Bogoroch & Associates notes a pandemic-induced upsurge of potential medical malpractice cases

Efforts should have been made to ensure timely assessments, timely diagnoses, and timely treatment

Bogoroch & Associates notes a pandemic-induced upsurge of potential medical malpractice cases

This article was provided by Bogoroch and Associates

Over the past three years, Bogoroch & Associates LLP has experienced a tremendous increase in consultation calls from people alleging they or their family members experienced negligent medical treatment. And while they don’t yet have a fulsome explanation, “We believe that the COVID-19 pandemic, for reasons I can't quite fathom, has marked the upsurge in these types of cases,” says Richard Bogoroch, founder and managing partner of the firm.

Bogoroch & Associates’ experience is not just anecdotal: according to the Canadian Patient Safety Institute, preventable medical error kills approximately 30,000 Canadians every year, with data from 2021-22 finding 1 in 17 hospital stays resulting in a harmful event, including healthcare and medication errors, infections, procedure-related issues, and patient accidents.

“We perceive what appears to be a decline in the standard of health care delivery across the board,” says Heidi Brown, partner at the firm. “We are being consulted on diagnostic errors and delayed diagnoses more frequently than before the pandemic, whether it be delayed diagnosis of cancer, stroke, or other similar serious conditions, missing diagnoses completely, or misdiagnosing something because the doctors don’t recognize the patient’s injury or illness correctly.”

There are multiple factors contributing to this uptick, including physicians opting to see patients virtually even when in-person was an option again, which may not necessarily provide the physician with the same understanding of symptomology, and the fact that while hospitals have a duty to provide care to all who attend the hospital, there have been many reports of people being left in ERs for long periods of time receiving no care whatsoever. Depending on the circumstances, doctors failing to order proper tests, not reviewing patient histories thoroughly, or failing to refer the patient to the appropriate specialist promptly could result in an influx of medical malpractice lawsuits.

The pandemic is not a viable defense

While it’s unclear how the courts will handle issues arising from the pandemic, “the pandemic itself is not a viable defense,” Bogoroch says, adding that “legally and logically, it cannot provide an excuse or justification for substandard care and treatment.” To invoke the pandemic as a defense would be an admission of liability, first of all. Still, healthcare providers also have a duty to care for patients regardless of outside factors, and “every effort should have been made to ensure timely assessments, timely diagnosis, and timely treatment.”

Case selection has become increasingly vital as Bogoroch & Associates fields the influx of consultation calls. Even for meritorious claims, significant delays in the court system, the enormous cost of running a trial and the fact that the expense of litigation can often outweigh the recovery for the plaintiff means taking on every case isn’t logistically possible — or advisable for the injured party who has to wait years for their case to be concluded, which takes a profound toll, Bogoroch notes.

Medical malpractice cases remain the most complex and challenging cases for plaintiffs due to the “stark and indisputable power imbalance between plaintiffs trying to sue doctors and hospitals with all of the resources that institutions such as the Canadian Medical Protective Association bring.”

The defense also has time on their side — “We've had more than one client die waiting for their case to be resolved: delay is the enemy of plaintiffs in medical litigation,” Bogoroch says, adding that filling judicial vacancies would go a long way towards improving timely resolution — and weighing all of these factors, the firm takes on cases where they can actually help the client as well as cases where there’s an important public policy or legal issue at stake.

“We are certainly affected by the suffering and stresses that our clients have endured, and if we can provide them with a measure of access to justice, we are fulfilling our obligation to make things better,” Bogoroch says.

People are beginning to ask questions

Whether it’s waiting months to be seen by your family doctor, long wait times at the emergency room, or unreasonable work environments, the delay in the Ontario healthcare system is, unfortunately, becoming normalized. But perhaps the increase in phone calls to the firm is an indication that people who have suffered adverse medical outcomes are starting to ask questions.

“People don't always realize the situation they’ve gone through could be a potential breach of standard that could translate into a compensable situation for them,” Brown says. “Certainly, in this new post-pandemic world where lengthy wait times, delays and long queues are the reality, people should be encouraged to call a lawyer to investigate a potential claim. “It's our honour to be able to investigate claims, wherever possible, by retaining highly credentialed experts to determine if they have merit.”

Bogoroch anticipates the outreach will continue to increase over the next year as those whose diagnosis was delayed or missed see their health deteriorate further and decide to seek redress for what they’ve been through. When the situation warrants it, Bogoroch & Associates has the financial resources, expertise, skill, and tenacity to move these cases forward.

“We've all been through the most grievous ordeal dealing with COVID-19, and though the pandemic’s full impact is still unknown, it will be felt for many, many years to come,” Bogoroch says. “It’s important to the public that there are lawyers like us and our colleagues at the Bar who are willing to shoulder the enormous expense necessary to provide access to justice because, without access to justice, there's despair, distress, and a profound loss of confidence in the administration of justice.

Richard M. Bogoroch is the founder and managing partner of Bogoroch & Associates LLP. He has over 35 years of experience practising personal injury and medical malpractice litigation. Richard is regarded as a leading personal injury lawyer. He has been recognized by the Canadian Legal Lexpert® Directory (since its inception in 1997) and by The Best Lawyers in Canada, two leading Peer Review lawyer rating guides.

Heidi R. Brown is a partner at Bogoroch & Associates LLP and is certified by the Law Society of Ontario as a Specialist in Civil Litigation. She was called to the Ontario Bar in 1993 and practised for seven years as counsel to the Children’s Lawyer, Ministry of the Attorney General for the Province of Ontario, where she represented the legal interests of children in various litigation matters.

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