The High Cost of Medical Negligence and the Lengths Defendants Will go to Avoid Payment

When medical errors occur due to negligence, the results can be devastating to those who are injured, as well as their families. We represent individuals who will suffer lifelong repercussions due to acts of negligence in the medical system, and we understand the kind of financial burden that serious injuries like this can impose on a family. We have seen first-hand the emotional toll that medical errors can take on those affected, and so we’ve made it our mission to fight on behalf of our clients for therapies, medications, treatment and care so they can live as normal a life as possible.

Unlike some other areas of law, physicians and hospitals are represented by insurers or large organizations that exist to defend their clients and pay for their liabilities. For example, doctors are represented and indemnified by the CMPA, an organization that has approx. $4.5 billion and paid out about $250 million to injured patients in 2017.  

Sometimes people hear the amount of an award for medical negligence and think it seems very large. However, they often fail to consider the costs associated with a lifetime of care for an individual who has been denied the ability to work, live on their own, or even be left unattended. Our clients regularly tell us that they would trade any money in the world to regain what they have lost because of their injuries. In many cases, there are factors such as in-home care, physical and occupational therapy and expensive medications and equipment that must be accounted for.

As a result of the high damages necessitated by cases like this, defendants have been known to go to great lengths to avoid being held accountable, even going so far as to falsify records or look for far-reaching theories to blame for the injuries. 

Using three of our own recent cases to illustrate these points, we will demonstrate why the costs associated with medical negligence injuries are necessarily significant, and also the extreme measures that some defendants will take to avoid paying for the damage they’ve caused. Of course, every case is different, and the outcomes of each case will vary depending on the facts.  

Failure to Diagnose and Treat a Condition Before Brain Injury; Depriving the Plaintiffs (and the Jury) of Their Verdict

In a 2017 trial, after the defence made several efforts to remove the Jury, the Jury unanimously found both defendant obstetricians negligent and liable for a baby’s brain injury. The defence argued that the Jury’s verdict should not be accepted by the court because of a technical issue in the way the Jury phrased their answer. The issue is now under appeal (the Plaintiffs were granted leave to appeal to Divisional Court).

In this case, Carol was pregnant with her daughter, Rhonda. At a certain point in the pregnancy, Carol’s obstetrician (OB/GYN) correctly detected that there was a problem with Rhonda’s growth, which could lead to a dangerous situation during labour and delivery. He seems to have tracked her growth over several visits during regular checkups. The problem is that, on her last visit to the doctor’s office, he failed to recognize the danger to baby Rhonda and intervene. Nevertheless, Rhonda was still healthy at that point. That week, Carol attended the hospital for another checkup and for testing because of Rhonda’s growth issue. She saw another OB/GYN at the hospital who misread the fetal heart rate testing. Instead of recognizing the danger to baby Rhonda and intervening, the OB/GYN missed the opportunity to save Rhonda and negligently sent Carol home. As a result of the doctors’ failure to recognize the danger and intervene, Rhonda had a serious brain injury.

Covering up and Deflecting Blame

Given the fact that medical negligence cases can rightfully result in significant financial responsibility, we have found that defendants will often go to great lengths to cover their tracks, or to attempt to attribute cause for the injuries to other factors. Examples of both occurred in a case we took on in 2017, in which we represented the family of another young girl, named Sarah.

Sarah’s mother Jaye was pregnant with twins and arrived at the hospital in labour. The obstetrician on call was not present, but the nurses attending to Jaye delivered her first baby, Luke, without issue. After Luke was born, the nurses ruptured the protective membrane around Sarah. Once they did, the amniotic fluid drained away, and Sarah’s body weight began to press down on the umbilical cord, depriving her brain of necessary oxygen.  As a result of this mistake, Sarah now suffers from cerebral palsy, a lifelong disorder that requires long-term care from an entire medical team, including occupational therapy, physical therapy, mental health care, and speech pathology. 

At the time of the incident, Sarah’s parents noticed that her medical chart indicated that the rupture had been spontaneous rather than deliberate. They raised this with the hospital administration, and after investigating, the administration admitted that the rupture had not been spontaneous, as the chart indicated. However, once the lawsuit began, they initially avoided any mention of the rupture at all, insisting that their staff had acted appropriately in Jaye’s care. 

Eventually the hospital did admit fault with respect to the rupture, but pivoted their defence to focus on other causes of Sarah’s medical issues. Specifically, they attributed most of Sarah’s medical problems to inherited attention-deficit and hyperactivity disorder or Genetic Low IQ, rather than the brain damage she suffered at birth. The court rejected that argument and awarded Sarah and her family an award of damages to cover Sarah’s loss of future income and the costs associated with the lifelong medical care she will require. 

Based on the Plaintiff’s cross-examination of the defence experts, the Judge actually went out of his way to heavily criticize the defence experts in his written Decision For example:

Defence Neurologist:

  • “…his justification for this neglect was baffling. [He] undermined his own credibility before the court…”
  • “His attempt to retreat …  was transparent and, frankly, embarrassing.  I find that he was clearly tailoring his opinion to conform with the Defendant’s theory of causation.”
  • “It struck me as a poorly veiled attempt to put forward an alternative cause for Sarah’s present difficulties other than the brain damage…”

Defence Psychologist:

  • “Her oral testimony lacked conviction.  In addition, I find [her] to have been rather disingenuous in discussing her treatment recommendations for Sarah.”
  • “I find this proposed concern for the Butler family’s best interest simply unworthy of belief as well as highly discrediting.”
  • “As the trier of fact, I was disturbed by this poorly veiled attempt by an independent expert to help advance the Defendant’s theory of the case.”

Defence Speech Language Pathologist:

  • “Unfortunately, [she] adopted the highly complacent Defence theory of the case on damages in suggesting that speech-language therapy services would be of little utility …”

Defence Physiotherapist:

  • “I found the evidence …. to be contrived and unreliable.  Her testimony was palpably infected with the Defendant’s theory on the futility of extraordinary therapies…” 
  • “I find her suggestion that Sarah be denied physiotherapy services … to be both manufactured and untenable.”

After the court decision, our lead counsel on the case, Hilik Y. Elmaleh spoke with the National Post about what the hospital’s actions said about medical negligence litigation in general:

 “It tells me that hospitals can and will do everything in their power to avoid paying compensation. It tells us we need to be very, very careful and vigilant when a poor outcome results from a medical treatment. We can’t rely on what was said by a health-care provider … to find out what really happened.”

The defence appealed the decision of the trial judge on several grounds. The Ontario Court of Appeal upheld the Judge’s decision on the award for Sarah.

Costs of Future Care

We were honoured to represent the family of a young girl named Niza who, at just 5 months old, had been rushed to the emergency room by her fraught parents, with a high fever and breathing difficulties. Over the course of 24 hours, her condition went from bad to worse, with doctors treating her for a variety of ailments, from bronchitis to pneumonia.

Eventually, the medical staff noticed that she appeared to have sepsis, a serious condition that was causing her organs to shut down. One nurse was assigned to monitor Niza closely, however, her vitals were only taken once over the course of five hours. Growing increasingly concerned with the lack of monitoring, her parents requested that she be transferred to Sick Kids Hospital, but their requests were brushed aside. Eventually, Niza’s heart stopped completely and was resuscitated, the first of four times that would occur in just a few hours. Niza was eventually transferred to Sick Kids Hospital.

Niza did survive, and thankfully, she is able to do the things doctors warned she may not. However, she does have severe limitations. Walking is a challenge, as she has thrombosis that causes the muscles in her leg to seize and requires Botox therapy to allow her to walk normally. She lost parts of some of her fingers due to the circulation problems she suffered that night in the hospital. She can talk and write, but she had the intellectual capacity of a six-year-old child at the age of 13. She suffers from chronic respiratory issues and is at constant risk of having a seizure. Niza will never be able to work or live on her own. She requires continuous supervision and a host of therapies and medications to deal with the injuries caused by the lack of care she received that night as a baby.

The emotional and financial pressure on Niza’s parents was extraordinary. The damages we sought on their behalf were significant, and rightly so. Niza will require care, therapy and medication for the rest of her life, and she has been dealing with her injuries since she was a small infant. These costs add up, and it’s an overwhelming financial burden to bear for any family. Eventually, more than twelve years after that terrible night, in the middle of the trial the hospital agreed to settle the case. the high figure settlement numbers make sense when you break them down by the costs required to care for people suffering from serious injuries like Niza, who would not be in the situation she is were it not for the lack of care she received at that hospital. Not only is this amount equitable, but it is also necessary for her to move forward and receive the care, therapies, treatment and medications she requires.

Helping Families Seek Justice for Devastating and Life-long Injuries

At Sommers, Roth & Elmaleh, we have spent our careers seeking justice for families who have been wronged by medical errors. Often, these injuries are serious and require a lifetime of care, treatment and equipment to manage. We know that in pursuing litigation, our clients simply want to make up for what has been lost, and what will be required of them in the future. These families have been hurt by medical mistakes and will suffer the emotional and physical fallout forever. While negligent defendants cannot fully relieve the families of those burdens, they can pay for injured patients to live as normal a life as possible. 

Our medical malpractice lawyers in Toronto have helped many families whose lives have been affected by complications caused by improper medical care, including obstetrical malpractice or hospital error. Contact Sommers Roth & Elmaleh by phone at 416-961-1212 or online to schedule a free consultation.

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