Medical Malpractice: Stroke Claims

In Canada, stroke is one of the leading causes of adult disability and death. Stroke can have a debilitating effect on an individual’s quality of life, and can impact both an individual’s cognitive functioning and physical abilities. Given the significant impact that stroke can have, it is not surprising that the failure to diagnose, or adequately treat, a patient suffering a stroke is a common source of medical malpractice litigation. A brief summary of common issues that arise in medical malpractice stroke cases is set out below. 

Strokes Generally 

In simple terms, a stroke occurs when the blood supply to part of the brain is interrupted. This prevents the brain tissue from receiving adequate oxygen/nutrients and causes damage to the brain cells. Generally speaking, there are 2 types of stroke, each of which interrupts blood supply to the brain through a separate mechanism: 1) ischemic stroke; and 2) hemorrhagic stroke. 

Ischemic stroke is the more common type of stroke, and it typically occurs when a blood clot blocks or plugs a blood vessel in the brain. This prevents blood from flowing to the brain and results in damage to the brain tissue. Acute treatment for ischemic stroke is typically either: tissue plasminogen activator (a medication that breaks up blood clots), or surgery to remove the blood clot. The effectiveness of tissue plasminogen activator depends on the timeframe in which it can be provided, and there are several factors/characteristics that may make it unsuitable for a patient. 

Hemorrhagic stroke occurs when a weakened blood vessel ruptures and bleeds into the surrounding brain.  This puts pressure on the brain and causes a loss of blood to the surrounding areas, resulting in damage to the brain tissues. Hemorrhagic strokes are less common than ischemic strokes, and require different treatment. Different treatments, such as surgery to repair the affected blood vessel, are available to patients who have been diagnosed with a hemorrhagic stroke. 

Common Issues in Medical Malpractice Stroke Litigation  

Medical malpractice litigation relating to strokes typically focuses on a delay in the diagnosis of a stroke, or on a failure/delay in terms of providing appropriate treatment to a patient suffering from a stroke. Typically, the Plaintiffs in these cases will argue that they presented before a treatment provider with stroke symptoms, and that the treatment provider failed to diagnose and/or provide treatment for the stroke within an appropriate period of time. The Plaintiffs will further argue that, as a result of that delay, his or her injuries are much more significant than they would have been had appropriate treatment been provided. 

In order to successfully establish a medical malpractice action relating to a stroke, the Plaintiff must prove: 1) that the treatment provider failed to meet the standard of care in terms of assessing and treating the patient; and 2) that appropriate treatment would have made a significant difference to the patient’s prognosis. In other words, the Plaintiff must not only show that the treatment provider’s care fell below an acceptable standard, but must also show that appropriate treatment would have prevented some, or all, of his or her injuries. 

Both the standard of care and causation aspects of this test can be a complicated assessment in stroke cases. The standard of care analysis often depends on exactly what information was available to the treatment provider, and whether he or she ought to have suspected a stroke or ordered further testing with the information that was available to him or her. The standard of care assessment depends entirely on the specifics of the case. Often, the presence or absence of red flag symptoms (such as sudden numbness, loss of vision, headache etc.) plays a significant role in determining whether a treatment provider has met the standard of care. 

If the Plaintiff is able to establish a breach in the standard of care, it does not necessarily follow that the Plaintiff will be able to successfully prove his or her claim. The Plaintiff must also establish that appropriate treatment would have prevented, or reduced the extent of, his or her injuries. In stroke cases, the causation analysis depends on a number of factors, including the type of stroke, the timing of symptom onset, whether the Plaintiff was a candidate for tissue plasminogen activator or other treatment, and the likelihood that appropriate treatment would have resulted in a favourable outcome. If the Plaintiff is not able to prove that appropriate treatment would have, more likely than not, prevented his or her injuries, then a lawsuit will fail, even if a breach in the standard of care can be proved. In stroke cases, it is not uncommon for the Plaintiff to be able to prove a breach in the standard of care, but be unable to prove causation due to the fact that he or she would not have been a suitable candidate for treatment, or due to the fact that the likelihood of treatment making a significant difference would have been low.

Summary 

Given the relatively common nature of stroke, and the significant impact that stroke can have on an individual’s quality of life, it is not surprising that stroke is a common source of medical malpractice litigation. If a Plaintiff is able to establish: 1) his or her treatment provider breached the standard of care with respect to diagnosing or treating a stroke; 2) he or she would have been a candidate for treatment; and 3) treatment would have prevented or reduced his or her injuries, the Plaintiff will be able to successfully establish a medical negligence claim and recover damages for his or her injuries.

If you or a loved one have suffered a stroke and wish to speak to a medical malpractice lawyer about a potential claim, you can contact our team here.

By Ian Miller