Medical Malpractice Law - Personal Injury Compensation Claim LawyersLEGAL HELPLINE: ☎ 855 804 7125
Doctors usually provide a high standard of excellence for their patients however there are occasions when things do go wrong. Our lawyers provide professional legal representation throughout Canada. Our personal injury lawyers deal with claims under medical malpractice law on a contingency basis which means they don’t get paid unless they succeed. If you would like telephone advice at no cost from an expert medical malpractice lawyer just call the helpline or complete the contact form or email our offices.
Doctors and healthcare professionals including dentists, nurses and technical staff are required to stay current in their knowledge of treatment methods and to meet a reasonable standard of care. According to current medical malpractice law, doctors have a duty to conduct their practice in accordance with the conduct of a prudent and diligent doctor in the same circumstances and specialists have a duty to exercise the degree of skill and knowledge of an average specialist in that field. Failure to do so may be classed as a negligent act.
Medical malpractice law in Canada is intended to compensate a person who has been injured as a result of negligent treatment by a health care provider that has caused personal injury, pain and suffering and consequential losses. Medical malpractice is a term used to describe any treatment, lack of treatment, or other departure from accepted standards of medical care, health care or safety on the part of a doctor or other health care professional that causes harm to a patient and can include misdiagnosis, inappropriate treatment, failure or delay in treatment or follow up and prescription errors. Negligence is often not obvious and requires consideration, review and analysis by medical malpractice lawyers. In order to succeed, a malpractice lawyer must show that:-
- the health care provider owed a duty of care to the patient
- the duty of care was breached
- the patient suffered harm
- the patient's injury was caused by the breach of duty
If it can be shown that the actions that caused the injury were errors of judgement as opposed to negligent actions and that the practice followed was accepted by other competent physicians and that the injury was merely an unfortunate result or that a body of respectable doctors would act in a way which deviates from the standard practice, then the doctor may avoid liability unless negligence can be proven. Medical malpractice law relating to liability is complex and you should always take advice from a specialist lawyer.
In a negligence case it is usually not difficult for a medical malpractice lawyer to establish that a duty of care exists once a doctor-patient relationship has been formed and takes place when the physician agrees to care for the patient. Even after it is established that a duty of care existed and the health care provider breached that duty of care by failing to meet the requisite standard of care it will not be possible to recover compensation unless the claimant suffered injuries that were as a direct result of the breach of that duty of care. Claims may be pursued against those who provide medical or health care including, physicians, nurses, hospitals, dentists, nursing homes and pharmacists and may be brought against individuals, partnerships, professional associations and corporations.
To succeed in a claim for compensation it is necessary for medical malpractice lawyers to show that it is more likely than not that their client has suffered injury which they would not otherwise have suffered but for negligent medical treatment which occurs when a healthcare providers standard of skill or care has fallen below the minimum that the medical profession regards as reasonable. Medical malpractice lawyers can take legal action for compensation for negligence against any healthcare provider which includes not only doctors but also hospitals, clinics, dentists, nurses, medical technicians and any other body that undertakes to provide clinical services to take care of patients sufficient to establish the existence of a legal duty of care.
Even if negligence has been proved by a medical malpractice lawyer against a healthcare practitioner there are still a number of hurdles that potential claimants must surmount in order to obtain compensation for personal injury. In addition to proving negligence it is also necessary to show that the harm suffered by the patient was directly attributable to the healthcare provider’s negligent actions. This may be difficult as the patient was ill at the start of the treatment and assessing what part of the ongoing illness was due to the original problem and what part was due to negligent treatment may be a daunting task. Medical malpractice lawyers usually overcome this hurdle by the use of expert evidence to show the natural progression of the underlying condition and what the outcome would have been if non-negligent treatment had been given, thereby establishing what difference the negligent treatment has made.
To successfully claim damages for personal injury under current medical malpractice law, it is necessary to prove the following items on the balance of probability;
- Liability must be established by showing that the medical practitioner was negligent and did not do what a "reasonable doctor" would have done in the same situation.
- Damages must have been shown to have occurred which are usually proved by way of medical reports, accounting projections for lost income and other evidence from experts.
- Causation relates to proof of the link between the negligent action and the loss sustained. It is usually necessary to establish the natural progression of the illness and the likely outcome if non-negligent treatment had been given in order to compare the outcome following the negligent treatment.
The first step in pursuing a medical malpractice case involves obtaining and reviewing medical records and other pertinent information by a lawyer and by a specialist medical expert. If it is determined that there is medical malpractice case worth pursuing then written notice of the claim is given to the individuals or entities that are believed to have been responsible. A documentary review by a medical specialist is conducted to determine whether or not the health care professional failed to meet the appropriate standard of care. The vast majority of cases are settled prior to trial and some cases are settled prior to the filing of a lawsuit.
After obtaining the medical reports necessary to prove the claim and after collating copies of physicians' medical records and the patient's hospital charts, all of the documentation together with a factual statement of the circumstances of the claim and a chronology of events is sent to a consultant physician who is a medical malpractice expert from the relevant clinical discipline for an opinion on liability and causation. It is essential to have a competent specialist review the material at this stage to confirm if there has actually been negligence or a transgression of acceptable standards of clinical or hospital practice. It is also necessary to show that there is a causal relationship between the negligence and the harm suffered by the patient. If any of these essential elements is not present then the reviewer should be able to advise on whether to abandon the medical malpractice case as unsustainable or to advise on progression after obtaining further evidence as a result of which it may be necessary to meet the expert on several occasions.
The following items of compensation may be payable by a health care provider under medical malpractice law in Canada;
- pain and suffering
- medicines and medical fees
- loss of past and future earnings
- special care aids and equipment
- travelling expenses
- assistance for household chores
- care and assistance
- adapted accommodation and transport
- general expenses
Stringent 'discovery' rules apply in most states to a medical malpractice case. Discovery means that both sides to a case have at some stage to disclose all documentation that has been or is in their possession relating to the claim, subject to the exception of certain classes of documentation which are deemed to be privileged and do not have to be disclosed. It is advisable for the lawyer instructed on the claim to meet personally with the medical malpractice expert rather than have a written report at this stage of the case, as any written report may have to be disclosed to the other side under the discovery rules. After the meeting the experts opinion should be dictated by the malpractice lawyer into memorandum form which in most cases will be immune from direct discovery by the opponent.
A person who has suffered from negligence has a limited time period in which they must pursue their medical malpractice case. Time limits under a statute of limitation vary and certain exceptions may exist under the law in certain circumstances. The time period may be extended for certain individuals including those who are minors when the malpractice occurred and in other circumstances including when a medical professional conceals the malpractice. These time limits if breached can totally preclude legal action from being taken to claim compensation and potential claimants should always seek the advice of an attorney without delay.
Prior to undertaking any treatment a health care professional must obtain the patients ‘informed consent’ which is the patients agreement to allow medical treatment to be rendered based upon full disclosure of all of the facts necessary to make an intelligent decision. It is necessary for advice to be given about what the proposed medical treatment entails, what procedures will be used, whether drugs or surgery will be utilized, what the alternatives are and the potential risks and side effects. Failure to fully inform and advise the patient can mean that, under medical malpractice law, a health care professional is liable to pay compensation in circumstances where, if full and proper consent had been given, that person may not have been liable.
Medical Malpractice Law Advice
Our lawyers can help you to exercise your legal rights to obtain the compensation you deserve and will deal with your case using a contingency fee arrangement which means if you don't succeed in receiving compensation then your lawyer won't get paid. For advice on medical malpractice law, at no cost and without obligation just complete the contact form or call the helpline and a qualified advocate will telephone you immediately to discuss your personal injury compensation claim.
Arbitration is often advocated as the best solution however the entire procedure is fraught with difficulties. In minor cases arbitration may be appropriate however in a substantial case it is preferable to rely on a medical malpractice lawyer to take the matter to trial. In an arbitration each party usually nominates one arbitrator and a third arbitrator is then selected by the existing arbitrators. Frequently none of them are truly impartial and most cases cannot be decided justly because judicial disclosure of documentation is not usually part of arbitration.LEGAL HELPLINE: ☎ 855 804 7125
The author of the substantive medical writing on this website is Dr. Christine Traxler MD whose biography can be read here