Medical Malpractice Lawyers Face Challenges in Delayed Diagnosis Cases

In Ontario, some medical malpractice lawyers believe two words – “but for” – are making it difficult for injured patients to access compensation for negligence causing delayed diagnosis. Last month, Law Times reported on White v. St. Joseph’s Hospital (Hamilton) a case in which the plaintiff went into septic shock due to an undiagnosed bowel leak but was unable to recover compensation for his injuries.

The “but for” test is a test in Canadian tort law that links the damages the plaintiff has incurred with the defendant’s actions. In Clements v. Clements (2012), the Supreme Court of Canada summed up the test in these words: “the test for showing causation is the but for test. The plaintiff must show on a balance of probabilities that but for the defendant’s negligent act, the injury would not have occurred.”

Medical malpractice lawyers believe this wording confuses juries and makes it extremely difficult to prove liability in cases where negligence has clearly occurred. According to Law Times, plaintiffs have lost four out of the last five delayed diagnosis cases heard in Ontario’s courts.

“’But for’ is meant to encapsulate an event that causes or contributes to the harm,” one lawyer affiliated with the White v. St. Joseph’s case told Law Times. “But juries get confused when they hear that phrase, especially when there’s more than one contributing cause and they hear only the ‘but for’ phrase.”

In White v. St. Joseph’s, the plaintiff alleged that nurses and the hospital should have noticed the bowel leak before he went into septic shock. As a result of the delayed diagnosis, the plaintiff spent an extended time in hospital, including a stay in the intensive care unit, and underwent remedial surgery. However, an expert witness at the trial testified that “most of Mr. White’s outcome was unavoidable,” and the trial judge determined that the hospital had met its standard of care.

The Court of Appeal for Ontario upheld the trial judge’s decision using the ‘but for’ test. “In other words,” the decision read, “’but for’ the alleged delay would the plaintiff have suffered the unfavourable outcome?”

The plaintiff lawyer who spoke with Law Times believes the case leaves plenty of room for confusion and prejudice in subsequent jury trials.

“Nobody says ‘But for my car’s flat tire, I’m late,’ because that’s inconsistent with plain language,” he explained. “They say, ‘I’m late because I had a flat tire,’ and courts should approach causation in the same way.”

While medical malpractice cases involving delayed diagnosis are challenging, Will Davidson LLP’s team of medical malpractice lawyer has successfully secured compensation for its clients at all levels of court. If you’ve been injured in a medical setting, reach out today to learn how we can help.

CBC report shows poor standard of care in Ontario nursing homes

Nursing home negligence is a serious issue in Ontario, one which is unlikely to subside as the province’s population ages. Last month, CBC’s Marketplace sent an undercover journalist into a Markham, Ontario long-term care facility to record and report on the conditions there. The investigation unveiled a staff struggling to cope with its patients’ needs.

Markhaven Home for Seniors houses approximately 96 residents and is in many respects a typical Ontario long-term care facility. The CBC reports that it ranks “in the middle of the pack when it comes to the number of critical incident reports it generates for issues such as abuse, medication errors and disease outbreak.”

The facility relies heavily on volunteers, including high school students; Marketplace’s reporter gained access by volunteering there.

The reporter discovered a litany of troubling conditions: residents waiting in long lineups to use the bathroom; residents waiting to have “soiled incontinence products” removed and changed; incidents of resident-against-resident violence; emotional needs being ignored in the rush to attend to urgent physical needs.

Staff at the facility was under extraordinary strain. Single workers are on some nights left to care for up to 25 residents. Many staff are forced to skip meals and breaks as they struggle to attend to their patients.

This environment led to substandard care for many residents. The CBC spoke with Marie Harris whose 84-year-old mother, Giovanna Conforti, died at Markhaven in May 2017. On the night she died, Conforti was placed in her bed around midnight, out of reach of her call bell which was used to summon nurses when she was in distress. Conforti’s care schedule dictated that she should be checked on every four hours, but she was left alone until 7am the next day. She passed away during the night, apparently as she struggled to reach her call bell.

Harris believes the province’s staffing guidelines are partly to blame for her mother’s death

“There should be legislation that has to have more people to take care of our loved ones,” she told the CBC. “More nursing staff, more [personal support workers, or PSWs] on the floor.”

Patient advocates and personal injury lawyers specializing in nursing home negligence agree. In Alberta, provincial guidelines dictate that long-term care patients should receive 1.9 hours of one-on-one care each day. In Manitoba that number is 3.6 hours. Ontario once had an “hours of direct care” guideline but removed it in 1996. Today, the only staffing guideline for long-term care facilities is that each must have a registered nurse on duty at all hours. By this standard, staffing at the Markhaven Home for Seniors meets provincial standards.

If you or a member of your family has received sub-par care at a long-term care facility or has been the victim of nursing home negligence, contact Will Davidson LLP to learn how we can help.


Image credit: Senior Airman Matthew Gilmore

Birthing injuries involving forceps are on the rise in Canada

Childbirth is an unforgettable experience, but also a risky moment in a woman’s life, even in a country like Canada where doctors have access to advanced medical technology. As obstetrical malpractice lawyers can attest, medical errors or omissions during childbirth can cause injuries that have serious, long-lasting impacts on a mother or child.

A study published recently in the Canadian Medical Association Journal found that injuries during childbirth are on the rise in Canada, especially among deliveries involving forceps.  The study included almost two-million one-baby deliveries occurring in Alberta, Saskatchewan, Manitoba, and Ontario between 2004 and 2015.

The Mayo Clinic describes forceps as “an instrument shaped like a pair of large spoons or salad tongs.” They are used in operative vaginal deliveries where certain problems exist, such as stalled labour, heartbeat issues, or the baby facing the wrong direction. The benefits of forceps deliveries include reduced delivery times and avoiding Caesarian-section (C-section).

However, there are also risks, and the risks are growing. The authors of the Canadian Medical Association Journal study declared that their findings suggest “the safety of the procedures is declining in Canada, especially after forceps use.” In 2004, 19.4 per cent of first-time mothers suffered birthing injuries during forceps- or vacuum-assisted delivery; in 2014, 26.5 per cent did. Women with previous C-sections saw an even steeper climb, with just 17 per cent experiencing injuries in 2004 and 26 per cent experiencing them in 2014.

Trauma to babies also increased but remained relatively rare: the study reported 4.5 injuries per 1,000 deliveries in 2004 and 6.8 injuries per 1,000 deliveries in 2014.

The most common injuries to mothers were third- and fourth-degree perineal tears; babies most commonly suffered brachial plexus injuries.

Increasing injury rates have prompted doctors and obstetrical malpractice lawyers in Canada and around the world to suggest changes. In Australia, some experts have called for a ban on forceps use, while some American hospitals already prohibit it. As C-section deliveries become increasingly common – a third of babies are now delivered by C-section – young doctors will have fewer and fewer chances to become comfortable with the practice. According to the National Post, a 2007 study found that only about half of American residency program graduates felt competent using forceps.

If your family has been affected by a birthing injury involving the use of forceps, contact the obstetrical malpractice lawyers at Will Davidson LLP today to find out how we can help. Our experienced team of personal injury and medical malpractice lawyers can explain your legal options and guide you on your path to compensation and recovery.


Image credit: Gilberto Santa Rosa/Wikimedia Commons

Unnecessary childhood chiropractic treatments raise alarms among pediatricians


Pediatricians are concerned that certain Canadian chiropractors are promoting unnecessary corrective spinal manipulations for young children and infants, according to a report from the National Post. While the procedures are generally harmless, they put patients at risk of serious injuries that would necessitate the services of a personal injury lawyer.

At the heart of the issue is chiropractors’ claims that spinal adjustments can address a diverse range of childhood ailments, including learning disorders and food allergies. However, the Canadian Paediatric Society (CPS) has warned parents that chiropractic procedures are not an effective substitute to medical treatment. “Parents should be made aware that there is a lack of substantiated evidence for the theory of subluxated vertebrae as the causality for illness in children,” the organization has stated.

Dr. Douglas Mack, an assistant clinical professor at McMaster University, told the National Post that he has treated nut-allergic children who consumed nuts after being told by their chiropractor that spinal therapy could help.

“It’s often an ‘us’ against ‘them’ perspective and I don’t think it needs to be,” Dr. Mack said. “But when they overstate what is outside of their realm, quite honestly that borders on fraudulent.”

According to the Post, some chiropractors tell clients that as many as 80 per cent of newborns suffer trauma at birth, for which spinal manipulation is a safe and beneficial treatment.

“There’s a lot of anecdotal reports and scary memes where they show the obstetrician or midwife pulling the baby out by the neck,” said Dr. Clay Travis Hones, a pediatrician in Massachusetts, to the Post. “But there’s no legitimate evidence that any appreciable per cent of babies suffer subluxations to the spinal bones or any injury that would be amenable to adjustments…. They’re just scare tactics.”

While rare, injuries associated with childhood spinal manipulations can be extremely serious. In 2007, researchers at the University of Alberta reviewed 13 published studies on the subject and found more than a dozen injuries, including nine serious ones and two that resulted in death.

The study also identified two meningitis deaths that occurred when chiropractors attempted to treat the illness rather than referring the patient to a physician. This situation could constitute a form of medical malpractice that a personal injury lawyer would be capable of addressing.

If a member of your family has been injured as a result of an improper medical procedure, contact a personal injury lawyer at Will Davidson LLP’s Oakville offices today to arrange a free, no-obligation consultation. Our team can help you understand your legal options.

Medical regulatory body comes under fire for delayed, lenient punishments


The College of Physicians and Surgeons of Ontario (CPSO) is the regulatory body that oversees and disciplines doctors, nurses, dentists, and other healthcare professionals in the province. Its stated goal, according to its website, is to “regulate the practice of medicine to protect and serve the public interest.” Unfortunately, the CPSO’s long history of leniency toward its members has prompted critics, including some medical malpractice lawyers, to question whether the body is fulfilling its obligation to patients.

Two recent cases exemplify the issue. The first involves Toronto doctor Javad Peirovy, who the CPSO found guilty three years ago of sexually abusing four female patients, according to the Toronto Star.

While the CPSO’s prosecutor argued that Peirovy should lose his license, the body’s disciplinary panel decided on a much lighter sentence that included a six-month suspension. The prosecutor appealed the decision to the Ontario Divisional Court, where it was overturned.

“[The punishment] was inadequate to protect the public and vindicate the integrity of the profession,” the Divisional Court’s decision reads. “The public’s confidence in the medical profession demands more from the disciplinary process than recent sexual abuse discipline cases suggest.”

However, because no final decision has been made on Peirovy’s punishment, he is still actively practicing, with some restrictions.

The second case involves St. Thomas, Ontario, obstetrician-gynecologist Cathy Frank who, the Star reports, has been implicated in more than 60 lawsuits dating to 2003. In February, the CPSO suspended her for two years. Its decision cited numerous medical errors, including failure to determine the causes of patients’ symptoms before performing surgery; failure to establish consent before performing procedures; and failure to adequately monitor and assess post-operative patients.

Critics, including medical malpractice lawyers, have questioned whether Frank’s punishment matches the severity of her mistakes and whether injuries would have been avoided if the CPSO had acted faster.

“While there is that amount of relief, there is anger,” Lorraine Kinninmont, a former patient of Frank’s, told the Star. “Why did the (college) take so long and how can they be held accountable? How can they change their processes to avoid this in the future? This goes back to 2003. I look back and it makes me angry because maybe had the (college) acted properly the first time, I wouldn’t have been injured … My goal has always been to stop other women being hurt.”

When a doctor or other healthcare professional has a history of committing harmful errors, the College of Physicians and Surgeons of Ontario must act to protect the public. Unnecessary delays and lenient punishments put patients at risk of further injuries.

If you or a member of your family has been injured because of the error or omission of a healthcare professional, contact the medical malpractice lawyers at Will Davidson LLP today to arrange a consultation. Our experienced team can help you understand your legal position and guide you on your best path to recovery.


Image credit: Brian Turner/Flickr

My Child Was Injured During Childbirth – Do I Have a Case?


Childbirth is among the most meaningful and memorable moments in a person’s life; it is also a time of significant vulnerability, both for the mother and her child. Though most birthing injuries are fairly mild and do not cause long-term impairment, a serious birthing injury can have devastating, lifelong impacts. If you believe your child has been injured due to the errors of a medical professional, contact a birthing injury lawyer at Will Davidson LLP today for help.

Causes of birth trauma

There are several reasons why a birthing injury may occur, most of them natural or purely accidental. For instance, particularly large babies, especially those weighing more than 4,000 grams (8 pounds, 3 ounces) are susceptible to injury. So, too, are premature babies – those born before 37 weeks of pregnancy – due to their underdeveloped and fragile bodies.

Other factors like awkward fetal positioning or the size and shape of the mother’s pelvis can cause problems.

In some cases, birth trauma is caused or contributed to by the errors or negligence of medical professionals. It is in these instances that malpractice may have occurred and the injured family may have grounds to pursue a medical malpractice lawsuit.

Forms of birth trauma

Birthing injuries come in many forms and vary widely in severity. Swelling, bruising, and cuts are all particularly common, especially in births involving vacuum extractors or forceps. These are unlikely to have long-lasting impacts.

Other relatively common injuries include cephalohematoma, where bleeding occurs beneath the child’s cranial bones; subconjunctival hemorrhage, when small blood vessels in the baby’s eyes break; facial paralysis caused by pressure on the face during birth; and fractures, most often to the clavicle or collarbone.

Brachial plexus injuries are perhaps the most common form of serious muscle-related birth trauma. The brachial plexus is a group of nerves that supplies a person’s arms and hands. Injuries to the grouping most often occur when there is difficulty delivering a baby’s shoulders. In cases where the plexus is bruised or swollen, the baby may temporarily lose the ability to flex and rotate its arms; if the nerves are torn, the paralysis can be permanent.

Many of the most serious birth traumas are caused by the deprivation of oxygen to a child’s brain, known as hypoxic-ischemic encephalopathy (HIE). This injury is believed to cause more than 800,000 neonatal deaths per year, globally, and can stem from a wide range of causes, including brain or skull trauma, infections, prolonged late stages of labor, and umbilical cord accidents or issues. HIE can result in epilepsy, developmental delays, motor impairment, neurodevelopmental delays, cognitive impairments, and in rare cases Cerebral Palsy.

Should I consult a birthing injury lawyer?

If your child has suffered a birthing injury that you believe was caused by the errors or negligence of a medical professional, contacting an experienced birthing injury lawyer should be a top priority. However, not all medical errors are ground for a malpractice case. In Canada, medical malpractice has not occurred unless the error or omission would not have been made by another medical professional in a similar situation.

If medical malpractice has occurred, a birthing injury lawyer at Will Davidson LLP may be able to help you access compensation. Call us today at 1-800-661-7606 to arrange a no-obligation consultation and learn how we can help.


Overcrowding at Ontario’s hospitals puts patients at risk


Many of Ontario’s hospitals were dangerously overcrowded in 2017, leading to conditions that put patient safety at risk and can, in some cases, result in a medical malpractice lawsuit. Last December, leaders from the Ontario Hospital Association (OHA) warned in unusually dire terms that the province’s hospitals were “on the brink” of a “crisis,” according to the Toronto Star.

In a prebudget submission to Ontario’s finance committee, the OHA requested a 4.55 per cent funding increase, approximately $815-million, for 2018-19.

“An increase of 4.55 per cent in hospital funding in 2018-19 will ensure that hospitals have the resources needed to avoid a significant capacity crisis in Ontario’s health care system,” reads the document, titled ‘A Sector on the Brink: The Case for a Significant Investment in Ontario’s Hospitals.’

“The sector is heaving under enormous pressure right now,” said OHA president Anthony Hale. “Hospitals really need significant investment next year to maintain access to existing levels of services.”

Approximately half of the province’s 143 hospitals hit 100 per cent occupancy during summer 2017, and some reported 140 per cent occupancy over the course of the year. The international standard for safe occupancy is 85 per cent, the Star reports.

The effects of overcrowding in hospitals are many. The OHA’s prebudget submission lists longer wait times; increased volume in emergency rooms; and run down, past-its-prime equipment. Hospital overcrowding can also put tremendous pressure on staff, force patients to be housed in make-shift facilities like hallways and staff lounges, and increase risk of infection. In other words, overcrowding creates an environment where an error leading to a medical malpractice lawsuit is more likely to occur.

The Government of Ontario has announced several measures intended to ease the overcrowding crisis, including adding 1,200 beds for this year’s flu season; investing $40-million in home care in order to open up hospital beds; and introducing 5,000 new long-term care beds over the next four years. But without additional funding commitments, these actions are unlikely to produce lasting improvements.

Ontario’s population is expected to grow by more than 30 per cent over the next 25 years, during which time the number of seniors in the province is expected to double. By 2041, people aged 65 and over are expected to make up 25 per cent of the population. The coming population boom and overall aging trend will continue to strain hospital capacities unless substantial changes to the healthcare system are made.

If you or someone you love has been injured due to a medical error, contact the Oakville personal injury lawyers at Will Davidson LLP to discuss whether you have grounds to initiate a medical malpractice lawsuit.


Image credit: Master Sgt. Efrain Gonzalez/U.S. Air Force

McMaster study warns against antidepressant use

Medical malpractice lawyers ensure that Canadians are protected from the negligence of medical service providers, including pharmaceutical manufacturers. When a medication or consumer medical product causes harm, a medical malpractice lawyer may be asked to seek compensation for the injured individual.

Canadian doctors prescribe a lot of antidepressants. According to a 2013 study by the Organisation for Economic Co-operation and Development, as much as nine per cent of the population may be prescribed antidepressants at any given time, the third highest consumption rate in the developed world behind only Iceland and Australia. In 2015 alone, more than 50 million prescriptions were filled coast to coast.

To be sure, antidepressants save lives by providing much-needed relief for people experiencing severe depression or suicidal thoughts. However, as the National Post reported in September, psychiatrists and family doctors alike “have been accused by some … of being overly liberal with the use of the mood-altering pills,” prescribing the medication to treat illnesses from mild depression to insomnia to chronic pain. If these aggressive prescribing methods were to result in injury or illness, a medical malpractice lawyer might have grounds to file a personal injury claim. Recent research from McMaster University in Hamilton suggests this scenario is fairly common.

“Most people should not be given these drugs because it looks like, at least in the general population samples, they’re doing more harm than good,” Paul Andrews, the study’s lead author and an evolutionary biologist and associate professor at McMaster, told the Post.

Andrews’ research consisted of a meta-analysis of 16 studies involving close to 380,000 people, some who used antidepressants and some who did not. The research found that antidepressant users had a 33 per cent higher risk of death and 14 per cent higher risk of stroke or heart attack than people who did not use the medication. The study controlled for the higher risk of death generally affiliated with depression.

According to the McMaster study, antidepressant use poses a risk due to the medications’ impact on platelets, small cells that exist in the body’s bloodstream to form clots and stem bleeding. Platelets rely on the chemical serotonin to function properly, and many antidepressants prevent the body’s organs from absorbing serotonin. Thus, antidepressants may act as a de facto blood thinner, making it possible “for a normal person to have increased risk of stroke, or upper GI (gastrointestinal) bleeding or other sorts of abnormal bleeding events that could be harmful or deadly,” Andrews said.

Andrews’ team isn’t alone in linking antidepressant use to negative health outcomes. In January, the Post reported on a separate study which found that antidepressants “are associated with a twofold increase in the odds of developing some forms of dementia, including Alzheimer’s.”

Psychiatric and psychopharmacological experts have greeted Andrews’ and other studies criticizing the use of antidepressants with measured scepticism. Some admitted that the effects of long-term antidepressant use are not yet known, while others cautioned that individual studies are not cause for alarm.

If you have experienced negative outcomes as a result of being prescribed antidepressants, contact a Will Davidson LLP medical malpractice lawyer today to set up a free consultation. Our team can determine whether you have the right to launch a lawsuit and help you on your road to recovery.

Quebec birthing injury lawsuit sparks interest

A Quebec woman is taking legal action against her obstetrical team after suffering significant injuries in the 2010 birth of her child. The plaintiff’s child was also injured during what court documents describe as “a traumatic and chaotic birth that caused numerous damages to the plaintiffs, notably a permanent paralysis to the [baby’s] right arm,” according to the Toronto Star. Will Davidson LLP’s team of medical malpractice lawyers has experience with cases involving birth trauma, and as such was interested in the specifics of this claim.

The Star reports that Anik Bourbeau and Pascal Lessard’s doctors neglected to perform an ultrasound to evaluate the size of the baby, which was delivered naturally at 13 pounds. Bourbeau had a history of difficult pregnancies and explicitly expressed a willingness to undergo a C-section, which the doctors did not recommend.

“The defendants omitted to proceed to an evaluation of the child’s size, while the clinical evolution of Madame Bourbeau demanded it,” the court documents read.

Childbirth should be a profound, meaningful, and celebratory moment in an individual’s life, which is why birthing injuries and obstetrical malpractice are such painful experiences. Significant birth traumas can have devastating and even life-long effects on both the mother and the child, which is why experienced medical malpractice lawyers are often called on to help access compensation.

Bourbeau and Lessard are seeking $1.4-million in damages from their doctors and the hospital where the birth occurred. This compensation is intended to cover loss of income for both parents, future medical costs for the child, and general damages. The case will likely be heard in Quebec’s Superior Court next May.

When a child suffers a serious injury at birth, his or her parents will often feel the impact for years. For instance, birthing complications that cut off the child’s oxygen can result in developmental disabilities, which may require extensive employment and lifestyle sacrifices from the parents. Caring for a disabled child is expensive and exceptionally challenging – if the disability was caused by a healthcare professional’s preventable error, the child and child’s family may be entitled to financial compensation.

Medical malpractice cases in Canada are often lengthy and extremely complex, which is why injured patients should contact an experienced and accomplished team of medical malpractice lawyers, like the ones at Will Davidson LLP. Our team has been helping injured Ontarians access compensation for their injuries for years; call us today to set up a free consultation and learn how we can help you put your life back on track.


Image credit: Gilberto Santa Rosa/Wikimedia Commons

Overcrowding in Ontario’s hospitals is a serious – and growing – problem

After a recent visit to a hospital in Sudbury, France Gelinas, Health Critic for the provincial NDP, filed a Freedom of Information request to better understand a critical issue to Ontario’s healthcare system: hospital overcrowding.

“I knew it was bad,” Gelinas told the CBC. “I knew our hospitals were overcrowded, but I never thought it was that bad.”

In order for a hospital to provide reliable, quality care to its patients, it should not pass approximately 85 per cent occupancy. But according to the documents Gelinas received, the majority of Ontario’s hospitals operate at between 94 and 99 per cent capacity. These circumstances make it difficult for physicians and nurses to provide an appropriate quality of care, which can in some cases lead to injury. If you have been injured as a result of hospital negligence, contact a Will Davidson LLP hospital error lawyer today.

Hospital discharge

Discharge delays, according to a September 2016 article in Hospital News, are a major factor contributing to hospital overcrowding.  In May of this year, approximately 15 per cent of acute care hospital beds in Ontario were occupied by patients awaiting discharge to either long-term care or home care settings. As a result, new acute care patients are sometimes forced to occupy beds in hallways or make-shift rooms created with partitions, a scenario that sometimes produces the need for a hospital error lawyer.

“It doesn’t matter how hard they work, [staff] can not provide quality care, hallway nursing will never be quality care no matter how hard this nurse works,” Gelinas said, per the CBC. “[They] can not provide quality care in a hallway, [or] in a broom closet.”

Canada’s rapidly aging population is partly to blame for this problem: in the past seven years, Ontario hospitals have seen a 13.4 per cent increase in emergency room visits, fueled by a 29.1 per cent increase in visits by people aged 65 and older.

“Inevitably as we get older we have more health problems, for the most part,” Dr. Joshua Tepper, president and CEO of Health Quality Ontario, told the CBC in a separate report. “And therefore with a growing older population, we will see a higher level of illness with time, and especially with more chronic diseases.”

Increased funding for all aspects of Ontario’s healthcare system will be necessary for protecting hospital patients. In particular, long-term care and home care must receive renewed attention. Expanding the capacity of these systems and streamlining the process of discharging patients from acute care could relieve substantial pressure from Ontario’s hospitals.

We can help – contact a Will Davidson LLP Hospital Error Lawyer today

If you or a member of your family has suffered an injury as a result of hospital overcrowding, contact a hospital error lawyer at Will Davidson LLP to set up a free, no-obligation consultation. Hospitals in Ontario have a duty to provide attentive, high-quality care to their patients, and this care can be jeopardized in over-crowded hospitals with over-worked staff. At Will Davidson LLP, we will fight for the compensation you deserve as you work to recover from your injuries.

Request a free consultation