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Medical
Malpractice
(Should I sue or shouldn't I?
My Story (A Summation)
On March 10, 1986 I was admitted into McKellar General Hospital, Thunder Bay Ontario for routine orthopaedic surgery to correct "claw toe" deformities. I was admitted under orthopaedic surgeon, Dr. R. Prior to admission I had undertaken a minor examination by Dr. R at which time he recommended the surgery, which was explained as routine. It would entail the cutting of tendons to the toes and possible cutting of bone in order to straighten the toes.
Surgery was performed on March 11, 1986 and the day was virtually uneventful. I had noticed a large, bulky plaster cast had been applied from the knee down and actually covered the fifth toe completely. The balance of toes were covered approximately two-thirds. Each of the visual toes except the fourth had a steel pin extending out of the end. March 12, 1986, despite being on an extremely powerful painkiller, I passed out from unbelievable pain.
During the one and only visit during hospitalization, I explained to Dr. R the pain that I had experienced. He showed little interest and did not actually even check the foot. On March 17th or so, I had the cast removed and what was found was most disturbing. The foot looked absolutely disgusting; the fifth toe was black, shrivelled and scaly. The second toe was black and blue. I had gangrene!
Without Dr. R examining the new situation, a new cast was put on and I was discharged the following day! Despite numerous visits for post-op follow up Dr. R left the gangrene for approximately 45 days.
On April 30, 1986 I met Dr. P as referred by Dr. R for an unrelated problem. When Dr. P attended he was much more shocked and interested in the gangrene. He stated that they had to be amputated and did so the following day. I saw Dr. R from this point on, only when Dr. P sent me to him.
Dr. P had problems with ongoing infections and debridements at the amputation sites. He discovered bone that had been cut and was not mending. He sent me to Dr. R who prescribed insoles that only made the situation worse.
Over the period of a year or so and under constant medical care, various doctors (i.e. Dr. P and Dr. E, in Scarborough) tried to get the foot to mend. It did not.
In January of 1989, under the care of Dr. F, the foot became extremely swollen and swelling appeared up into the groin area. Immediate admission to hospital and a list of test were performed only to find that osteomyelitis had infected bone throughout the foot. Two orthopaedic surgeons and one family physician recommended amputation. A full symes amputation of the left foot was successfully performed, a prosthesis fitted and efforts to return to a "normal" life were started.
What would you do, sue? I did!
Now the rest of the story.
Upon the verbal support and suggestion of Dr. E, in Scarborough I decided to file a complaint with the Ontario College of Physicians and Surgeons. I also filed a Civil Lawsuit action after exhausting almost every legal firm in Thunder Bay. A legal aid certificate supported the civil action.
The College of Physicians and Surgeons sided with the physician (as expected). I appealed to the Disciplines Committee. Since I did not have any finances I was unable to accept an invitation to defend my appeal. Dr. R. and attorney attended and were successful. I was not aware that the committee should have covered my costs. It was a dead end.
The attorney who had accepted my case had an 'intern' doing the leg work. The attorney had attended a case in England and upon his return announced his retirement. My case was passed over to a disabled attorney. The disabled attorney ended up having my legal aid certificate cancelled, convinced me to release the hospital from liability (big error) my parents and family claims cancelled and actually got fired from the firm (reasons unknown). The owner of the firm informed me that the only way he would take on the case is to receive a $15, 000.00 retainer. As I explained that this was impossible, as I had lost everything I had, he suggested I represented myself. I undertook this for approximately the next two years.
When I filed and had my pre-trial, the judge, Justice k, asked permission of Dr. R's lawyer if he could recommend and contact an attorney for me. He received permission and within a week I had Mr. Lang Q.C. secured to represent me.
Our first effort to receive a medical report in our favour was made through a firm in the United States. There was no assistance forthcoming. Our second effort was with a physician in Sault Ste. Marie, Ontario. This physician spent approximately thirty days examining files and reports. He authored a report that was very detrimental to the hospital, Dr. P and Dr. R. The defence showed an interest in settling. Unfortunately this physician suffered a major aneurysm. Since he was not available for cross-examination his report was not admissible.
I then went to Chicago to visit a former Canadian physician whom had offered his support. After a personal examination and record examination, he listed numerous questions that needed to be answered but did not answer them and actually stated that he was far too busy and expensive to get involved. He referred us back to another physician in Toronto. Dr. Rg from Sick Children’s Hospital did a report and became our witness.
On approximately October 8, 1994 we went to trial. On October 24, 1994 the jury returned with a verdict of medical malpractice against Dr. R for the causing of gangrene, lack of post-op care and the loss of my foot. They released Dr. P from any responsibility. They awarded myself approximately $400,000.00 without any punitive damages (not claimed).
The two attorneys for the physicians stated that they saw no bases for an appeal but that it would be up to Dr. R. Dr. R apparently received special funding fro the Ontario Medical Association and filed the appeal with the attorneys’ endorsement.
Almost three years later the Ontario Court of Appeal heard the case. We were ambushed. The physicians’ attorneys presented arguments not previously documented (against procedure). When my attorney tried to correct this we were informed our time was up and no more submissions could be made. Approximately three months later the Court of Appeal presented their decision: Guilty for causing gangrene and lack of post-op care BUT not responsible for the loss of the foot?????
We were stunned, as typically a jury decision would not be touched. Plus this didn't make sense: Guilty for the cause but not the amputation?
After consulting with a legal firm in Ottawa, Ontario that specifically deals with the Supreme Court of Canada we were advised to file and that this attorney felt we would definitely be heard. Approximately a year later the Supreme Court of Canada dismissed our application for leave. I was told that they probably didn't even look at it because it did not carry a national issue. All attorneys involved in the application thought that jury integrity was a National issue?!
I have written to the Justice Minister, Attorney General of Canada for assistance in having the Supreme Court of Canada put my case back on the list. I have met with a refusal of assistance (nothing she can do?).
I finally wrote the Supreme Court and they suggested that I apply for reconsideration for leave to appeal. I undertook this in the fall of 1999. Five months later they sent everything back to me stating that I could not apply for reconsideration because my case did not carry National importance! Talk about getting screwed around!
Isn’t jury integrity of national importance. The jury had the opportunity to receive and evaluate all the witnesses and the evidence. Via this they found Dr. R. totally and independently responsible. The Court of Appeal made a major error by upholding the cause but not the final effect; i.e. amputation of the foot. They even quoted wrong information that they construed as being from the trial but was only from the defence in their appeal presentation.
I cannot get the Supreme Court to review this case because they say it doesn’t carry National significance in any law or miscarriage. DO YOU AGREE? SHOULD THE JURYS VERDICT NOT BE UPHELD?
I need your help. Could you
please forward your opinion via e-mail to the Supreme Court of Canada at
Registry-Greffe@scc-csc.gc.ca
I feel that if enough of you flood the Supreme Court Registrar and the Attorney General’s office and the Prime Ministers office along with the letters I have forwarded to the Prime Minister, the Attorney General and the Chief Justice of the Supreme Court something may finally be done. It has just entered its’ fifteenth year!
You can email the Attorney General/Minister of Justice Hon. A. Anne
McLellan at webadmin@justice.gc.ca
You can email the Prime Minister, Hon. Jean Chretien at pm@pm.gc.ca
Just remember to put it attention her/him on the subject line!
If you wish to contact me you can at Lawrence_Etienne@hotmail.com
I would love to hear from you with your opinions or the actions you have taken.
You can also write hardcopy to the Supreme Court of Canada, 301 Wellington St. Ottawa,ON K1A 0J1 or the Chief Justice of the Supreme Court at the same address or the Attorney General of Canada, Hon. A. Anne McLellan, 284 Wellington St. Ottawa, On K1A 0H8.
Ontario Court of Appeal file #C20207
Supreme Court of Canada file #26627
JUSTICE MUST PREVAIL!
LET THE PEOPLE BE HEARD!
