MEDICAL MALPRACTICE

Choosing a lawyer with expertise in medical malpractice is the key to a successful outcome.

My firm represents individuals or the families of those who have suffered serious injury or have died as a result of negligence committed by physicians, nurses, hospitals and other healthcare providers such as mid-wives, chiropractors, acupuncturists, cosmetic surgeons and clinics.  Medical negligence cases are extremely complex and require detailed review of highly technical medical files, interpretation by specialized experts and the integration of law, medicine and science. However, not every bad outcome will fit the criteria for a successful medical malpractice lawsuit.

What is Medical Malpractice?

There are three very specific elements which must all be present in order to win: fault, damages (an injury) and causation. If even one of these elements is missing the case will not succeed.

FAULT

Fault is an act or omission (failure to act) which falls below the "standard of care" or "norms of practice" for the professional in question. To determine if there is fault the court will examine the following elements:

1. What is the applicable "standard of care"?
   Your doctor need not be the smartest or best in the field.  The test in law only requires that he or she act as an average, prudent and diligent physician would act in similar circumstances.
2. Similar circumstances
   The law takes into account regional standards and the level of training the professional in question possesses. For example, a mid-wife or G.P. delivering a baby in a remote region cannot be compared to the standard of care of an obstetrician delivering a baby in a major university teaching hospital.
3. Time of evaluating the act in question
   A judge will decide whether an act constitutes negligence by examining the situation at the moment the decision was made, not at a later time when, in retrospect, the best decision may have been obvious.

Fault is not a matter of having made a "judgment call". This occurs most frequently in a situation where there are several valid options to treat a particular medical problem.  For example, psychiatrist "A" recommends a particular medication, whereas psychiatrist "B" prefers to prescribe another class of medication or none at all. Both options may constitute valid treatment plans. However, to be classified as a judgment call (meaning the act or decision does not constitute negligence) the decision arrived at must be based on a diligent and reasoned approach to the clinical problem at hand.

DAMAGES (Injury)

An identifiable injury must have occurred. For example, if administration of the wrong medication had no ill effect, a lawsuit will not succeed even though a negligent act was committed.

CAUSATION

Once fault and injury have been proven, the law then asks: "Is the fault the direct cause of the injury?" and "Would it have made a difference to the outcome if the alleged act or omission had not occurred?" This can be difficult to prove in cases where the patient had a serious underlying illness before the fault was committed.

COMPENSATION (also known as Damages)

Compensation for personal injuries is based upon the degree and permanency of your injuries.  There are several categories of compensation that a court looks at in awarding compensation in a medical malpractice case.

Economic loss such as lost income and lost business revenue is a major issue in personal injury cases. You may also seek payment of past and future medical expenses, out of pocket expenses, and lost earning capacity if you are forced to change careers.

The court will also take into account the period during which the person was totally incapacitated and recovering from the injury (called total temporary incapacity).  Most importantly, there will be a determination about the degree of permanent incapacity that exists and is directly related to the negligent act.

In some cases where a child or adult is severely handicapped the cost of future care is not covered by existing services and therefore can be claimed as additional compensation.

Lastly, there will be compensation for the intangible aspect of your injury namely, the pain, suffering, and inconvenience you endured.  At present this category has a ceiling of approximately $322,000 for the worst case scenario, for example the amount awarded to a quadriplegic for pain, suffering and inconvenience.

BURDEN OF PROOF

The Plaintiff, namely the injured party, has the burden of proving that the Defendant has been negligent and is the direct cause of the injury.  In exceptional cases of flagrant negligence, this burden of proof is reversed so that the Defendant will have to show that they did not cause the injury.

TIME LIMITATIONS

In Quebec a lawsuit must be filed within three years of the negligent act, or within three years from the date the injury manifested itself.  This is a strict deadline which will not permit a person to argue that they were simply too sick to respond within the three year period. Consequently, it is important to consult an attorney as soon as your injury is known.