What is medical malpractice?

Medical malpractice occurs when a patient suffers injury or harm as a result of the negligence of a health care professional. Negligence occurs when a health care professional falls below the standard of care expected of a reasonable practitioner of that profession in similar circumstances, and that failure causes the patient's injury or harm.

What can I sue about?

A patient can sue any health care provider for their negligent medical care (or lack there of) which has caused an injury or harm. Common areas that give rise to medical malpractice actions include:

  • Birth Trauma and Obstetrical Negligence
  • Misdiagnosis and Delay in Diagnosis (including cancer and stroke)
  • Inappropriate or Unindicated Surgery
  • Surgical Negligence
  • Inappropriate or Inadequate Treatment and Management
  • Medication (Pharmaceutical) and Prescription issues
  • Medical Equipment and Device Issues
  • Failure to Properly Monitor and Respond
  • Lack of Informed Consent
  • Wrongful Death
  • Chiropractic Negligence
  • Optometrist Negligence
  • Hospital Negligence
  • Nursing Home Negligence

Is there a time limit to start a lawsuit?

Generally, in Ontario, for a medical malpractice action there is a two-year limitation period. The applicable limitation period depends upon the specific circumstances for each case. Special limitation periods may apply in the cases of deceased persons, minor children, or persons under a legal disability.

After the limitation period has expired you may be precluded from starting a medical malpractice action. If you are considering pursuing a medical negligence action it is important to consult with a lawyer in a timely manner to ensure your limitation period is not missed.

How much will it cost to investigate a medical malpractice case?

Most lawyers will provide a free initial consultation to discuss your potential matter. If your matter is something that both you and the lawyer choose to proceed with, usually medical malpractice lawyers will require an initial financial retainer to offset some of the costs of investigating the merits of case, primarily the cost of obtaining expert opinion reports.

After the investigation has been completed, if it is recommended that you proceed with the case, the matter will usually be on a contingency fee basis (i.e. you would not pay anything to your lawyer above the initial retainer fee unless you were successful at trial or there was a settlement).

What can I expect from a free initial consultation?

We have experience in medical negligence actions throughout Ontario. However, we are generally unable to represent potential clients in relation to actions against doctors or hospital in London, Ontario.

During the free initial consultation at Siskinds LLP, you will speak with one of the team members with expertise in medical malpractice. We will obtain further information about your situation to understand the possible liability, as well as assess the injuries and potential damages to determine if a case falls within our expertise and interest.

We will also discuss the general pathway of a medical negligence action, explore your legal options, and answer any general questions you may have for us. We will provide you with as much information as we can during an initial consultation, but due to the limits of the consultation process, it is unlikely we will be able to provide you with a formal opinion or legal advice.

How long will a case take?

The answer is that it depends. It depends on the individual medical and legal issues in your case and whether the potential defendant is willing to enter into settlement negotiations. Medical malpractice actions have a greater tendency to proceed through to trial than personal injury cases, however, we have been successful in obtaining settlements for many clients. If your matter requires a trial, it may take six years from the date a file is opened to the time of trial. An appeal of the trial is usually at least another year after the trial verdict.

Given the lengthy and complex issues involved in medical malpractice actions, it is recommended that you retained an experienced medical malpractice lawyer to advance your claim and help you through this process.

Do I have a case?

Medical malpractices cases are complex medically and legally, such that we must complete our investigation before we are able to provide you with our opinion as to whether or not you have a meritorious case.

Once a file is opened, we begin with an initial investigation into each case by obtaining the relevant medical records for review to determine the medical history and identify potential issues relating to the relevant standard of care. In the usual course, an expert consultation is sought to get a medical opinion as to whether there were any breaches of the standard of care that caused injury or harm.

Following the investigation, we are usually in a position to provide you with our legal opinion as to whether there is a reasonable chance of success at a trial to allow you to decide whether to proceed with the case.

How much is my case worth?

A medical malpractice action may include claims for compensation for the pain and suffering caused, past expenses (including medications, therapies, aids, attendant care), past loss of income, future health care costs, future loss of income as well as what are known as Family Law Act claim in Ontario.

The value of the various claims depends on the specific facts of your case, as well as the expert medical evidence as to what injuries are attributable to the alleged negligence.

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.