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 life.
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 trial.
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.