Questioning a medical professional when something does not seem
right can be an intimidating thought. You have placed your trust in
their expertise, and with little knowledge of the complexities of
the medical system, it can seem daunting to know where to begin and
what steps to take when considering a possible medical malpractice
case. It is important to take a long-term view when making
decisions. If the actions of the treatment provider(s) constituted
malpractice, it is possible to pursue damages that will compensate
you for needs you have not only today, but for the rest of your
It is good to start by asking questions of the treatment
providers as a concerned patient who wishes to be well informed
about the course of events that led to the unexpected outcome, the
specific cause of the injury, the diagnosis and prognosis. This
period of questioning will begin the process of gathering important
information. Every patient in Ontario has a right to his/her
medical records, and certainly obtaining them to get the full
picture is crucial.
When you first approach a lawyer, having a concise chronology
and medical records on hand will facilitate an informed and
fruitful preliminary discussion. Often this initial consultation is
free of charge. Every case is as unique as the patient him/herself,
but generally, if the case appears to be one that warrants further
investigation, we will seek verbal opinions from experts who have
reviewed the relevant medical records. Issues including liability,
causation and damages are contemplated.
Once the experts have provided preliminary opinion(s), there is
a decision to make. If they suggest that the treatment provider(s)
fell below the standard of care, there could be a finding of
negligence. In order to succeed in the case, you would also require
an opinion that the negligence caused the injury and have at least
a broad understanding of what the long-term damage is (and claims
associated with this). In discussion with the lawyer, you then
decide if and when you wish to start a lawsuit. There are important
limitations rules in Ontario that must be followed. There are risks
to every lawsuit. Retaining a lawyer with both expertise in the
area of medical malpractice and a willingness to help you
understand the risks and benefits of proceeding with a lawsuit is
highly valuable. Generally, lawyers in this field work on a
contingency basis, meaning that they get paid a percentage of the
recovery at the end of the case.
If you choose to proceed with a lawsuit, be aware that it is a
long and trying process. The investigation process continues.
Further records are requested and formal written expert opinions
are obtained. A Statement of Claim is issued and the defendants
file Statements of Defence. All parties go through a discovery
process where evidence is given under oath about the course of
events surrounding the alleged negligence as well as the damages
that arose from it. Mediation (a settlement meeting) is mandatory
in some Ontario jurisdictions after the defence has had an
opportunity to conduct their own assessments. If the case does not
resolve at mediation, we proceed to pre-trial and ultimately
It is important to retain a lawyer at the beginning stages who
has the experience and capacity to see your case through to the
end. Not only will you have a long and trusted relationship with
your lawyer, the defence lawyers are aware of firms who do not take
cases to trial. It is not a stretch to suggest that a lawyer who
carries a true threat of taking a case to trial will get more in
terms of compensation for their clients than those known to walk
away at the 11th hour.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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