Navigating negligence: legal strategies in E.R negligence litigation

Navigating Negligence: Legal Strategies in E.R Negligence Litigation Mallory Hendry 00:00:03 Hello, everyone, and thanks for joining us today. I'm Mallory Hendry, content specialists manager with Canadian Lawyer magazine. And I'm pleased to introduce today's webinar, Navigating negligence: legal strategies in E.R negligence litigation. The presenters we have with us today are Richard Bogoroch and Heidi brown from Bogoroch and Associates LLP. Over the next hour, these veterans in the field will share real life stories of negligence in the emergency room, provide in depth analysis of misdiagnosis scenarios and their role in negative patient outcomes, and also offer insights into the successful litigation of these cases. At the end of the presentation, the panel will participate in a question and answer period. So be sure to type any questions you have into the q&a box within the webinar software. I'll turn things over to our panelists now to begin the presentation. Take it away, Richard. Richard Bogoroch 00:00:50 Good afternoon, everyone. I'm delighted to be here today with my partner Hardy brown to talk to you about the emergency room. And what goes wrong there. You know, I've been practicing for many, many years. And I can tell you that as a medical malpractice lawyer, I'm very surprised that there are less errors occurring in an ER than one would anticipate. Overall, in my experience, this is anecdotal, because I don't believe we have the statistics here in Canada that they have United States. But in my experience, most people are obviously very well treated in the emergency room, the vast majority are treated millions of people attend the emergency room across Canada every year. But errors take place. Errors take place when we see them. And we and you read about cases, you think they're happening every other day, they are not. The vast majority of the physicians and nurses are highly trained, highly competent, and in and do their jobs properly. What we're talking about are when things go wrong, and in order to set the stage for navigating negligence, talk telling you about what goes on in the emergency room, I just want to talk to you a little bit about the types of errors that we see in the types of misdiagnosis that occur. There's different categories of a diagnostic error, there is delayed diagnosis, which often which most often than not more often than not, does not occur in the ER but delay diagnosis. Typical example somebody has cancer, and it's not picked up. And the the diagnosis is delayed by months or years with with terrible outcomes for the patient. And we have in this office and continue to handle cases of not aware delay diagnosis of breast cancer. And many times with clients when our clients come to us that diagnosis is missed. And they are either at stage two, three, and sometimes stage four. We've had cases where you were there a long delays resulted in a terrible outcome resulting in death. But I don't want to talk to so much about that. But I want to talk about that's really delayed diagnosis. What we see in the, in our practice is something called a missed diagnosis or a wrong diagnosis. And, for example, what's a typical example somebody's having a heart attack, and they're told it's indigestion and sent home where they then die, or they have a heart attack at home rushed back to the hospital with dire consequences. So those are the types of things that we see we see wrong or misdiagnosis of failure to diagnosis. Well, that happens where there's no diagnosis, somebody is sent to the goes to the emergency department, they're sent home say nothing's wrong with you. And in that particular case, they may have missed the diagnosis completely. But generally, we're concerned more about missed misdiagnosis, wrong diagnosis. And that occurs in many of the cases that we've that we've handled. Now, my my, I've often wondered, why are there so many diagnostic errors? As I mentioned before, in my introductory remarks, obviously, the vast majority of people attending the emergency department are well treated. But the percentages may still be high given the number of of patients who attend the emergency department every year. I'm not sure in Canada, if we have a comprehensive dashboard or database about the types of errors that occur in the ER, where they occur, what types of hospitals, those types of statistics would be extremely important in reducing the types of errors in the emergency room. But we don't have that. And we don't know for example, does does the rate of error increased depending on age? Does it depend on gender does depend on ethnicity. These are factors that we need to know to properly plan for and reduce the types of errors in the emergency room. Now, why are there errors? Why do these errors occur? The answer is physicians and nurses are human, we make mistakes. But diagnosis itself is a very complex process. There are, I think, over 10,000 known diseases, and 3500 kinds of laboratory tests. But there's really only a small number of symptoms, so that any symptom may have dozens or hundreds of possible explanations. So you're dealing with a complex paradigm or framework to begin with. And the also the problem is why some of these errors take place. General is the right questions haven't been asked, the thorough history hasn't been taken, the tests that are needed to die diagnostic to enable the termination of a differential diagnosis have not been ordered. These are just some of the issues that relate to medical error. One thing that I have learned over the years and which I tell everyone provide no, you have to be an advocate for yourself, you have to be engaged in the process. So that if any, if you are a loved one, go to the hospital, you need advocates, you have to make sure that the doctors understand the symptomology it's so important. It is so important. That's I've learned over 40 years, that patients and or their partners or people who are attending with him at the ER must advocate must be engaged in the process, and must make sure that the physicians and nurses are aware of the symptoms. Now well that obviously eliminate medical error, no, but I believe it will reduce it, if everyone attending the ER is engaged in the process, and is advocating and ensuring that things are being done that ought to be done. And that really is a good segue into the into this case, which I want to talk about Hunter. And this is a case where somebody wasn't treated. And we settled this case just a couple of years ago. But it was a very sad case. My my clients husband wasn't a splenic patient. I mean, he had his spleen removed many years earlier. And the spleen is considered to be a in some way some people think, well the spleen is not an important organ, but it is. spleen is very important for infection control. And if you don't have a spleen, you are immunocompromised and to some degree. And that's why people without a spleen, people sometimes lose their spleen either because of a inherited disease called spherocytosis, which is a blood disorder. People lose spleens as a result of accidents, sporting events, any type of injury. Many times we've in our personal injury practice, we've had clients become a splenic, or lose their spleen as a result of trauma sustained in a car accident or motorcycle accident. But in any event, when you don't have a spleen, you are at a greater risk of infection. That's why the protocols are that people without a spleen have to be you know, immunized and make sure their immunizations are, are up to date, some of the immunizations, some of the vaccines are pneumococcal vaccine, because if you don't have a spleen and you get pneumonia, your ability to withstand a pneumonia is is reduced. And what's and so it's very important that if you don't have a spleen, and the hospital knows about it, that they treat you very, very I would say aggressively, but within the standard of care to make sure you don't get an infection that goes out of control, which is what happened here. And we change things around a little bit. Certainly the names and some of the other issues just but this is from an actual case. So our claim was a 35 year old professional who didn't have a spleen who was removed years before. And, you know, and he goes to the hospital complaints of fever, chills and body aches. And, you know, they think he basically has the flu. So they discharged him instead of giving him empiric antibiotic medicate medications but instead of doing tests on him, instead of determining and asking questions, you're in a splenic patient. You've got fever, chills and body aches that can be bad and could be the sign of pneumonia. It could be the sign of a very bad infection, something bad could be occurring instead He sent home with no anti biotics. Now, with hours, hours, he returns to the hospital with his wife, and he deteriorated so rapidly, then they realize something's very, very wrong here, this guy is really ill, we better get him on antibiotics very quickly. But of course, it's too late. And he died of sepsis. Now, this is an example of not and this is an example of the doctor, not asking the right questions, and not considering the implications of what occurred. Guy comes in. He's a splenic, when somebody comes in a splenic, alarm bells should go off. Unfortunately, alarm bells did not go off. Because if you had had the doctor recognize that this person is at great risk, that if he's if he's got fever, chills, something's going on. We better get him on antibiotics, we better we better start doing things in a hurry. But they didn't. And he died. And he got sepsis. And what is sepsis. Sepsis essentially, occurs when chemicals released into the bloodstream to fight infection trigger inflammatory responses throughout the body, essentially, it's a condition when you have an out of control infection, and it starts affecting all of the organs and basically leading to organ failure and death. But if that's what happened, and so the questions were in this case, this was a tragedy. This is, as I said, a young man, a young family and Heidi Brown 00:11:44 And he had an identical twin brother, which was another unique feature of the case. Richard Bogoroch 00:11:48 It was very, very, it was a very interesting case. So the so the question is, did the doctor and again, we've anonymized, the doctors names, and we're giving you a snippet a summary of what the issues were given the limited time that we have. The question was did the doctor the ER doctor breached the standard of care? And did the breach cause him to die? Would he have lived if he would have been properly treated? And this is what we learned, as in a splenic patient with a fever, tachycardia. It's a high heart rate, nausea, and body aches, which were all signs of symptom toxicity. Our expert asserted that our client that Mr. Hunter should have been started on broad spectrum antibiotics immediately and intravenously, even before the results of any tests were obtained. And even if no obvious source of fever was identified, why, key fact? a splenic? You got to ask yourself questions in which the merge doctor didn't ask. He's a splenic. Okay, what's the consequence of sending him home? Those questions that thought process that, you know, methodology, obviously wasn't done. And what happened then is he died. So we had experts, and we had infectious disease experts. And we, we under we put the case together, but was what it was important in all these cases, is the discovery process. Because the discovery process also sets the tone for expert opinions, they have to review the transcripts, they have to review all the records. So what you this case, in terms of standard wasn't, wasn't all overly complicated, but it's a good example. It's a good example of what you have to do in running a case against an emergency physician, you've got to obviously, know, before you even get to discovery, before you even draft the claim, you have to have a very good understanding of the medicine and what the standard of care requires, by knowing that it certainly establishes a proper framework for your discovery, and getting the admissions you require and then sending the transcripts to the expert in the expert pining. And this case settled at a mediation. And it settled in about, you know, in less than about five years, four or five years following the death of our client. But sepsis is so important to you have to you have to if you're thinking about sepsis, you have to be able to act fast. And we have a like a little slide, which goes which explains what you have to do at the with with respect to sepsis. And again, time is really important. You really have to you really have to understand the signs and symptoms of sepsis. You must order tests to determine the source of infection. then you have to start appropriate treatment. And that's so important in terms of any case of the ER. But this again, as I say, is not an example, I would say, of an overall difficult case, it's all these cases are difficult, but there's different degrees of difficulty. And this was, I mean, I don't want to minimize it, you have to put the case together, you have to get to the proper discovery, discovery in medical cases and all medical negligence cases, in my long experience is critical. There are very few instances where you know, we don't care what what emerges from discovery, because it's so blatant, obviously, in a negligent surgery case, when they, you know, the prototypical they they operate on the wrong limb, or they made such a blatant error that, you know, you don't discovery is not critical. But in vast majority of cases, the discovery process is critical. Because it sets the stage for successful resolution of these cases, these cases are labor intensive. Well, this case is I say, was not overly complicated in terms of the elements of standard of care causation. They they're causation expert, we had, like leading causes we had leading experts in, in the field. And one of the things I should mention, if you're having if anyone who's tuning in is handling is starting out and wants to handle now, medical malpractice cases, you need top experts, it's the way you need highly credentialed top experienced experts to review the case, and to provide a and to provide a thorough fulsome, well researched opinion. So at the end of the day, after we got our expert, we did the discovery. And we got our expert opinions, we settled the case of mediation. And that's where that's where the next challenge was, because in any family law claim, I mean, you're dealing with spouse, children, parents, siblings, you have to make sure you have you know, everything's prepared. We like also getting we also like to get, make sure that the the family members who are also claimants are, are brief for their discovery. And they understand we get the actuarial and we get the services report. And we also, of course, in terms of handling these cases, get a photographs, and we create a complete start to finish brief or story because our jobs as lawyers is to tell stories, is to persuade, but telling a story in an effective way, again, so we we did everything we needed to from start to finish. But it's very helpful when you're starting the case, to have your checklist of what all the things you need. In terms of liability. When I say breach of standard causation, and of course, all the damages, and it's very good from the early from the get go. Once you determine after you get your employment, once you determine whether or not you have a case, to proceed to set a timetable, at least internally in your own office for obtaining the reports for obtaining the family, the actuarial and other damaged documentation. So what we did in this case was we provided our client got the compensation, she was very young as well. Compensation. They record she required to be able to live a life of dignity as a result of the death, loss of her husband and the funds that our children needed to compensate them for the loss of their father. Now, we talk about that in these cases, all we can do is get money. These are tragedies, the family even though we settled the case, the loss continues every day. And and we know that not a day goes by that our the client and her children don't think of what they've lost and their other family members. But our role as lawyers is to take these cases to move them we think as promptly as we can through the litigation process. And it still took almost five years not quite. It still took almost five years, and to get them to compensation, that they can have a meaningful and dignified life, recognizing that their loss is immeasurable, incalculable and is with them every day. But we at least take comfort from the fact that as lawyers, we're able to provide, as they say a measure of closure, at least one aspect of closure and to provide the compensation necessary for our clients to live a dignified life, which is the core of what we do in all of these medical malpractice cases, including the very significant cases where they require a great deal of care so they can have a dignified, dignified life when people are brain injured or children are brain injured. That's the goal of what we to try and get them the compensation so they can live a meaningful, dignified life. We've seen so many cases where from the time the lawsuit starts to when it's completed, our clients are going through misery, that they don't have the funds that they need for their own care, that they don't have the funds to compensate them for the loss of income. And so we try and we make it really one of our core objectives is to the extent possible, to make sure these cases are moved with compassion, but promptly through the litigation process. I think I've I've said, Heidi Brown 00:20:36 Before we go to the next case, I just wanted to add that this this case had a very interesting damages issue that arose on the contingency of remarriage, that was took up a fair amount of time in in terms of the resolution process of the case. And, and the various experts had very different views on the contingency of remarriage, which is typically sought, frequently by the defendants in actions arising from deaths of spouses and the discovery evidence from our client was that she had no intention of remarrying. And the experts really had diverging opinions on that and the assumptions arising from the income that that potential spouse might have earned. So that was an interesting aspect of the case as well thought, Richard Bogoroch 00:21:26 Thank you, Heidi for reminding me about that. That's true. The the continuous every marriage, where the surviving spouse is relatively young, is is a very live issue in these cases. And you we get all we each of us, but I say us and the defendants counsel, the physicians counsel, we have the array of cases, and we're arguing cases, but in the end of the day, these are issues for the stuff of mediation, and we were able to resolve the case. Recognizing that we had different viewpoints on some of the damages issues. Heidi Brown 00:22:01 Let's talk, I think you're going to now move on to talking about one of our stroke cases. And I think it's fair to say the cases that we commonly see among the cases that we commonly see arising from emergency room supply. Stroke cases are among the most common. And they seem to come about when people are not being either triaged at the initial visit in the correct way, or once they are under the care of physicians, symptoms are being missed. And I think it's important before Richard gets into the analysis of this case that we are all aware that the Canadian Medical Protective Association in 2020 2021 discovered that most medical malpractice cases that had to do with stroke had issues with the actual diagnosis itself. And being able to recognize symptoms of stroke and quickly receiving the medical attention that people need is really the key to minimizing damages due to stroke. And, of course, that can save lives. The delay in treatment, which we know includes misdiagnosis can result in lifelong disability and death. And out of the cases that the CMPA reviewed in a recent review in 2020, early 2021. More than 25% of these cases showed common symptoms of headache, dizziness, nausea, vomiting, and the delayed presentation with longer symptom duration, which spanned over days and weeks was also observed in these studies. cases where there was an atypical presentation of stroke symptoms were easier to defend on the physicians part, because there was sufficient neurological assessment and the right discharge instructions. So where plaintiffs tend to be more successful in these cases are when we can establish circumstances where doctors failed to recognize the seriousness of a patient's condition, like the headache and focal neurological signs, or where the focus was on a specific diagnosis like a migraine or psychiatric disorder without considering the possibility of stroke. Other cases were neglecting to consider the possibility of stroke in patients with high risk factors like smoking, obesity, hypertension, or PE or physicians or healthcare practitioners who didn't perform a wholesome fulsome physical examination including vital signs, speech, visual field assessment and orientation. So I'm going to turn it over to Richard to talk about a case that we recently settled called again, we Have anonymized the names this case is called Geller. Richard Bogoroch 00:25:03 Thank you Heidi. But before I begin Geller, I want to read to you something from the National Library of Medicine, the National Center for Biotechnology Information. And the article is diagnostic errors in the emergency department is a systematic review. Now, we don't have something like that I believe in Canada. And this study I believe, was from 2015. But we'll take just a few minutes before I get into this case, because I think you'll find this very interesting. This is what I'm going to be quoting from it. And later on, we'll see if we could have it sent to you to the registrants to the attendees of this webinar. And I'm quoting overall diagnostic accuracy in the emergency department is high that some patients receive an incorrect diagnosis and say approximately 5.7% Some of these patients suffer an adverse event because of the incorrect diagnosis. And they wrote about about two are about approximately 2%. And some of these adverse events are serious point 3%. This translates to about one in 1880 patients. This is an American statistic, receiving an incorrect diagnosis, one in 50, suffering an adverse event and one in 350, suffering permanent disability or death. These rates are comparable to those seen in primary care and hospital inpatient care, inpatient care. And the authors of the study wrote, We estimate that among 130 million emergency department visits per year in the United States, and I believe this is from 2015, that 7.4 million, or 5.7% Patients are misdiagnosed. 2.6 million or 2% suffer an adverse event as a result, and about 370,000.3 0.3% suffer serious harms from diagnostic error. Put in terms of an average emergency department with 25,000 visits annually, and average diagnostic performance each year this would be over 1400 diagnostic errors 500 diagnostic adverse events 75 Serious harms, including 50 deaths per emergency department. Although overall error and harm rates are derived from three smaller studies conducted outside the United States bracketing Canada, Spain and Switzerland. I think with combined sample size of 1007 58 study methods where prospective prospective and rigorous all three were conducted University Hospitals and for the two studies used to estimate harms about 92% of clinicians under study those institutions had full training or thermal formal certification and emergency medicine. Five conditions bracket I mean, stroke number one is stroke. Number two is myocardial infarction or heart attack. Number three is a aortic aneurysm or dissection. Number four is spinal cord compression injury. Number five is venous thromboembolism account for 39% of serious misdiagnosis related arms. And the top 15 conditions account for 68%. Now I'll just jump along stroke, the top serious harm producing disease is missed an estimated 17% of the time. So that's something which will provide and I'll give you the the URL for this study, which I think you'll find very interesting. Maybe I can paste it in later on into A into the chat. But in any event, let's talk about it. Heidi Brown 00:28:35 Before you turn to Geller. There is a question in the in the gallery about hunter who was responsible for obtaining the patient's medical history to determine that he was a splenic. Richard Bogoroch 00:28:47 It was the it was the physician who examined him and knew that I think the nurse sorry, if I recall, it was the nurses made a note about that it was available for the doctor and the doctor was aware of it. Heidi Brown 00:29:02 Yeah, and the the crux of our standard of care case was that that the emergency room doctor was aware of the a splenic condition and nonetheless discharged him without prescribing any IV antibiotic medication. Richard Bogoroch 00:29:19 See if I can Richard Bogoroch 00:29:25 get my one moment. There we go. Heidi do you recall you have to remind me about that case you were on that case too. But I believe it was Heidi Brown 00:29:34 We also said the family doctor in that in that case, too, for various reasons because of failing to advise our client for the need to update his vaccination. Richard Bogoroch 00:29:46 All right, let's we're gonna go now and talk about the Geller case. Now. Geller was a case from 2015. And it was a case that was going to go to court on February 6 2024. Double check the dates, and it's settled. It's settled on the Friday before was supposed to go on February 5 2024. And it's settled Heidi Brown 00:30:16 on the Friday on the Friday night before. Richard Bogoroch 00:30:20 And again, we're anonymizing certain things, we keep things confidential, in terms of names, physicians, hospital, and all we want to do is give you the basic facts for educational purposes. What happened was this, Mr. Geller, the 10 of the emergency department complaining of nausea, headaches, dizziness, vomiting, he was here, this was in the middle of the morning of the of the 25th of January. He sees the merge doctor and the merge doctor, basically, you know, figures that he's got, you know, gastroenteritis, he's got like a stomach flu. That's what they thought, and no neurological examination. And in fact, the notes in this particular case, and he's going to maybe talk about this later on. The notes were not good. The notes were extremely sparse. The the symptoms that our client had were not recorded. And the and that we believe, and the lack of physical examination, the lack of having proper notes, which would have helped with a dark differential diagnosis, we believe ended up leading to his death, which we'll find out in which we'll hear about shortly. So what happened is he sent home he sent home you got stomach flu, we're giving you some medication to deal with your to deal with your nausea. And to deal with you we we think of stomach flu. So he goes home. And he arrives on any arrived Salman, obviously, in the middle of the you know, in the early mornings of January 25. And then what happens is, some few hours later, he has to go back to the emergency department because he's feeling a hell of a lot worse. He's got headaches, vertigo, dizziness, vomiting, he was unable to walk, he was unable to unable to walk. And his blood pressure was very high, I should point out when he was in the emergency department. He was also on the when he went there on the first occasion, he had difficulty walking, he couldn't even walk unaided without the assistance of, of his wife and, and, and, and a friend who was there with him. He was in bad shape. But that wasn't even the walking test was never even done. A neurological examination was never done by the ER doc. And it should have been done. And so what happens is, he comes back the next day sees by the doctor and the other door and the other EMR. Let's go back to the other slide, please. He sees another ER doctor, and he knows that he's got a real real problem and he's unable to walk. He's really He's really in bad shape. CT scan is done. And the reporting radiologist noted the presence of left cerebellar infarct with associated Hydrocephalus is getting swelling on his brain. Despite the CT finding, known as noting a left cerebellar infarct, he, he was returned to the ER and he was kept in ER. So what happens next is what set the stage for his death. He's really having difficulty breathing. He's becoming a conscious, they do and they do. The Emerg doctor does a intubation. And his blood pressure is extremely high. It's given medication, and they and the emergency doc then pages, a intensive historic critical care physician and the critical care physician consults with a doctor and says, You better get a neurosurgery consult right away. That's not done. And what happens is they're they then decide, well, we can't do anything. We might as well wait and do an MRI. So instead of arranging an urgent neurosurgical consult, they wait. And they wait. And they wait and he deteriorates. And, and by the time they recognize the gravity of the situation They then it's too late, what happens next, but I'm giving you a very abbreviated version for in the interest of time, what happens next is if we go to the next slide, what happens next is Richard Bogoroch 00:35:22 arranging the neurosurgery, they get him to a neurosurgery Center at 5:20. And this has been going on but really, the day before, and, and by the time he arrives, it's really, they can't do anything. It really cannot do anything. His his brain swelling is so severe, they cannot correct what has occurred. And they cannot take action to save his life, because he's too far gone. And then he dies. A few days later, he's been declared brain dead a few days later. So this case illustrates this case illustrates the negligence wasn't and failing to diagnose a stroke, the negligence was failing to do a neurological examination and not ran because that would have been twigged that this person is having signs of a stroke, or it could be having signs of a stroke. And we need to get him admitted. And we need to have tests done. And we need to get moving very quickly. So in the stroke, neurologists of the stroke experts have a phrase, time is brain the longer you wait, the worst damage happens to the brain. And this man had a done a neurological examination, it would have revealed and have the doctor properly observed in the first ER doctor that he was unable to walk unaided. You ask yourself what's going on here? This sounds more like this is not necessarily this is not gastro. This is not stomach flu. This is not stomach flu. And what you need to do is if you and if you figure out something's going on, you order a CT angiogram. And that determines what's going on with his brain. And then you make sure he gets to a neurosurgery neurosurgical center, and there are many of them in Toronto than in the Greater Toronto Area, stat right away. And that wasn't done. And by the time as I say, and again, they recognized and it was too late, but they ought to have recognized the gravity of the situation by doing a proper examination and arriving at a accurate differential diagnosis. Again, the negligence of the first emergency doctor wasn't in the failure to diagnose a stroke. The failure was to do take a proper history to do a neurological examination to determine that there was a neurological, something neurological was going on with an order the right tests, the right diagnostic tests, and not send them home with medication for his stomach flu, which wasn't stomach flu. He didn't even have the signs of gastroenteritis. And that and that's what happens, as we said, in stroke cases, or recognize it, this is not a stroke case, per se. This is he ended up having a stroke. But what was happening with the issue was failure to diagnose a neurological problem. And the second issue was, once they recognize that, what were they waiting for, in arranging their neurosurgical console? Have they done so right away? All the evidence pointed in, our client would have lived, he would have lived and he was a young man who died. So let's go over. I think I'm, you know, let's go over what our experts told us on what we learned about the first ER doctor. He failed to perform a neurological examination, including a gait assessment that's walking, having somebody walk, failure to pursue complaints of dizziness and headache. Those are red flags as well. Failing to take an appropriate history, the notes, were so sparse. It's it, you know, and we can talk about that later on. And failing to even ask yourself the question, what is their neurological cause for his present for his presentation? And you got to generate a differential diagnosis. You got to figure out the possibilities. The worst, from worst, you know, from first to worst, really from worst to first and basically, you basically got to find out from the word Symptoms to the less worse symptoms. And you've got to start asking yourself those questions. And, again, the note taking where we're the note taking was so deficient, it was not supportable by anyone in terms of how the, the emergency doc took notes, and of course, the history was, was was was so deficient. Now, the other emerged doctor also was delaying, he was told to contact neurosurgery. And once he knew about the CT at 11, he immediately should have sprung into action. And it showed a seat it showed us less cerebellar infarct, what are you waiting for? Time is brain, you move quickly, and you and you get it to the to the center where he can be treated. And there's some other factors as well. But those are the things it's a delay. It's not asking yourself that questions, not considering the consequences of the presentation. And coming to what I call is a rush to judgment or almost tunnel vision. Okay, first doctor, it sounds like it's a stomach flu, go home, without even doing a proper examination, having notes and asking yourself, maybe it's more than that. What is the effect of the dizziness? All right. Now, we also had something about the about the critical care specialist. And those are, you know, the, those are other factors, but you know, they were all negligent. The breaches of breaches of the standard were were certainly strong in this case. And at the end of the day, prior to trial, as I said, the the case settled. So that's really what it is. And that just highlights what I was saying before. The doctors, nurses and other health care professionals are all human. But when you you reduce error by taking proper histories and writing things down, and considering okay, how does dizziness and inability to walk and turn to a diagnosis? Is it really stomach flip? No. If you look at gastroenteritis, this is not this. This is not necessarily. This is not gastroenteritis at all. So you have to ask it. But if you're not geared to ask yourself the right questions, you focus on wrong and you focus on the wrong question. And you focus on on a decision, which is not based on the history, and is certainly not based on the presentation. And you end up making mistakes, which are costly. So I think we're really I've talked way too long and hardy has a case to talk about. So Heidi Brown 00:42:51 I do want to talk about Thank you, Richard. But I did want to just jump on this notion of charting and, and just talk about it for a moment. In the context of what as plaintiff lawyers, we often hear evidence from physicians of their usual or invariable practice, we see it time and time again in the context of medical malpractice cases. And they tend to, in my opinion, provide physicians often with a real advantage at trial. Typically, doctors don't have a specific recollection of their dealings with patients. We know how busy emergency rooms are, and they are entitled to testify in accordance with the law as to their ordinary or invariable practice. And that evidence may well contradict the patient's evidence of the very same version of events. And it does carry a great deal of influence with the court and making findings of credibility of the parties. And we know that evidence is permitted under the Turkington and lie case, which is a 2007 CanLII 48993 If people want cite. But I think the takeaway here is that on Discovery, you have to focus on the written record, particularly if things aren't made content records aren't made contemporaneously with the with the events in question. We know that courts are far less likely to give that evidence of invariable practice a great deal of weight. And we know that there the Ontario Court of Appeal has held that the courts don't have to accept that evidence of act as accurate. If if that evidence doesn't necessarily seem to be complete, so the courts aren't bound by it, but nonetheless, it's powerful. So we want to attack that evidence. If the notes are poor, if the notes are not made contemporaneously if the notes are incomplete, Eat, and do our very best to try and focus on the charting and the delay and the diligence of the charting. So I am there is a question. Just before we go on, Richard, we may want to leave it till the end. It's it's, it's to deal with bias and prejudice and strategies to deal with that. I think maybe we should leave that to the end and try to get through our last case. And if we have time, we are going to address that, that question about the appropriateness. What strategies might be appropriate when bias or prejudice are part of the factual matrix or background that may have led to the negligence because we do know that people are human, as you say, and that does enter into the mix. We have talked about the serger do case, in other presentations, but we wanted to reiterate a few important principles that come out of surgery Jao in the context of multiple tortfeasors, one of whom was the emergency room doctor, which led to the tragic death of a 35 year old woman who was our client, in this case, resent us or do at age 35, she was taken by ambulance to William Oastler hospital, she was in desperate need of medical care and attention. And sadly, within nine and a half hours, she had passed away. And the real crux, and at the heart of the issue of this case was how miscommunication which is alive and well, given that there are 6.5 million Canadians who don't have a family doctor and find themselves in our emergency rooms. Miscommunication, causes people to slip through the cracks. And ultimately, we argued led to successfully argued that led to the death of Rosanna, her husband brought the lawsuit against the emergency room doctor and the doctor who was passed on whose care was passed on to him after the emergency room doctor left. And the basis of the plan was that doctors the two doctors breached their standard expected of them in large part in the transfer of care and in failure to read blood results that would have solved the puzzle told the story and would have avoided her death. So when she arrived at the hospital, the emerg doctor Dr. Milady, diagnosed her as suffering from viral pericarditis, which is an inflammation of the heart. She was presenting with flu like symptoms that are very similar, similar to anybody presenting with flu. And he ordered tests and the two main tests that were at the heart of this case, were a test called the lactate test and an ABG arterial blood gas test. Both of those results were posted on Meditec, which is the hospital's online platform. And anybody who has the password can access those results at any any computer. The results were high and abnormal. And what happened here was that doctor Milady, who was the ER doc who ordered those tests, left the hospital before reading them, despite the fact that they were available, and failed to give proper instructions to Dr. Sawyer, who was respirology just to look at those tests when they became available. The fact of the matter is that the results were available, they ought to have been read. It was a series of errors that led to these test results not being read and interpreted. And by the time that they were it was too late because she didn't just have a virus and an inflammation. She had a very serious inflammation of the heart muscle, which was caused by a virus called myocarditis, and resulted tragically in the death of a 35 year old woman. So the issues were standard of care and as always, and causation. And there were very highly and well respected experts on both sides. But the real key to the case, in my view was the cross examination. That was done in the by Richard in the trial, because he was able to extract incredible admission shins that allowed us to, to win the case and many of those admissions surrounded involved. Knowing about Meditec being aware of it being aware of what is required when you're transferring care from one doctor to another triaging a patient in this case, she was at the highest of acuity and ensuring that there is a plan in place for the transfer of care, and how to interpret results. Both both the defendants and the experts made helpful admissions that enabled us to weave together a narrative in the closing that carried the day. Despite the fact that after 19 days of trial, the defense argued that we had not adduce sufficient evidence to prove causation. And we faced assaulter in Hurst motion, by the defense, which, over the last number of years since this case, which was in 2015. Over the years has become almost par for the course that even if you make out and you're successful, you're almost invariably going to be met with a with a motion by the defense that you didn't make out causation. That seems to be what we're seeing time and time again. We had justice ganz as our trial judge, and in the motion to set aside the jury verdict, which is now known as the Psalter and hers type of motion. Just as ganz did find that there was some evidence Taken as a whole, which would permit the jury to conclude that, that our client Rosanna would likely have received some form of mechanical assistance in another institution where she would have had to have been transferred to during that very, very small window that she would have had to live, which was, in this case, 10 hours. There was some evidence given by our emergency room doctor, by our expert on the operation of critical which is a provincial agency that is tasked with the responsibility to organize and transfer patients from one facility to another. And that evidence that was given was enough for justice scans to piece together. Other facts that other comments that were made by experts, with the evidence Taken as a whole that had Heidi Brown 00:52:39 the effects of using certain types of medications, had they been administered, and had she been transferred on a more likely than not analysis, she would have lived had she been transferred. The case was appealed to the Court of Appeal. And there are some really interesting takeaways. This case was tried at the same time at Saks and Ross at in the in fact, it was in the courtroom immediately next to ours that two cases were being tried at the same time and Saks and Ross, for all of those on the program are familiar, have some very important causation findings that were being decided by Justice Darla Wilson, as she then was and and justice scans simultaneously. The comment by the Court of Appeal that was important here was the jury question that we presented to the jury did not use but for language. And Sergio has clarified that but for language does have to be used in the context of jury question. But there were some other interesting takeaways about polling the jury and the charge to the jury with regard to the charge don't have to pick it apart, and so on about the number of words dedicated to a given issue. It needs to be read as a whole, the defense criticized the charge. And the Court of Appeals said that the adequacy of a jury charge on a particular issue is not assessed by the number of words that the trial judge devotes to any particular issue. It has to look at the context as a whole and the overall fairness of charge. And this was the first time I had seen a jury polled in all the years that I've done jury trials, and it confirmed that a that a trial judges inherent jurisdiction to pull the jury to ensure a fair trial. It would have been open to the judge to pull if there was a concern about five jurors agreeing on the bottom line answer that it was correct not to pull to ensure each juror agreed on each of the particulars. And the court referred to that as an permissible purpose. So there's an interesting discussion about what are the appropriate circumstances To pull the jury it was a very tense trial. There were reports attempted to be exchanged in the middle of the trial. There were arguments on every point. And the takeaway is that, in when you're trying to build a case for causation with multiple tortfeasors, you really have to make sure you've got your pathway to success and that the chain is not broken. And we were very thrilled in this case to get a result for Roseanne is husband, Richard, I'm not sure if you want to add anything. We only have 5 minutes left. Richard Bogoroch 00:55:41 There was only a highly complex case, as Heidi pointed out, where we had arguments on so many legal evidentiary issues. And and that's the way medical malpractice cases in my experience are fought. There are a lot of you know, there are a lot of battles during the course of a trial, as they say on evidence on there's motions during the trial there. These are very hard fought cases. And it was a very, very long and difficult trial. Very happy that we want our client one. We were fortunate that for our client who won the case, and that's searched out, but I I think it's a case that you should read. It's a very interesting case. Tripoli, Justice Gants is trial ruling on the Salter And Hirst matters. So it's, it's very instructive. I think, why do you want this? Is there anything else? Heidi Brown 00:56:45 Yeah, there was the question about bias. And I just wanted to to mention that people are human, and they are prone to their their same kinds of biases in the ER that we see in the general population, mental people's mental mental health issues tend to creep up as an issue of bias. And we've seen in real life in our in our practice and the calls that we get people of diverse cultural backgrounds and lower socioeconomic backgrounds. Transgender people have been rude. I think it's although it's anecdotal, I have no question that that these types of biases occur over and over and over in the emergency room, and that members of marginalized groups are disproportionately affected with negative treatment and consequently, outcomes in the emergency room. In terms of strategies on how to deal with that. Statistics, papers, we're starting to see more of them. I don't know if there are, is there anything recently put forward by the college, but papers that are prepared, that are peer reviewed? Resources? These are the kinds of things that we that we would probably look to and anecdotal evidence of people, if you want to put that argument forward of other people who may have experienced that type of treatment. It's not easy. It's it's difficult. I don't know, Richard, if you have any strategies that you've encountered in your practice? But but but it's, it's a challenge, it's a good question that I don't have all the answers Richard Bogoroch 00:58:45 You know what, I can't comment on it, because I don't have enough data to even, you know, offer an opinion. Is there bias, I believe there's bias in every aspect of our life. And I, I, it may very well be that people who are marginalized somebody points out, are are not receiving the care and treatment that they otherwise should. more research and more work has to be done in this field, so that we can address it and come up with solutions and strategies. Heidi Brown 00:59:24 I would suggest is that they believe Richard Bogoroch 00:59:26 One sec. Richard Bogoroch 00:59:29 One sec. I do believe that I do believe that it exists. And I do believe that marginalized groups in my again, I have no statistics to show it. But I believe that marginalized groups do face bias in healthcare as they face it, I think in other aspects of life. And I do believe that this is an issue that should be further studied, and in depth studied. Sorry, Heidi, go ahead. Heidi Brown 00:59:59 I didn't mean to draw. But I think I think that what I tried to tell everybody that I know is if you are going to find yourself in interacting with the medical system, whether it be in the arm or anywhere else, you should have somebody if whenever possible with you as a witness, who can even take some notes. And if you feel that you are experiencing that type of bias, having another person there as a witness certainly would be a huge help, if that would be the strategy that you wanted to advance at trial. Mallory Hendry 01:00:34 Lots of you we oh, sorry, Richard, I didn't mean to interrupt you. I was trying to squeeze in another question. But if you have more to say Richard Bogoroch 01:00:41 No, I all I would I do want to say is that. And I repeat again, one of the most important takeaways from this webinar, is that if you or a loved one, attend an emergency room, please make sure that you're engaged in the process. You advocate, you make sure that the history is addressed. That is, it's not easy, but it's important. Mallory Hendry 01:01:07 Okay. And did you guys want to tackle the impact of poor record keeping on medical error just before we go here? Heidi Brown 01:01:15 I think we addressed that earlier in the presentation. Mallory Hendry 01:01:18 Okay. All right. Well, then, thank you so much, Richard and Heidi, for sharing your insight and expertise today and to everyone in the audience for joining us. Keep an eye out for other upcoming webinars and enjoy the rest of your day. Heidi Brown 01:01:30 Thank you. It was a pleasure. Richard Bogoroch 01:01:32 Thank you, everyone.