Canada: A Roadmap For Parents Considering A Medical Malpractice Lawsuit

Last Updated: December 6 2016
Article by Meghan M. Hull Jacquin

It is very unsettling to be confronted with the thought that your child may have suffered harm at the hands of a medical professional in whom you put your trust. In addition to the heightened concerns over your child's health, the added anxiety surrounding legal issues can seem overwhelming. It is not unusual to feel uncomfortable questioning your child's treating medical professionals, however with your child's long-term needs in mind, it is advisable to explore the issues and begin the decision making process early.

This article will provide a roadmap of critical steps to follow when considering possible legal action. The hope is that you will feel empowered to gather the information you need to make important legal decisions that are in the best interest of your child. Keep in mind that the legal process – a lawsuit – takes years from start to finish. It takes time both to proceed through the court (litigation) system, but also to gain a comprehensive understanding of the complex medical issues and their long-term implications/consequences. Your child's case is unique and special – just like they are.


Steps To Take When You Suspect Birth Injury

How to Pursue a Medical Malpractice Law Suit

Step One: What To Look For In Your Child

Birth Injury Medical Malpractice Flowchart

If your child has been diagnosed with a neurological disorder following birth, it is natural to question the cause of this issue. Even without a diagnosis, you may notice that your child is displaying unusual symptoms or developing in a way that causes you concern (for example not meeting milestones or behaving in unusual or unexpected ways). Parental instinct is not usually something that should be ignored. If something seems off, it is fully within your right to ask questions and get answers. Your child's wellbeing may depend on it!

Step Two: What To Ask

If you either have a diagnosis or observe concerning symptoms or behaviors, it is important to speak with your family doctor, pediatrician, obstetrician, and hospital birthing staff about what happened before, during and after the birthing process. It is best to converse with the medical team as a concerned parent seeking understanding, as opposed to taking an aggressive approach, at least at this stage. Do not be discouraged if this does not result in finding a 'smoking gun'. This is simply the first step in the information gathering process.

Step Three: Obtaining Medical Records

In order to learn about the circumstances surrounding the birthing process, obtaining the medical records is key. By law, every patient is entitled to a copy of their medical records. As a guardian of your minor child, you are entitled to their records. No explanation for the request is required. The mother of the child is also entitled to her own medical records. You may be required to pay for the cost of photocopying these records. If you are uncomfortable requesting the records (something that can be done in writing), your lawyer can take this step for you.

Step Four: How To Find The Right Lawyer

When you have asked questions and sought medical records, you will likely want to discuss your concerns with a lawyer. Medical malpractice law is very complex and specialized. Retaining the right lawyer is critical. You will want a lawyer whose practice focuses in medical malpractice, and more specifically birth injury cases. You will want a lawyer who is recognized as a leader in the field (you can find information of this nature in legal industry publications such as Canadian Lawyer Magazine, Lexpert and Best Lawyers). You will want a lawyer with trial experience (many firms do not have the experience or capacity to see your case through to the end). Because the litigation process will be long and, at times, emotionally taxing, you will also want a lawyer who is compassionate and willing to take the time to walk you through the process, explaining as much about the issues specific to your child's case as you wish to know.

Step Five: Preparing For The Call To A Lawyer

The initial contact with a lawyer is an important event. This is typically done by phone so that a general understanding of the issues and concerns can be discussed. There is no cost to you for this call; it is completely confidential.

The more information you have, the more fruitful the conversation will be. It is a good idea to write a point-form chronology of events, concerns and questions. This will help you to organize your thoughts in a logical way and list key developments in your child's condition and treatment. If possible, sending the lawyer this document by fax or email prior to the call is a good idea. This will help the lawyer prepare for the call and have an understanding of some of the key issues and concerns you have.

During the call, a decision is usually made with respect to whether the lawyer believes the case ought to be investigated further. A plan is therefore put in place, which could involve a request for you to seek medical records, send them to the lawyer for review, and/or to schedule an in-person meeting.

Step Six: In-Person Consultation With A Lawyer

The initial face-to-face consultation with a lawyer is again at no cost to you. It is completely confidential.

This is a time when the issues are explored in more detail. It is a good idea to bring what medical records you have along with you. If there is a significant volume of records that you have sent prior to the meeting, the lawyer will typically have reviewed them. If you bring them along with you and this is the first time the lawyer sees them, they will review them briefly at that time. The lawyer will listen to your concerns and explain the legal process, what would need to be proven in your case, what possible challenges you may face going forward, and what damages you may be able to pursue (pain and suffering, attendant care, medical care, income loss, etc). In essence, the goal of this meeting is for the lawyer both to collect more information from you and the records, and to provide you with information about the litigation process and your specific case, in order to make you as comfortable and informed as possible.

At this meeting, the costs associated with your child's case may be discussed. Usually, these cases proceed on a contingency fee basis. This means that the lawyer is paid at the end of the case as part of the settlement.

Step Seven: Preliminary Investigation

In order to determine whether the care provided to you or your child constituted malpractice, opinions must be sought from independent experts. Generally at this stage, in order to keep costs manageable, expert(s) are consulted verbally once they have reviewed the medical records. After this opinion is received, you are immediately contacted. This process can take months to complete, as it takes time to request and receive any additional medical records, time to find a willing expert, time for them to review the records, etc.

Step Eight: Deciding Whether to Pursue a Case for your Child

Put simply, there are three things that must be proven in a lawsuit to succeed. First, negligence: did the care provided to you and/or your child fall below the standard of care owed to you and your child? Second, damages: what injuries and damages (both short and long-term) did your child sustain? Third, causation: did the negligence cause the injuries and damages?

Depending on the outcome of the preliminary investigation, you have a choice to make about whether you wish to pursue a case. It is important that you understand the legal process, the damages you are entitled to pursue and the risks associated with the case. At this point, with the benefit of preliminary expert opinion, your lawyer will be able to give you a preliminary opinion about the risks and benefits of proceeding.

To learn more, watch the THREE TO BE Legal Webinar Series for parents contemplating a medical malpractice suit at bit.ly/MedMalWebinars. You may also want to view the Birth Injury Medical Malpractice Flowchart at bit.ly/MedmalFlowchart.

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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