Are you being ill-served?

Medical malpractice system doesn’t have interests of patients in mind

“Suffer any wrong that can be done you rather than come here!”

— Charles Dickens in Bleak House commenting on litigation in England in the 1800s.



Alecia Fisher was born in February, 1991 with severe brain injuries. At age 21, she is a quadriplegic, has cerebral palsy and requires round-the-clock assistance for her daily activities, including eating, dressing and bathing.

Two trials have been held to determine responsibility for Alecia’s injuries.

The first took place over eight months in 2004 and 2005, resulting in a February, 2007 decision declaring the hospital’s nurses negligent in failing to monitor her fetal heart rate for a 90-minute period during the mother’s active labour phase.

The trial judge ruled this negligence caused or materially contributed to Alecia’s injuries, leading to a multi-million-dollar award.

As happens all too often, the decision was appealed. As also happens too often, the Ontario Court of Appeal allowed it.

The trial judge was ruled correct in concluding the nurses were negligent, but that she erred in her analysis of whether the negligence likely led to the injuries.

A second trial was ordered. It took place over 12 days in late 2011. The second judge released his decision February, 14. Once again the court declared the nurses negligent and that there was a connection between the negligence and the injuries.

So, you ask, finally, after 21 years, Alecia’s family will receive the compensation they deserve and need to pay the extraordinary expenses for Alecia’s care?

Perhaps. You see, there’s nothing to stop Victoria Hospital of London, Ontario (part of the London Health Sciences Centre) from appealing and seeking a third trial.

Our rules permit it and the hospital would be within its rights.

Cassidy Ediger, was born in January, 1998 with severe brain injuries. She cannot speak, is tube-fed, and confined to a wheel chair.

Her cognitive functioning may achieve the level of a four or five year old. She is totally dependent on others for her daily needs.

The trial against her mother’s obstetrician took place in 2008, with a decision awarding $3.2 million released in March, 2009.

The British Columbia Court of Appeal reversed the trial ruling and dismissed the lawsuit last May, concluding it hadn’t been sufficiently established the negligence of the obstetrician was the likely cause of the birth injuries.

Last month, the Supreme Court of Canada agreed to hear an appeal of the BCCA decision. If successful, there could be a new trial in 2013.

Matthew MacGregor was born in January, 1999. He has a form of cerebral palsy, cannot walk or talk, has severe cognitive deficits and is fed through a tube implanted in his abdomen.

His life expectancy is about 30 years and he requires care almost on a 24/7 basis.

His trial took place over a three-month period in late 2008, with a $2.6 million ruling in favour of the parents released in August, 2009.

The appeal of this decision is being argued later this month and he will likely have lived half his life before the litigation has concluded.

Zmora Gutbir was born in 1984. She too has cerebral palsy and requires constant care. Her trial took place in 2010, resulting in a multi-million dollar award against Toronto General Hospital.

The appeal was dismissed last month, allowing the award to stand, barring a successful appeal to the Supreme Court of Canada.

These four recent negligence cases illustrate a disturbing pattern in the world of medical malpractice.

Ask yourself, who benefits from such interminable litigation?

How many other cases aren’t brought forward due to the potential costs and uncertainties of litigation, with its zero sum winner-takes-all approach?

And what will it take before we change our adversarial, lawyer-driven negligence approach to these tragic incidents?


_{Source: Alan Shanoff ,Toronto Sun First posted: Saturday, March 03, 2012 08:00 PM EST}