How to Sue for Medical Malpractice in Ontario

Medical malpractice, or medical negligence, occurs when medical professionals — to whom we have entrusted our health and well-being — make mistakes they shouldn’t have. Results can be devastating for a victim of medical malpractice, affecting their ability to work and their way of life or even ending that life. Because of the complexity of medical malpractice claims, experienced legal representation is crucial if you are suing for medical malpractice. This blog will provide a clear guide on how to sue for medical malpractice in Ontario.

What Is Considered Medical Malpractice?

Medical malpractice refers to situations in which healthcare professionals fail to provide the expected standard of care to a patient, leading to significant patient harm. Common examples of medical malpractice in Ontario are misdiagnosis, medication mistakes, failure to provide adequate medical treatment, failure to obtain informed consent, and of course, surgical errors.

How to Know if You Have a Case

If you suspect that you or a loved one may have suffered because of medical negligence, ask yourself these key questions:

• Did your healthcare professionals owe you or your loved one a duty of care?

In most cases, this will be the easiest question to answer since the practitioner-patient relationship is one of trust, and medical personnel are highly trained.

• Was that duty of care breached?

This area can be quite technical and complicated. Some mistakes are easier than others to identify. Doctors and nurses — or the hospital itself — are not expected to be superhuman. Whether a judgment call was reasonable to make or a departure from the standard of care can be hard to determine.

• Did that breach result in harm, and is there evidence to show the connection between the breach and the harm?

Causation is a fundamental element to prove in cases involving any kind of professional negligence, including medical. 

Why You Need to Seek Legal Advice to Determine if You Have a Valid Claim

Medical malpractice suits are often highly technical and complex, and they are rarely quick or easy to resolve. It is unwise to proceed without having an experienced lawyer assessing your case. They are in a better position to tell whether you have evidence to prove your case, the strengths and weaknesses of your claim, how much your claim is worth, and whether or when to settle. Apart from the issue of complexity, there is time and cost.

There are many things most people don’t know about medical malpractice lawsuits, such as:

• Medical professionals will be well-defended. For example, most doctors will be part of the Canadian Medical Protective Association (CMPA), which has billions of dollars for defending members in medical malpractice lawsuits.

• Medical malpractice cases are not easy to “win.” Over half are dismissed or abandoned and over a third end up settling. 

• Medical malpractice claims are expensive. Expert medical opinions are required on both sides — not only to establish or disprove negligence but also to determine the monetary amounts relating to damages (for example, cost of future care). Disbursements can range from $50,000 to $200,000.

There is no excuse to not get legal advice. Most personal injury law firms offer a free consultation.

Things You Need to Prove Medical Malpractice

Medical malpractice is a subset of negligence law. The plaintiff must prove the following core elements:

Duty of Care

People have a general duty not to act in a manner that poses an unreasonable risk to others. Professionals have a more clear-cut duty of care — medical professionals especially — since they often possess a level of expertise and knowledge that most people do not. We trust them to do what we cannot.

Breach of That Duty

For an action or inaction to be considered a breach of a physician’s duty of care, it must be a marked departure from the standard of care expected of a reasonably knowledgeable doctor in the circumstances. Not every mistake will be a breach.

Causation

Essential to any negligence claim is the nexus between the negligent action (or inaction) and the harm caused to the patient. In some cases, there could be multiple causes leading to the ultimate harm suffered, but if you cannot show that the medical practitioner’s negligence was a cause, your claim will fail completely.

Damages

Damages consist of the amount of compensation a court will grant. They include quantifiable damages, such as loss of income, cost of future care, and other things for which monetary value can be calculated based on data. There can also be punitive damages, which don’t compensate but punish/deter, particularly egregious behaviour, and damages for pain and suffering. In Canada, there is a cap on the amount plaintiffs can receive for pain and suffering, which is why we don’t see many cases with huge multimillion-dollar payouts as in the United States.

Evidence Gathering and Investigation

All of the above elements must be supported by evidence. This is why a significant amount of time and effort will be spent obtaining medical records, expert opinions/testimonies, and other documentation. Expert opinions may differ regarding whether something was a departure from the expected standard — and whether it was an egregious departure. Financial information must also be offered to support the amount of compensation sought.

The Process of Suing for Medical Malpractice in Ontario

Here is a step-by-step overview of most medical malpractice suits in Ontario:

Consulting a Lawyer Experienced in Medical Malpractice

If you believe you have a viable medical malpractice claim, you should seek legal advice as soon as practicable. In the early stages, a personal injury lawyer can help you negotiate with insurance companies and other parties and gather the evidence you will need to present your strongest case. In many cases, crucial medical information — or the ability to discover medical issues — is affected by the passage of time.

Filing a Claim with the Court

A legal action commences with the filing and serving of a statement of claim within the limitations period. In Ontario, these are set out by the Limitations Act.

• Basic limitation period: In general, plaintiffs must start their medical malpractice lawsuits within 2 years from the date they discovered or, with reasonable due diligence, should have discovered the negligence and resulting harm — the earlier of these two dates.

• Ultimate limitation period: This “drop dead” date is 15 years from the date of the negligent act or omission — at which point the plaintiff loses their right to a legal remedy.

• Exceptions: If the negligence could not have been discovered through reasonable due diligence (e.g., if the defendant fraudulently concealed their negligent actions/inactions), the 15-year “drop dead” limitation can be renewed. This, however, is rare.  

Talk to your lawyer if you have a case involving a minor with a disability, as this may affect your limitation period.

Pre-Trial Discovery

This is an evidence-gathering stage in which both parties may ask for relevant documents — to which they have a legal right — from each other. There could be depositions of witnesses and experts to provide on-the-record evidence to support legal arguments. Where the sides do not agree on issues like relevance or privilege, the judge may review documents and rule on which must be handed over.

Settlement Negotiations

Contrary to popular belief, most lawsuits settle. In many cases, it is the best result because it saves the parties the high cost of going to trial (legal fees, hiring experts, the time it takes to conduct the trial, etc.). Plus, it provides a measure of certainty as to the outcome. No matter how strong or weak a case appears to be, there is no guarantee as to how the court will rule and how much it will award plaintiffs.

Since the stakes are so high, you can expect the lawyers to play hardball, which is why you absolutely want an experienced medical malpractice professional in your corner. Parties may also look into alternative dispute resolutions, such as mediation or arbitration.

Trial

If all attempts to settle the matter fail and the plaintiff does not abandon the lawsuit, it will go to trial. This can be weeks — even months — of witness preparation, testimony, direct and cross-examinations, legal research, legal arguments, and yes, even continued attempts at settlement before the case is resolved. Then, there may be possible appeals and even a retrial if so ordered.

Understanding Timing and Potential Delays

There are so many variables when it comes to the timing of medical malpractice claims — patience is required. Even without a trial, the average medical practice case in Ontario could take months, potentially years, to resolve. Medical malpractice is not simply a one-on-one dispute. There could be delays resulting from the evidence-gathering stage, court schedules, and lawyer and expert availability. The lawsuit could be paused for settlement negotiations throughout the timeline — some civil suits even settle at or during trial.

How Allan Can Help

With medical malpractice, you should never go it alone. Having a lawyer not only reduces the stress of proceedings but also increases your chance of a successful outcome. Allan Rouben is an experienced negligence lawyer with a deep knowledge of Ontario’s laws and procedures. His expertise in investigation/evidence gathering, expert witness collaborations, and building a strong case makes him a skilled negotiating force with insurance companies and healthcare providers. What Allan wants is fairness for you, whether it’s settlement or trial. Contact Allan’s office today for a free consultation.