How Hard Is It to Sue a Doctor for Medical Malpractice?
Medical malpractice can be extremely difficult to prove. This is attributable in part to the complexity of modern medicine, as well as the legal protections and resources doctors and other medical providers enjoy.
It is important to know what challenges you face if you are harmed as a result of a doctor’s error. An experienced medical malpractice lawyer at Klein Lawyers can help you pursue the compensation you deserve for your injuries and damages.
Why Is It So Hard to Sue a Doctor?
One of the biggest misconceptions patients have is that any type of injury suffered while receiving medical care constitutes malpractice. In reality, specific conditions must be met for a doctor to be liable for harming a patient.
First and foremost, simple mistakes do not tend to be sufficient grounds for a viable medical malpractice claim. Rather, you must show that the doctor was negligent.
What Is Considered Negligence by a Doctor?
Medical negligence is the failure of a healthcare provider to uphold the standard of care required of a practitioner who is (a) similarly qualified and (b) facing the same situation as the defendant in your case. The standard of care refers to the actions considered acceptable by the medical community. So, if a doctor deviates from the accepted course and this deviation results in injury that the provider should have reasonably foreseen, this likely constitutes medical negligence.
Doctors are held to a high standard, but they are not expected to be perfect. As such, simple mistakes tend not to be sufficient grounds for a medical malpractice claim.
The same is true of conditions that predictably get worse over time despite proper intervention, as well as adverse treatment outcomes. Sometimes complications arise even when the doctors and staff do everything right. In these scenarios, it would be difficult to argue that the doctor’s negligence led to your injuries.
What Evidence Do I Need to Prove That the Doctor Was Negligent?
Another significant challenge in suing a doctor for medical malpractice is presenting compelling evidence of negligence or wrongdoing. The evidence in these cases (such as the patient’s medical records) is often difficult for a layperson to read and understand. Furthermore, proof of malpractice on the doctor’s part is generally not obvious from records alone.
Expert testimony is essential for bringing a medical malpractice claim against your doctor. When it comes to the standard of care and the negligence that led to your injuries, one or more of the expert witnesses need to have similar qualifications to the defendant doctor (i.e., a surgical error claim requires expert testimony from a surgeon with the same specialty).
Proving negligence can be made more difficult if you are suing a doctor with a very specific specialty. Your lawyer may need to cast a wide net to find an expert with the right background to support your claim against a specialist.
How Long Do I Have to Sue a Doctor?
Most medical malpractice claims are governed by the basic limitation period found in Part 2 of the British Columbia Limitation Act. Generally, you have 2 years to bring a claim against your doctor for injuries sustained due to medical negligence.
The limitation period may be postponed, however, if either of the following conditions are met:
- The claimant did not discover or could not have reasonably discovered the injury or its cause within the basic limitation period (Limitation Act Part 2, Division 2, Section 8 — Discovery of Claim). If this is the case, the limitation period is 2 years from the date of discovery.
- A minor suffers injury, in which case the limitation period is within 2 years of the child reaching the age of majority (19) or the date the injury was discovered – whichever is later (Limitation Act Part 2, Division 3, Section 18).
Two years is an extremely limited amount of time to take legal action, especially given the complexities of medical malpractice litigation. It takes time to collect evidence, arrange expert testimony, and more. Furthermore, if you bring a claim after the basic limitation period expires, you run the risk of the court dismissing your claim if it determines that you should have reasonably discovered the injury earlier.
Do Most Medical Malpractice Cases Settle?
The legal support available to doctors presents another major challenge that makes it difficult to recover compensation for injuries sustained as a result of medical negligence. Most doctors belong to the Canadian Medical Protective Association (CMPA), which defends them when patients bring lawsuits.
Unlike an insurance company, the CMPA generally doesn’t consider the cost of litigation or the risks of going to trial when defending claims. Except in cases where a doctor is very obviously in the wrong, lawyers for the CMPA are unlikely to offer a favourable settlement. If the merits of the case can be argued, the CMPA is typically willing to argue them at trial. Even patients who have been seriously harmed have been forced to wait years for their day in court – with some dropping their claims in the meantime.
Another challenging situation arises if your medical malpractice claim arises from negligent care in a hospital. If a doctor at the hospital caused you harm, you will likely need to name both the doctor and the hospital in your claim. The hospital’s insurance carrier (likely the British Columbia Health Care Protection Program) will get involved if the hospital is sued.
Hospitals can suffer significant damage to their reputation if a doctor is accused of malpractice. As such, it is not uncommon for hospitals and their insurers to mount a significant defence when patients bring claims of medical negligence. Hospitals have far more money and resources than their patients, and they will use these assets to try to pay you as little as possible.
Nobody who seeks medical care expects the doctor to make a serious error. Unfortunately, medical negligence is alarmingly common, frequently leading to serious injuries and even the death of patients.
You and your family may be entitled to compensation for losses stemming from medical malpractice. However, bringing a claim against a doctor, hospital, or other provider is difficult.
A knowledgeable lawyer can help you navigate the challenges of your medical malpractice claim and pursue the compensation you deserve. Klein Lawyers is experienced in a wide range of complex claims, and we can examine the facts, collect necessary evidence, hire experts, and take additional steps to build a strong case on your behalf.
Please call Klein Lawyers at (604) 874-7171 today for a free consultation. Our medical malpractice lawyers serve clients in Vancouver and throughout British Columbia.