A General Overview
The area of law known as medical malpractice encompasses civil claims filed against medical providers for medical negligence and failing to provide proper medical care. The standard for proper medical care is established on the practices accepted within the medical profession. Medical malpractice cases are inherently complex and vary widely in nature, making them very difficult to prove. It is important to note that an adverse outcome or a simple mistake made by a medical provider does not always constitute grounds for a medical malpractice claim. A medical malpractice claim must involve an element of negligence. Negligence occurs when there is a clear failure to take proper medical care, either through action or inaction, and that failure results in harm and injury to another person. Typically, a medical malpractice claim would be filed by the patient who has been harmed or by their family members. Every province in Canada has specific procedural rules and regulations regarding medical malpractice claims.
Examples of Medical Malpractice Cases
Common medical malpractice claims include:
- Birth injury
- Obstetrics & Gynaecology malpractice
- Pre-natal testing errors
- Missed diagnosis
- Delayed diagnosis
- Failure to properly treat a condition
- Failure to timely treat a condition
- Surgical errors
- Anesthesia errors
- Hospital errors
- Nursing errors
- Laboratory errors
- Failure to obtain informed consent
- Prescription errors
Elements of a Medical Malpractice Claim
The evidence in a medical malpractice claim must be able to demonstrate the medical provider failed to provide proper care under the circumstances. In order to establish a viable medical malpractice claim, key elements must be established:
- You were a patient of the medical provider, and, thus, they owed you a duty of care.
- The services and treatment the medical practitioner provided fell below the standard of care established in the medical profession. This represents a breach of their duty through negligence.
- The injuries sustained could have been reasonably foreseeable.
- As a direct result of their negligence, you were harmed and sustained injuries.
- Your injuries resulted in substantial, demonstrable damages.
Who Is the Claim Filed Against?
It is important to note that medical malpractice claims, because of the inherently collaborative nature of medical care, often involve one or multiple medical providers. In addition, the hospital, healthcare facility, care center, or pharmacy that employed the medical providers can also be named as defendants in the claim. While a variety of those parties may be liable for harm or injuries sustained, it will be critical to prove that each individual defendant was negligent and breached their duties to you.
Malpractice claims can be filed against medical providers and facilities like:
- Physician assistants
- Medical technicians
- Physical therapists
- Healthcare facilities
How Long Do I Have to File a Claim?
You do have a deadline or time limit wherein your medical malpractice claim must be filed. It’s called statutory limitation. If the statute of limitations passes, you will be forever barred from filing a claim. That’s why it’s incredibly important to reach out to a malpractice lawyer as soon as possible. Statutes of limitations vary by province. For many provinces, the statute of limitations is only two years after the date of injury or date your claim is reasonably discovered, which means the date you became aware or should have become aware, that your medical provider’s negligence caused you injury. Two years may sound like a long time, but because malpractice claims are so complex and involve large amounts of medical records, the sooner you contact a lawyer, the more time they have to thoroughly investigate your claim. One exception to the typical two-year statutory limitation that begins running as soon as you discover your claim, or ought to have discovered it, is in birth injury cases. For those cases, the two-year statute begins after the child reaches the age of majority, which varies by province.
After the Claim Is Filed, How Long Will the Case Take?
Because medical malpractice claims are incredibly complex, they typically take a significant amount of time to go through the litigation process and, ultimately, resolve. After your lawyers have determined that you have a viable claim, a lawsuit will be filed naming all defendants (the medical providers and facilities who are believed to have been negligent in your care.) Here are some of the common phases that occur during a medical malpractice claim:
- Document discovery: During this phase of the case, each side will have an opportunity to obtain as much information as possible about the other parties and the incident. You can expect lots of written questions that will be answered. Often, you will be asked to admit or deny specific written statements. It will also be necessary to produce documents and medical records. This will include records directly related to the malpractice incident, but it will also include other records that help to provide a complete medical history for you, as well as records relating to income and other financial losses. Those records are likely to be very lengthy, often thousands of pages. Both sides, and their respective experts, will conduct an in-depth examination of the records, allowing the experts to provide their key medical opinions. For the plaintiff, those opinions will help to build the case against the medical providers and establish how they breached the standard of care and how that resulted in harm or injury.
- Examinations for Discovery: In this key phase, each side will get to examine the other parties named in the claim. This means that questions are asked under oath and everything is recorded. The legal teams representing the plaintiff(s) and defendants(s) will try to obtain as much information as possible about the injuries sustained, medical histories, employment records, and, of course, the incident itself.
- Chambers Applications: Throughout the case, there may be numerous applications filed and hearings associated with those applications. This is a normal part of litigation. An application involves requests you are asking the court to grant on your behalf and arguments of counsel for the parties for and against those requests.
- Mediation: Either party may require the other party or parties to attend a mediation, and both or all parties may agree to attend an arbitration hearing before going to trial. The goal of mediation is to reach an agreement or settlement without needing to go to trial. It also removes some of the typical formalities of court. The result of a mediation is not binding, while the result of arbitration normally is. Binding simply means that the result is final.
- Trial: If your case doesn’t settle during mediation or arbitration, or by way of direct negotiation between the parties, it will go to trial. It’s not unusual for a malpractice claim to have gone on for two, three or more years before the trial takes place. After judgment is granted in your case, there may be an appeal of the result by one of the parties that may result in further applications and court hearings.
What Compensation Can I Recover in a Medical Malpractice Claim?
Because the results of medical negligence can cause devasting effects on a person’s life, experienced lawyers will try and help you recover as much compensation as possible based on your injuries and the damages you’ve suffered. Those damages may include:
- Current and future medical expenses, including hospitalization, surgeries, medications, therapy, and counselling
- Loss of income
- Loss of earning capacity
- Out-of-pocket expenses
- Costs for long-term care, including home healthcare services and modifications to your home and vehicle
- Pain and suffering
- Loss of enjoyment of life
If a medical malpractice incident resulted in the death of a loved one, you can also pursue damages for a wrongful death claim. In that case, compensation may include the loss of economic support, household contributions, and inheritance. You can also receive compensation for the cost of medical expenses incurred before the death of your loved one and for funeral and burial or cremation expenses.
The Supreme Court of Canada has put a cap on the amount of compensation you can recover for general damages, also known as non-pecuniary damages. These include pain and suffering, loss of amenities, and loss of enjoyment of life. Essentially, these are the damages that are impossible to precisely quantify but compensate for the impact of the injury on your quality of life. This cap is currently set at $381,481.48 and is adjusted for inflation over time. When the limit was initially set in 1978, it stood at $100,000. Broad limits also exist for punitive damages or damages intended to punish the defendant and, ultimately, discourage future misconduct. There are no limits, however, for other types of damages like loss of income, loss of earning capacity, out-of-pocket expenses, and costs for long-term care.
How Much Will My Medical Malpractice Claim Cost Me?
The majority of medical malpractice lawyers in Canada work on a contingency fee basis. This typically means that you will not be charged an hourly rate for their services, but, rather, they will receive a portion of the settlement recovery. They are only paid if a settlement is reached. Usually, the fees and expenses that occur during the investigation and litigation of a case will also come out of the settlement reached. Examples of these fees include the cost to obtain experts for the case, obtain medical records, and produce discovery. A contingency fee case, therefore, allows victims of medical malpractice to pursue a claim without the worry of how much it costs. The lawyers typically handle the cost to litigate the case without the need for their client to come up with that money out of pocket.
Understanding the Role of the Canadian Medical Protective Association (CMPA)
The Canadian Medical Protective Association (CMPA) is an organization that serves to support and protect its members by defending them in most medical malpractice claims. Nearly all physicians in Canada are members of the CMPA. The CMPA will cover the cost of legal fees for its members and pay out any compensation to patients who win a claim against a physician. One goal of the CMPA is to protect the reputation of its members. That aim serves, in and of itself, to motivate the organization to fight long and hard on behalf of its members. They are willing to spend lots of time and money to defend their physicians against malpractice claims. They have huge financial resources at their disposal that they use to mount an aggressive defence of their members. This is a key factor as to why medical malpractice claims typically take a long time to resolve and why having an experienced lawyer on your side is critical. The CMPA is a powerful entity and adversary.
What To Do If You Believe You Have a Medical Malpractice Claim
If you or a loved one believe you have been harmed by a medical professional and may have a medical malpractice claim, it’s important to trust your instincts. Don’t simply take your medical provider’s word that the injury or harm you suffered was unavoidable. You know when something isn’t right with your health, and listening to what your body is telling you is critical.
Because medical malpractice claims are so incredibly complex, it’s critical to do your part and act quickly in order to pursue a claim. Here are some key tips to follow:
- Keep your records. It is critical that you maintain a copy of all photographs, documents, and records relating to your claim. These documents may become vital pieces of evidence.
- Take photographs. If your injury is visible, take photographs of it over time to document it as much as possible.
- Take notes. Jot down as much as you can remember about the event itself, information about follow-up appointments, how you’re feeling physically and emotionally, and any other details you think may be important.
- Don’t delay. Because statutory limitations do apply to medical malpractice claims, you must act fast.
- Contact an experienced medical malpractice lawyer. Malpractice claims are very complicated and doctors have powerful allies to help defend them. That means you need a lawyer on your side who knows how to handle your case effectively and fight for you.
Why You Need a Medical Malpractice Lawyer
Successful medical malpractice claims are won by experienced lawyers who know how to evaluate, investigate, develop, and litigate a claim. You need to find a lawyer who specializes in medical malpractice cases, has a stellar reputation, has an outstanding track record, and works for an established law firm.
The team at Klein Lawyers is here to help you and your family recover the compensation you deserve for the losses caused by medical malpractice. Our law firm has extensive experience handling complex litigation, and we will draw upon our knowledge, resources, access to experts, and determination to build a claim for damages on your behalf. We’ll conduct an in-depth investigation of the evidence in your case, use medical experts to determine the key details of the injury that occurred, identify if the standard of care was breached and who breached it, and then fight for you to receive the compensation you deserve as a result of your malpractice claim. Our aim is for you to be able to focus on your life, while we focus on your case.
If you suspect that you or a family member suffered harm as a result of medical malpractice, we can help. For more than 20 years, our team has been advocating on behalf of clients in a wide range of complex legal matters.
Contact Klein Lawyers at (604) 874-7171 today for a free consultation with a Vancouver medical malpractice lawyer. We serve clients throughout British Columbia. There’s no obligation, and it’s completely confidential. We’re here to help victims of medical malpractice receive the justice they deserve.