A bad outcome to care is not necessarily the product of medical malpractice or doctor negligence, but provider negligence does occur.
If you're considering legal action for medical malpractice, there are three major issues to consider: standard of care, causation, and damages.
The legal approach to medical negligence was defined many years ago in the case of Crits v. Sylvester (1956). The question that must be asked is whether the physician behaved as a normal and prudent practitioner in the same field of medicine would under the circumstances. The court, lacking medical expertise, relies on medical experts to judge if the expected standard of care was met. The patient and the defence each engage experts to support their respective positions, and the court carefully weighs this evidence.
If a patient proves that a healthcare provider failed to meet the expected standard of care, the next step is to show that this negligence directly caused the injury. For instance, if a physician failed to diagnose a condition in a timely manner, it must be shown that the delayed diagnosis caused the injury, rather than being an inevitable result of the illness. In all but the most obvious cases, this requires additional expert opinions to establish causation.
Once causation is proven, the court considers what damages are appropriate. Many clients are surprised to learn that damages for pain and suffering in Canada are capped at under half a million dollars. However, additional compensation can be claimed for loss of income, future care costs, out-of-pocket expenses, and family member claims. Calculating these damages requires expert assistance, and the defence will typically provide their own experts to argue for lower estimates.
It is also important to understand that under Ontario's Limitations Act, cases must generally be filed within two years of the date on which the patient knew, or ought to have known, about the potential claim. Exceptions exist for minors or individuals deemed incapable, but for most patients, the two-year rule applies strictly.
The bottom line is: if you believe you have been injured due to doctor negligence or medical malpractice, consult with a qualified personal injury lawyer to review your case. Most initial consultations are free of charge, and if you're not satisfied with the first opinion, seek a second.
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.
