Medical Malpractice Lawyers_.

Healthcare providers have a responsibility to treat their patients with excellent care and compassion, prioritizing patients’ well-being. Despite healthcare providers’ best intentions, mistakes do happen, and they can have devastating outcomes for patients and their loved ones.

Medical malpractice lawsuits seek remedies for these harms in the form of damages. The patient can pursue compensation from individual healthcare providers, a group of providers, or even the institution involved, such as a hospital or long-term care facility.

These cases are rarely straightforward; instead, they are complex and lengthy. Most doctors have insurance through the Canadian Medical Protective Association (CMPA), a well-resourced organization, and hospitals are equally well-defended. Consequently, the success rate for these cases is quite low, with only about 1 in 5 being decided in favor of the injured party, including cases that are dismissed outright or abandoned.

That is why your representation matters. As clients deal with their pain and suffering, they need sympathetic advocates, a team that hears them and will fiercely fight for them. At MacGillivray Law, our team has what it takes to represent you through these cases, including:

• necessary resources to take on well-defended providers,
• legal and clinical expertise for handling complex cases,
• kind and compassionate approach to support you through your suffering.

How do you prove negligence in a medical malpractice claim?

In medical malpractice claims, the uniqueness of each case necessitates careful consideration of its specific circumstances and facts. Medical malpractice claims require that the following essential elements must be met.

The patient is owed a duty of care

The first element to establish in a medical malpractice case is that the provider or institution owed the patient a duty of care. In the modern and evolving landscape of healthcare, this may not always be as straightforward as the doctor who sees you in an emergency department, or your family doctor. For example:

1. If many specialists are involved, who was responsible for the issue?
2. When did the ‘most responsible’ physician change during a patient transfer?
3. How much responsibility does a student-doctor have, compared to their supervisor?
4. Does the hospital or other institution (long-term care facility, government, clinic) owe a duty beyond the specific provider?

Though some of these questions have been examined in the case law, parsing out these issues can get complicated. It may even require proving that a novel duty must be considered by the courts. For such cases, legal rules and frameworks exist to help determine if a duty was owed, such as the requirement of proximity (Cooper v. Hobart, 2001 SCC 79; Broome v. PEI, 2010 SCC 11) which evaluates the proximity of the relationship between the provider and the patient.

There was a breach in the standard of care

One of the more difficult and important elements to prove is the standard of care.  Your legal team will try to prove that the healthcare provider or institution failed to meet the standard expected of a reasonable person (Cooper v. Hobart, 2001 SCC 79). Given the variety of medical situations, diagnoses, investigation techniques, and possible interventions, judges cannot know what that standard is; this is why expert evidence, which can be very costly, must be used.

At trial, judges determine the important aspects of the case and how strong the expert evidence that is provided is as a match for the present case. Factors that judges consider include the education level, experience, and qualifications of the doctor, as well as the degree of risk associated with the procedure, the available equipment, facility, and resources (see Tiesmaki v. Wilson, 1974 CanLII 229 (AB KB) for example). The more subspecialized the practitioner, the greater the responsibility and the higher the standard of care that must be upheld.

A harm has been suffered which was caused by the defendant’s negligence

Finally, a harm must have been suffered and caused by the negligence of the defendant. It is useful to consider these together. Although all clients pursue medical malpractice litigation for the purpose of remedying the harm that they have suffered, it can be difficult to prove that this harm was caused by the actions of the defendant.

Proving causation requires that your legal team prove the defendant was liable both legally and medically, which often requires further costly expert evidence.

Types of medical malpractice cases

Error and delays in diagnosis or treatment

Healthcare providers and institutions make mistakes, however, when those errors in diagnostics or in treatment fall below the standard of care, legal action may be warranted. These cases involve instances where there is a breach of the duty of care owed by healthcare professionals, resulting in a deviation from the expected level of skill and competence.

Diagnostic errors occur when healthcare providers fail to accurately identify a patient’s medical condition or misinterpret the symptoms, leading to a delayed, incorrect, or missed diagnosis. These errors can have serious consequences, as they may result in a delay in necessary treatment or the administration of incorrect treatment, potentially causing further harm or worsening the patient’s condition. Examples of diagnosis errors include:

1. misdiagnosis (incorrectly identifying the condition),
2. delayed diagnosis (failing to diagnose in a timely manner), or
3. failure to diagnose altogether.

These errors can arise from inadequate medical examinations, misinterpretation of test results, failure to order necessary tests, or a lack of communication and coordination among healthcare professionals.

Treatment errors occur when healthcare providers make mistakes or act negligently during treatment. This can involve errors in medication administration, surgical procedures, anesthesia, or post-operative care. Treatment errors can lead to serious complications, unnecessary pain and suffering, or even death. Examples of treatment errors include:

1. surgical errors (such as wrong-site surgery or leaving surgical instruments inside the patient),
2. medication errors (such as wrong dosage or incorrect drug administration),
3. failure to monitor a patient’s condition appropriately, or
4. inadequate post-operative care.

These errors may result from lack of communication, fatigue, inadequate training, or negligence.

Failure of informed consent

The failure of informed consent occurs where there is negligence in obtaining consent from a patient. This negligence can occur in different ways, such as failing to properly inform the patient about the procedure, not adequately warning them about the associated risks, or going beyond the instructions given by the patient (Rozovsky, L.E. “Consent to Treatment” Osgoode Hall Law Journal, 1973, 11 (1)(7)).

Initially, the assessment of informed consent focused on the severity of the condition, nature of risks, benefits, and patient characteristics (Male v. Hopmans, 1965 CanLII 159 (ON SC)). However, this approach has been replaced by the reasonable person standard, which considers what a reasonable person would expect to be advised about the intervention, as established in Hopp v. Lepp, [1980] 2 SCR 192 and Reibl v. Hughes, 2 S.C.R. 880. It would be impractical and burdensome to disclose all risks, so the courts often require the disclosure of “material, special, or unusual” risks, as influenced by US authorities and subsequently adopted in Ontario (Dunn v. North York General Hospital, 1989 OJ No 402).

What are some examples of medical malpractice claims?

• Misdiagnosis or delayed diagnosis
• Surgical errors, such as wrong-site surgery or organ perforation
• Anesthesia errors, including dosage mistakes or failure to monitor the patient’s vital signs
• Medication errors, such as prescribing the wrong medication or dosage
• Birth injuries, including injuries to the mother or newborn during childbirth
• Failure to provide appropriate prenatal care, resulting in harm to the mother or fetus
• Negligent post-operative care, leading to complications or infections
• Failure to monitor a patient’s condition or respond to changes in a timely manner
• Failure to obtain informed consent from the patient leading to unwanted interventions and harms
• Errors in laboratory testing or understanding, leading to incorrect diagnoses or treatment plans
• Negligent nursing home or long-term care facility care, resulting in patient harm or neglect
• Negligent mental health treatment, such as failure to assess or properly manage suicidal patients, or to mitigate the harm of those patients on others (3rd party liability).
• Inadequate follow-up care after a medical procedure or treatment
• Failure to refer a patient to a specialist when necessary

If you have experienced any of the above or a similar situation, contact our medical malpractice lawyers today for a free case assessment.

What are the legal steps in a medical malpractice claim?

The process of pursuing a medical malpractice lawsuit is like other forms of tort litigation. The threshold of proof is the “balance of probabilities”, meaning that it must be more likely than not that the case is in favor of the injured party. This contrasts with the criminal standard, known as “beyond a reasonable doubt”, which is a much higher standard.

A medical malpractice lawsuit can be divided into three phases: investigation, the pursuit of settlement, and trial. These phases are not distinct, separate categories, but it is helpful to think of the procedure of a case this way. Other practical considerations include limitation periods and the types of damages available. Not all cases go to trial, and our lawyers seek the best possible outcome for each individual, whether that is settlement or proceeding through trial.

Investigation

During the investigation phase of a medical malpractice case, the legal team will gather information from the potential client. This information includes their narrative and often medical documentation (practitioner records, blood-work and diagnostic imaging). Experts are often contacted during the investigative phase, however, at MacGillivray Law, we have regular access to clinical expertise to help streamline this process and reduce costs for the client.

The purpose is to start to prepare the arguments and to determine parties; however, this is also a critical step for filtering out cases that have no chance of success. Medical malpractice lawsuits are long, complicated, and very costly – putting a claimant through that unnecessarily is unethical and helps neither the legal team nor the claimant.

Pursuing Settlement

During the pursuit of settlement in a medical malpractice claim, the legal team submits arguments, drafts proposals, and could engage in various ‘alternative dispute resolution’ methods. This process is much more flexible than trial. The legal teams exchange letters and negotiate or commit to meeting with a mediator to help reach a settlement. The goal is to avoid going to trial, which is a much more formal stage that has delays, uncertainty, and increased costs.

Trial

When a settlement cannot be reached, the medical malpractice case proceeds to trial. This requires the formalizing of evidence such as discoveries. The lawyers present pre-trial motions to the court, addressing matters such as the admissibility of evidence, witness testimony, or the potential dismissal of certain claims. Trial dates are arranged, which can take time because the court, both parties, the witnesses and experts must all be accommodated.

Of course, if either party is dissatisfied with the verdict, they may have the option to file an appeal and seek a review by a higher court. It is important to note that the specific details and duration of each phase can vary depending on the jurisdiction and complexity of the case.

How long do I have to file a medical malpractice claim in Nova Scotia?

Limitation periods are legal time limits that set out the period within which a lawsuit can be filed.

In Nova Scotia, under Section 8(1)-(3) of the Limitation of Actions Act, SNS 2014, c 35, you must file a medical malpractice lawsuit within two years from the time that the harm occurred, or when the patient should have realized that the harm occurred. Notable exceptions include:

• Minors: Section 18 of the Act states that the limitation periods do not run while a claimant is a minor.
• Incapacity: Section 19 states that the limitation period does not begin while the potential claimant is incapable of bringing a claim forward, due to physical, mental, or psychological condition.
• Judge’s discernment: Though a judge may accept a late claim, Section 12(6) states that their discernment cannot prolong the expiry further than another two years (or four years in total).

How long do I have to file a medical malpractice claim in New Brunswick?

Limitation periods are legal time limits that set out the period within which a lawsuit can be filed.

Generally, in New Brunswick, under Section 5(1) and (2) of the Limitation of Actions Act, SNB 2009, c L-8.5, you must file a medical malpractice lawsuit within two years from the time that the harm occurred, or fifteen years from the day on which the act or omission on which the claim is based occurred. An individual seeking compensation should assume that the shorter limitation period is applicable. Notable exceptions include:

• Minors: Section 17 of the Act states that the limitation periods do not run while a claimant is a minor.
• Incapacity: Section 18 states that the limitation period does not begin while the potential claimant is incapable of bringing a claim forward, due to physical, mental, or psychological condition.

How long do I have to file a medical malpractice claim in Newfoundland and Labrador?

Limitation periods are legal time limits that set out the period within which a lawsuit can be filed.

In Newfoundland & Labrador, under Section 5 of the Limitations Act, SNL 1995, c L-16.1, you must file a medical malpractice lawsuit within two years from the time that the harm occurred, or when the patient should have realized that the harm occurred. Otherwise, notable exceptions include:

• Incapacity/Disability: Section 15 of the Act states that the limitation periods do not run while the person is unable to advance a claim due to disability or being a minor.

How long do I have to file a medical malpractice claim in Prince Edward Island?

Limitation periods are legal time limits that set out the period within which a lawsuit can be filed.

In Prince Edward Island, under Section 2(1)(b) and (d) of the Statute of Limitations, RSPEI 1988, c S-7, you must file a medical malpractice lawsuit within two years from the time that the harm occurred, or when the patient should have realized that the harm occurred. Notable exceptions include:

• Incapacity/Disability: Section 5 of the Act states that the limitation periods do not run while the person is unable to advance a claim due to disability or being a minor.

How much is my medical malpractice claim worth?

The amount of money you receive in a medical malpractice claim will depend on all the facts of your situation. The purpose of tort litigation is to return the injured party to the position they were in before the harm that they suffered. In medical malpractice cases, this cannot be the return of health and wellness. Instead, the courts award monetary compensation, or damages. Awards of damages include both pecuniary and non-pecuniary damages.

Pecuniary damages refer to the financial losses suffered by the patient. This type covers a wide range of loss, including special damages like lost wages to date, as well as general damages for future loss of working capacity, such as loss of earnings, homemaking capacity, or shared family income. Additionally, general damages for future costs of care and any collateral benefits received by the patient may also be considered.

On the other hand, non-pecuniary damages are damages that are other than financial losses, such as pain and suffering and the loss of enjoyment of life, as well as punitive and aggravated damages. Punitive damages are very rare, which are imposed by a judge to punish the party being sued for immoral behavior, while aggravated damages are added when there is something unfortunately particularly tragic about the case.

It is important to note that Canadian law places limits on these types of damages. Currently, non-pecuniary damages are capped at $429,500 as of 2023, although this cap can be exceeded in cases involving severely affected individuals.