When A Doctor Makes A Mistake -

When A Doctor Makes A Mistake

By Cynthia Davis 2015/11/27

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As one of the most respected professions, health care professionals take great pride in helping people during some of life’s most difficult times. However, we can’t forget that medical practitioners are humans and, like all humans, they can make mistakes. These mistakes don’t make them horrible people, but in matters of life and death, mistakes can be tragic.

As much as everyone involved would like to turn back time and avoid critical errors, when medical negligence occurs, often the only remedy is a lawsuit aimed at compensating the victims of these errors.

At SorbaraLaw, our litigation team is known for its expertise and skill in medical negligence cases, having won all the way to the Supreme Court of Canada. When we meet clients who are facing the unimaginable, we often hear the same misconceptions about bringing a lawsuit, as well as the same questions, “what would I have to prove”, followed by, “what should I do now?”

What do I have to prove?

At law, a plaintiff pursuing a claim against medical professionals must establish both that a breach of the standard of care owed to him or her has occurred and that the breach has caused an injury. When a court finds that both elements have been proved on the balance, negligence is found to have occurred and the Court then moves on to a determination of the damages to be awarded.

In order to establish negligence, all lawyers – including the lawyers who represent the physicians, nurses, and hospitals – retain medical experts who, along with the lawyers, review the evidence and provide the Court with opinions as to the actions of the parties.

The standard of care is the legal term used to describe the level of care that a medical practitioner is required to deliver. To find a breach of the standard of care owed, evidence must be presented to a court that establishes that a medical practitioner failed to do something that he or she ought to have done, or did something that he or she ought not to have done. Malpractice can occur from a course of conduct undertaken by the physician, for example, by the physician proceeding without obtaining informed consent, or by the physician’s failure to take appropriate action to treat the patient’s condition, for example, by failing to properly diagnose a condition when a reasonable physician would have properly diagnosed.

It is important to keep in mind that the medical team will not be held to a standard of perfection by the law. Medical practitioners are permitted to be wrong, provided the error in judgment is one that falls within a reasonable expectation. For example, a misdiagnosis of a medical condition isn’t always a breach of the standard of care where the medical practitioner conducted the proper investigation, ordered the necessary tests and reached a conclusion that many other physicians in his or her shoes would have reached. A breach of the standard of care goes beyond a mistake and represents a negligent act or omission.

In addition to a positive finding on the issue of the standard of care, evidence must also establish that the breach of the standard of care by the treating medical team ultimately caused the patient injuries, or in the alternative, has caused the patient’s condition to be worse than it otherwise would have been. This latter part of the negligence equation can become quite complex and requires the expertise, not just of the medical experts on the case, but the legal team.

Damages

Inevitably, individuals coming to see us about a potential claim in medical negligence ask, “What’s it worth?” Damages in these complex claims can be difficult to predict at the outset. Often, a review of the medical evidence, including current treatments and needs, is required before such broad stroke estimates can be given. What we do know is that there is a common misconception that general damages, also known as damages for “pain and suffering”, or “loss of enjoyment of life” are not as high as south of the border or the awards we see on media and television. In Canada, damages for this category of compensation have been significantly limited by the Supreme Court of Canada which, in 1978, considered this and held that the maximum amount of money an injured plaintiff could receive for “pain and suffering” was $100,000. That amount has gradually increased over time to keep up with inflation, and is currently at approximately $350,000.

In addition to general damages, individuals who have suffered from a breach of the care required of their medical team will also be entitled to seek damages to compensate them for the costs of any past and future treatment that may now be necessary, any past and future loss of income – which would include damages for any loss of competitive advantage in the workforce that results from the injuries sustained – compensation for household and housekeeping costs incurred as a result of the injuries sustained, as well as reimbursement for any out-of-pocket expenses arising from the injuries. Of course, as in any litigation, a successful party in a lawsuit is also entitled to a contribution to the legal costs incurred to proceed with the action.

In addition to misconceptions about the quantum of damages that may be available, individuals coming to meet our team of lawyers often believe that doctors are simply too powerful to sue. While it is very true that medical malpractice actions are extremely complex and can be difficult, a skilled lawyer who has extensive experience in this area knows that it can be done.

Most physicians in Canada are members of the Canadian Medical Protective Association (the “CMPA”), whose primary function is protecting the professional integrity of physicians. When a lawsuit is started as against a member of the CMPA, it is the CMPA that pays for the doctor’s defence costs, including hiring a lawyer, medical experts, and any other fees associated with the claim. When a lawsuit is either settled or won, the CMPA pays the Plaintiff the damages awarded.

It is also not true that all doctors stick together and that it will be difficult to obtain a report from a medical expert that confirms that the medical team made a critical error. Although there are many physicians who are uncomfortable with the litigation process and testifying against colleagues, lawyers who have experience in this field of law have access to credible experts who will review the case and provide an objective assessment of the treatment received, allowing the patient to make informed decisions about the potential case. It is important to appreciate that these actions don’t often settle in the early stages of litigation. Having a lawyer that does not merely dabble in this area of law will ensure that you have someone on your team who is experienced in dealing with the CMPA, its team of defence lawyers, and medical experts and knows how to proceed strategically through each step in the litigation.

Next Steps

At SorbaraLaw, we make the following recommendations to those who are not sure whether they have suffered from someone else’s medical negligence:

  1. Advocate for yourself. Always.
  2. Where your family doctor may be at fault, seek out a new family doctor. Not necessarily because you have a bad doctor, but because this is a very important relationship and is key to your medical health. Where the relationship has broken down, you need to advocate for yourself first and ensure that you feel comfortable with your care moving forward. Do similarly if it was not your family doctor but you are still being treated by the individual.
  3. Collect your medical records. If the incident occurred at a hospital, go to the records department and request a copy of your medical records. If your family doctor may be at fault, ask for a copy of those records.
  4. As difficult as it may be, write down everything you remember about the relevant events. Keep recording, moving forward, anything related to the injuries you have sustained.
  5. Where appropriate, take photographs of your injuries.
  6. Keep the limitation period in mind when considering whether to start a lawsuit. It is important to appreciate that in Ontario, the Limitations Act prohibits any lawsuit from being commenced after the second anniversary of the claim or the discovery of the claim.
  7. Call a lawyer and obtain a free consultation to learn more about the above, and how to proceed to investigate your claim.

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Cynthia Davis is a member of the SorbaraLaw litigation group and practises in the areas of civil litigation and citizenship and immigration.

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