When A Doctor Makes A Mistake
FALL 2015
When a doctor makes a mistake
As one of the most respected professions, health care
professionals take great pride in helping people during some
of life’s most difficult times. However, we can’t forget that
medical practitioners are humans and, like all humans, they
can make mistakes. These mistakes don’t make them horrible
people, but in matters of life and death, mistakes can be
tragic.
As much as everyone involved would like to turn back time
and avoid critical errors, when medical negligence occurs,
often the only remedy is a lawsuit aimed at compensating the
victims of these errors.
At SorbaraLaw, our litigation team is known for its expertise
and skill in medical negligence cases, having won all the way
to the Supreme Court of Canada. When we meet clients who
are facing the unimaginable, we often hear the same
misconceptions about bringing a lawsuit, as well as the same
questions, “what would I have to prove”, followed by, “what
should I do now?”
What do I have to prove?
At law, a plaintiff pursuing a claim against medical
professionals must establish both that a breach of the
standard of care owed to him or her has occurred and that the
breach has caused an injury. When a court finds that both
elements have been proved on the balance, negligence is
found to have occurred and the Court then moves on to a
determination of the damages to be awarded.
In order to establish negligence, all lawyers – including the
lawyers who represent the physicians, nurses, and hospitals –
retain medical experts who, along with the lawyers, review the
evidence and provide the Court with opinions as to the actions
of the parties.
The standard of care is the legal term used to describe the
level of care that a medical practitioner is required to deliver.
To find a breach of the standard of care owed, evidence must
be presented to a court that establishes that a medical
practitioner failed to do something that he or she ought to
have done, or did something that he or she ought not to have
done. Malpractice can occur from a course of conduct
undertaken by the physician, for example, by the physician
proceeding without obtaining informed consent, or by the
physician’s failure to take appropriate action to treat the
patient’s condition, for example, by failing to properly
diagnose a condition when a reasonable physician would
have properly diagnosed.
It is important to keep in mind that the medical team will not
be held to a standard of perfection by the law. Medical
practitioners are permitted to be wrong, provided the error in
judgment is one that falls within a reasonable expectation. For
example, a misdiagnosis of a medical condition isn’t always a
breach of the standard of care where the medical practitioner
conducted the proper investigation, ordered the necessary
tests and reached a conclusion that many other physicians in
his or her shoes would have reached. A breach of the
standard of care goes beyond a mistake and represents a
negligent act or omission.
In addition to a positive finding on the issue of the standard of
care, evidence must also establish that the breach of the
standard of care by the treating medical team ultimately
caused the patient injuries, or in the alternative, has caused
the patient’s condition to be worse than it otherwise would
have been. This latter part of the negligence equation can
become quite complex and requires the expertise, not just of
the medical experts on the case, but the legal team.
Damages
Inevitably, individuals coming to see us about a potential
claim in medical negligence ask, “What’s it worth?” Damages
in these complex claims can be difficult to predict at the
outset. Often, a review of the medical evidence, including
current treatments and needs, is required before such broad
stroke estimates can be given. What we do know is that there
is a common misconception that general damages, also
known as damages for “pain and suffering”, or “loss of
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enjoyment of life” are not as high as south of the border or the
awards we see on media and television. In Canada, damages
for this category of compensation have been significantly
limited by the Supreme Court of Canada which, in 1978,
considered this and held that the maximum amount of money
an injured plaintiff could receive for “pain and suffering” was
$100,000. That amount has gradually increased over time to
keep up with inflation, and is currently at approximately
$350,000.
In addition to general damages, individuals who have suffered
from a breach of the care required of their medical team will
also be entitled to seek damages to compensate them for the
costs of any past and future treatment that may now be
necessary, any past and future loss of income – which would
include damages for any loss of competitive advantage in the
workforce that results from the injuries sustained compensation for household and housekeeping costs incurred
as a result of the injuries sustained, as well as reimbursement
for any out-of-pocket expenses arising from the injuries. Of
course, as in any litigation, a successful party in a lawsuit is
also entitled to a contribution to the legal costs incurred to
proceed with the action.
In addition to misconceptions about the quantum of damages
that may be available, individuals coming to meet our team of
lawyers often believe that doctors are simply too powerful to
sue. While it is very true that medical malpractice actions are
extremely complex and can be difficult, a skilled lawyer who
has extensive experience in this area knows that it can be
done.
Most physicians in Canada are members of the Canadian
Medical Protective Association (the “CMPA”), whose primary
function is protecting the professional integrity of physicians.
When a lawsuit is started as against a member of the CMPA,
it is the CMPA that pays for the doctor’s defence costs,
including hiring a lawyer, medical experts, and any other fees
associated with the claim. When a lawsuit is either settled or
won, the CMPA pays the Plaintiff the damages awarded.
It is also not true that all doctors stick together and that it will
be difficult to obtain a report from a medical expert that
confirms that the medical team made a critical error. Although
there are many physicians who are uncomfortable with the
litigation process and testifying against colleagues, lawyers
who have experience in this field of law have access to
credible experts who will review the case and provide an
objective assessment of the treatment received, allowing the
patient to make informed decisions about the potential case. It
is important to appreciate that these actions don’t often settle
in the early stages of litigation. Having a lawyer that does not
merely dabble in this area of law will ensure that you have
someone on your team who is experienced in dealing with the
CMPA, its team of defence lawyers, and medical experts and
knows how to proceed strategically through each step in the
litigation.
Next Steps
At SorbaraLaw, we make the following recommendations to
those who are not sure whether they have suffered from
someone else’s medical negligence:
1.
Advocate for yourself. Always.
2.
Where your family doctor may be at fault, seek out a
new family doctor. Not necessarily because you
have a bad doctor, but because this is a very
important relationship and is key to your medical
health. Where the relationship has broken down, you
need to advocate for yourself first and ensure that
you feel comfortable with your care moving forward.
Do similarly if it was not your family doctor but you
are still being treated by the individual.
3.
Collect your medical records. If the incident occurred
at a hospital, go to the records department and
request a copy of your medical records. If your family
doctor may be at fault, ask for a copy of those
records.
4.
As difficult as it may be, write down everything you
remember about the relevant events. Keep recording,
moving forward, anything related to the injuries you
have sustained.
5.
Where appropriate, take photographs of your injuries.
6.
Keep the limitation period in mind when considering
whether to start a lawsuit. It is important to
appreciate that in Ontario, the Limitations Act
prohibits any lawsuit from being commenced after
the second anniversary of the claim or the discovery
of the claim.
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7.
Call a lawyer and obtain a free consultation to learn
more about the above, and how to proceed to
investigate your claim.
About the Author
Cynthia Davis
Cynthia Davis. Cynthia Davis is a member of the SorbaraLaw
litigation group and practises in the areas of civil litigation and
citizenship and immigration.
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This article is intended only to inform and educate. It is not legal
advice. Be sure to contact a lawyer to obtain legal advice on any specific matter.
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