Statute of Limitations - Canada Medical Malpractice Compensation ClaimsLEGAL HELPLINE: ☎ 855 804 7125
Medical negligence cases are usually complex, difficult and time consuming legal claims. The 'Canadian Medical Protective Association' (CMPA) which provides insurance for the majority of doctors in Canada to cover them in case of a negligence claim are prepared to spend large sums to defend small claims in attempts to protect their policyholders. Without doubt, the first thing that the CMPA will consider when instructing a lawyer to defend a compensation claim is the statute of limitation in Canada to establish whether or not the potential litigation can be nipped in the bud at an early stage.
The firms that represent the insurers are carefully selected for their skill, experience and proven ability in the defense of clinical negligence actions. Claims are never settled on a 'nuisance' basis and a claimant will be expected to prove his entitlement to damages every step of the way.
There is no formal, all encompassing 'Statute of Limitation' in Canada however the purpose of limitation periods is to bring finality and certainty to court action by setting a time limit on when action can be taken in the courts if the claim has not settled by consent prior to that date. A time limit is necessary due to a number of matters relating principally to the quality of the evidence available in an old claim. Memories fade, witnesses die or cannot be traced and documentation or computer records may be lost or corrupted resulting in the risk of an unfair outcome to a trial.
One of the first considerations given to any legal claim by both sides lawyers is whether or not it is still within time as after a certain period claims become stale. Once this time limit has expired the potential claimant loses the right to claim and is precluded from obtaining damages.
The time period within which the claim should either be settled or proceedings issued if the claimant is to retain the right to compensation is known as the 'limitation period' which differs dependent on the province or territory. In some regions the statute of limitations may be deferred until a child claimant reaches a certain age or a person suffering from mental or psychological problems has recovered. Qualified legal advice should always be sought as soon as possible after the event which gives rise to a potential claim
Discovery of Injury
The clinical malpractice limitation period usually begins with the date of the action that caused the injury, however, if an injury is not discovered for months or years after it occurs then the limitation period usually starts to run when the injury is discovered or when the injury should, with reasonable diligence have been discovered. The only source of accurate information is likely to be an experienced and up to date local lawyer who is familiar with the laws, recent developments and cases of that particular state.
Medical Malpractice Lawyers
Our medical malpractice lawyers can help you to exercise your legal rights to obtain the compensation you deserve. Our lawyers will deal with your case using a contingency fee arrangement which means if you don't succeed in receiving compensation then your lawyers won't get paid. If you are the innocent victim of a medical mistake then you may be able to recover compensation. For free advice without obligation just use the helpline or complete the contact form and a qualified lawyer will telephone you immediately to discuss your compensation claim without further obligation.
Medical Malpractice Law
A medical malpractice legal case is usually complex, time consuming and vigorously defended by indemnity insurers who are inevitably represented by law firms known for their skill, experience and vigilant defence of clinical negligence claims. There are a number of factors that a medical malpractice lawyer must consider before agreeing to act on behalf of a client in a medical malpractice case which include:
- Limitation Period
Legislation exists in all provinces requiring that legal action against a medical professional be commenced within a specific time scale known as the limitation period. The law and the limitation period may vary dependent on location and if a formal claim has not been filed in a court of law prior to the expiry of the relevant period then the opportunity to claim compensation may have been lost forever.
- The Quantum Of Damages.
The amount of financial compensation that might be awarded in a medical malpractice case is a significant factor considered in the initial assessment of the claim by a lawyer. Cases in which the figure is low may not, even in the event of a successful outcome, cover the cost of running a legal case and such a case would be rejected by a lawyer. The higher the amount of potential damages then the greater the chance that a law firm will be prepared to deal with the case on a contingency basis.
- Was Informed Consent Obtained?
It is incumbent on a health care provider to advise his patient of the risks and benefits of a particular procedure and what the alternatives are. Failure to do so may mean that the health care provider is negligent in the event of subsequent problems. Even if there is no informed consent, there will be no liability if it can be shown that a reasonable person would have consented to the procedure in the knowledge of the risks and benefits. In extraordinary circumstances the requirement for consent may be waived.
- Was the Treatment Negligent?
Treatment is negligent if a healthcare provider has fallen below the minimum standard of skill or care that the medical profession regards as reasonable in that particular location. The standard of care is that degree of skill and care to be expected of a provider with that individual’s training and experience. This includes not only doctors but also hospitals, clinics, dentists, nurses and medical technicians and any other party or body that undertakes to provide services to take care of patients sufficient to establish a duty of care. Negligence is usually proved through the use of an expert witness. If there is no obvious evidence of negligence in a potential medical malpractice legal case then a lawyer will inevitably reject the claim. The mere fact that treatment is unsuccessful is not necessarily evidence of negligence. Whether or not there has been a failure to attain the required standard of care is assessed initially by a specialist medical expert retained by the claimants lawyer and except in extremely unusual situations, a case without a supportive expert opinion is destined to fail.
- The Nature of the Claim.
Some types of medical malpractice claims are more difficult to prove than others and an initial risk assessment will be made balancing the type of claim against the strength of the available evidence. A medical malpractice case with a high risk factor is unlikely to be accepted on a contingency fees basis.
- Causation - Direct Link
In addition to showing that the health care provider’s care fell below the required standard it is also necessary to show that injury or loss was the direct result of that failure. It must be proved that there is a direct link between the medical malpractice and the damage caused.
A medical malpractice lawsuit arises as a result of negligence by professional healthcare providers including doctors, nurses, dentists, technicians, hospitals and clinics whose behavior deviates from the standard practice of those with similar training and experience which results in harm being caused to a patient. A physician or other healthcare provider is negligent if they have fallen below the minimum standard of skill or care which their profession regards as reasonable however the prescribed standard of care may vary from one location to another.
In order to claim a compensation in a medical malpractice lawsuit it is necessary to establish the following :-
- Breach of the Standard of Care.
To succeed in a claim it is necessary to prove that the healthcare professional made a mistake which a reasonable and prudent professional would not have made under the same circumstances. This point is usually established by testimony from an expert witness who gives evidence that in his view the doctor made a mistake that an experienced doctor should not have made. The mere fact that treatment may have failed is not on its own sufficient to prove negligence in a medical malpractice lawsuit.
It must be shown that there is a direct link between the doctor's mistake and the injury suffered. Again it is usually necessary to rely on expert testimony to prove that if the doctor had not erred then the patient would have recovered or would have been injured to a lesser degree.
It must be proved in a medical malpractice lawsuit that losses or injury resulted from the doctor's mistakes. An injured person may recover the following damages including both present and future expected losses:
pain and suffering
punitive damages in extraordinary cases
The author of the substantive medical writing on this website is Dr. Christine Traxler MD whose biography can be read here