How Do You Determine If You Have a Case for Medical Malpractice?
Medical malpractice cases involve their own unique sets of circumstances, facts, and parties. No two cases are identical. Assessing whether or not a case has merit is a difficult and complicated process. Because of the nature of medical malpractice cases, both a legal and medical analysis are required in order to not only assess the potential viability of a claim but also to prove that negligence occurred in a court of law.
It is important to note that not every bad medical outcome is grounds for a medical malpractice case. While modern medicine provides many patients with better health and longer lives, it also presents inherent risks and potential for harm, even for procedures or treatments that are considered routine. Past medical histories and unforeseen complications can pose a threat to a positive outcome. This reality is important to remember when trying to determine if you may have a medical malpractice case.
In this blog, we’ll cover the fundamental elements many patients consider when trying to determine if they were a victim of medical malpractice. In order to fully assess whether or not you have a case, however, we strongly suggest that you contact a medical malpractice lawyer immediately. A lawyer can review the information available to make an informed determination about your case. They can obtain and review your medical records, analyze the facts of the case, and determine whether a medical provider was likely negligent. They will take into consideration a wide variety of variables like the applicable statute of limitations, any Province-specific procedural rules and regulations, the type of injury sustained, the likelihood for recovery, and past and future financial losses.
Common Reasons Why People File Medical Malpractice Claims
The types of medical malpractice cases vary widely. Types of cases that occur in Canada include:
- Failures related to obstetrics and prenatal testing that result in birth injuries to the infant and/or the mother
- Failure of physicians to provide an accurate or timely diagnosis
- Failure of physicians to properly treat a medical condition or to provide timely treatment of a medical condition
- Failure of physicians to obtain informed consent from a patient
- Surgical errors including wrong-site surgeries
- Errors related to faulty medical and laboratory equipment
- Errors related to the prescription and distribution of medications
It is important to note that negligence could occur at various stages in a patient’s treatment and by various medical providers. One medical malpractice case may include allegations of negligence committed by a doctor, nurse, pharmacist, laboratory technician, and hospital or several or all of them.
Determining the Statute of Limitations
Because time is of the essence when filing a medical malpractice case, the first thing you need to be aware of is the applicable statute of limitations. The statute of limitations determines how much time you have to file a lawsuit. In Canada, each province has their own specific statutes, but most allow for two years to commence your claim. That two-year time period begins running as soon as you become aware that a medical professional’s negligence may have caused your injury or the date a reasonable person should have known. In some provinces, the two-year limitation may begin running as soon as the patient-doctor relationship is established. The most notable exception to the two-year statute is in birth injury cases. In those cases, the two-year statute begins after the child reaches the age of majority, which varies by province, but is typically either 18 or 19. Medical negligence cases are especially complex in determining the statute of limitations because victims sometimes aren’t aware that their injuries were the result of medical negligence, or the injury does not occur immediately, as is the case with missed or delayed diagnosis cases.
If you fail to file your claim before the statute of limitations runs, you’ll be forever barred from doing so. Determining the applicable statute of limitations can be nuanced and requires a lawyer’s expertise. It is vital to seek guidance from a qualified lawyer as soon as you become aware that you may have been the victim of medical negligence so that you don’t lose your right to file your claim. Seeking legal advice early on will allow your lawyers sufficient time to conduct a thorough review of the facts of your case and obtain any additional information needed.
Establishing Negligence Occurred
As discussed previously, not all negative outcomes constitute medical malpractice. In order for your injury to be considered the result of malpractice, you’ll need to establish that the medical provider was negligent. The basic fundamentals of establishing medical negligence include:
- Establishing that a patient-medical professional relationship existed
- Establishing that the medical professional owed you a duty of care
- Establishing that the medical professional was negligent because they failed to provide you with the standard of care required
Who Is Responsible for the Negligence?
If you believe medical negligence has occurred, you’ll next need to consider which medical providers and/or institutions were responsible for the negligence. This will determine who should be named in the Notice of Civil Claim (the filing that will initiate your medical malpractice case.) It’s not just doctors who are sued for medical malpractice. Because the nature of medicine often calls for teams of medical professionals to provide treatment to a patient in a collaborative effort, medical malpractice cases can involve multiple members of a medical team.
Malpractice negligence claims may name these types of medical providers and facilities:
- Primary care doctors
- Nurses and nursing assistants
- Medical and laboratory technicians
- Physical therapists
- Psychiatric hospitals
- Chiropractors and chiropractic offices
- Other healthcare facilities
Facilities are often named in medical negligence cases when an employee of theirs acted in a negligent way thus making them potentially responsible, at least in part, for the injuries a patient sustained. While multiple defendants may be named in a single medical malpractice case, it’s still imperative to establish if and how each of those defendants was negligent in your care and how their negligence caused or contributed to your injury.
Finding the Proof
Proving a medical malpractice case in a court of law requires evidence. The burden of proving that medical negligence occurred and that the negligence caused the plaintiff’s injuries falls to the plaintiff. That means it is critical to collect as much evidence as possible to help prove your case. You may already be in possession of some critical pieces of evidence, including:
- Medical records
- Medical bills
- Doctor’s notes
- Credit card receipts or other receipts of payment
The most important thing you can do now is to not throw anything away! You never know what may be vital to your case. A lawyer will help you determine what is relevant and important for establishing liability in your case.
Your doctors will maintain copies of your medical records too. Medical records are vital in medical negligence cases because they provide an overview of what happened (or did not happen), serve to establish a patient-physician relationship, and provide an overview of your past medical history. The College of Physicians and Surgeons of British Columbia requires physicians to retain patient medical records for a minimum of 16 years from the date of the patient’s last visit or the date the patient reaches the age of majority, whichever date comes first. The Hospital Act Regulation in British Columbia requires hospitals and other healthcare facilities to maintain a copy of a patient’s medical records for 10 years for primary documents, six years for secondary documents, and one year for transitory documents, beginning from the date that patient was discharged from receiving inpatient or outpatient care. You have a right to request and obtain a copy of your complete medical records. Your lawyer will request any and all medical records from healthcare facilities, hospitals, and doctors who provided you care.
Throughout the case, experts for the plaintiff will provide evidence to the court to help prove your case, while experts for the defence will provide evidence to dispute it. Medical negligence cases often involve many experts who have specific qualifications including medical specialties, forensics, or pathology. The evidence they provide will be crucial in proving your case.
Assessing Your Damages
Damages vary widely in medical malpractice cases and can only be appropriately assessed after considering the unique facts of the case. In most cases, the amount of damages awarded will depend on factors such as how your injury affects your earning potential and quality of life. It will be important for you to provide your lawyer with information regarding your employment history, medical bills you’ve paid, and information regarding additional expenses you pay as a result of your injury. Examples include hiring a housekeeper or babysitter, hiring an in-home nurse or medical aid, or paying for medical equipment like a wheelchair. Ultimately, the court will decide if you should be awarded damages and how much should be awarded.
The Reality of Medical Malpractice Cases
In addition to being incredibly complex, most medical malpractice cases also take a considerable amount of time to reach a resolution. While some cases settle prior to trial or, in exceptional circumstances, before a lawsuit is filed, the vast majority of cases must go through a lengthy litigation process. This process typically takes years to reach a resolution.
Most physicians in Canada are members of the Canadian Medical Protective Association (CMPA). This organization provides legal assistance to doctors who have been accused of medical malpractice. They will likely mount an aggressive defence and work to disprove and undermine the allegations made. They will likely obtain key experts to provide evidence that will aim to demonstrate that either the physician was not negligent or that their negligence did not cause or contribute to your injury.
Have You or a Loved One Been Harmed by Medical Malpractice?
Klein Lawyers handles medical malpractice cases, has a stellar reputation, and has an outstanding track record. We understand how to identify instances of malpractice where diagnostic errors and negligence harmed innocent victims. We have the resources, knowledge, and experience Canadians need to get the justice and compensation they deserve.
We will start by conducting an in-depth investigation of the evidence in your case. We will take the time to really listen to your story, obtain and review any needed records, and thoroughly evaluate your potential claim. During the case, we will retain key medical experts to establish the critical details of the injury that occurred. We strive to make this process as easy for you as possible, shouldering as much weight as we can. Our aim is that you focus on your life, while we focus on your case.
We keep you informed throughout the entire case, so you never feel like you are in the dark. We want you to understand what’s going on and feel comfortable asking any questions along the way. Too often, we hear concerns expressed from potential clients about what the process will be like, what they will need to do, how often they will hear from their lawyers, and what will be expected of them. We will make it clear right from the start. You will know what to expect, and we will stay true to our commitment to you. Communication and transparency are important to our team, and you will recognize that as our client.
Klein Lawyers Can Help
Klein Lawyers has over 20 years of success and experience in the legal field. During that time, we’ve worked hard to earn the trust and respect of Canadians who need legal representation. Working with an experienced lawyer is critical, and our team understands the trust clients place in us when representing them. We value that trust and feel honoured that so many clients choose our law firm to fight for them. We are passionate about obtaining the best possible outcome for our clients. While we know it is never easy, we will not stop standing up to medical professionals who harm individuals through their negligence.
Contact Us Today
Contact the Klein Lawyers team today at (604) 874-7171 for a free consultation of your claim with a Vancouver medical malpractice lawyer. We serve clients throughout British Columbia and Canada. There’s no obligation, and your consultation is completely confidential. We’re here to help victims of medical malpractice receive the justice they deserve.