynicism), but the question becomes was it medical malpractice?
To establish medical malpractice, which is more appropriately referred to as medical negligence, you must be able to demonstrate that the doctor fell below the reasonable standard of care of a reasonable medical person considering all the circumstances. In this regard, it is important to understand, that not all mistakes amount to negligence. Doctors are not expected to be perfect and they are allowed to make mistakes provided they do not fall below the standard of care. In many cases, expert evidence from another medical practitioner with similar qualifications is required to prove that the doctor in question fell below the standard of care. The CMPA, which is the organization that defends most doctors in Canada, would also retain an expert. In their case, they want an expert to say that the doctor in question did not fall below the standard of care. If both you and the CMPA are successful in finding an expert to support the respective positions, the case becomes a battle of the experts.
If it can be established that the doctor fell below the standard of care, you also have to prove causation. What this means is that you have to establish that the negligence of the doctor caused the injury or in other words, “but-for” the doctor’s negligence, you would not have suffered the injury. If you cannot show that the actions or inaction of the doctor caused the injury the case will fail. Given the importance of establishing causation, expert evidence is also often required for this purpose as well. In the case above, establishing causation for the immediate pain is relatively simple; however proving that ongoing pain is related to the same event is not so simple. Many times causation is where the case falls short. For example, if the doctor was negligent for failing to diagnose a patient with a cancer and the patient dies a month later, chances are the doctor’s failure to diagnose did not cause the patient’s death. This is because even if the doctor had properly diagnosed the patient, it can most likely be proven that the patient would have died in any event. However, if it can be proven that the patient would have survived, than causation will be established.
In some cases it is easy to establish negligence but not causation. In other cases the reverse is true or you may have difficulty establishing both. However, even where you can establish both negligence and causation you also need to prove the damages suffered. In some cases the cost of retaining experts to prove negligence and causation are so significant that it does not warrant the amount of damages available.
In summary, a successful medical negligence claim requires you to establish all of the following:
Negligence - the doctor fell below the reasonable standard of care of a reasonable medical person considering all the circumstances;
Causation - the doctor’s action or inaction caused the injury; and
Damages - you suffered damages as a result of the injury.
You also have a limited period of time in which to bring your claim. If you do not pursue your claim within the required time frame your claim will be dismissed.
Unlike other personal injury claims, the CMPA will not settle medical negligence claims on the same basis as insurance companies. Defending the professional integrity of physicians is their number one priority. If the claim is defensible, they will not settle and you need to be prepared to go to trial. If the claim is not defensible (from the CMPA’s perspective), a reasonable settlement may be reached. As medical negligence claims are complicated, if you think you may have a claim, you should contact a lawyer who practices in the area of medical negligence as soon as possible to determine the validity of your claim and to ensure that no time limits are missed.
*Important Note: The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.
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