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Medical malpractice

Region: Ontario Answer Number: 479

Medical malpractice refers to negligence or misdeeds by a health care professional, such as doctors, dentists, chiropractors, optometrists, nurses, and so forth. In most cases, lawsuits against professionals for malpractice are complicated, difficult to prove and expensive. When you believe a doctor, nurse, hospital, or anyone in the health care field has recklessly or carelessly endangered your life, you are entering the world of “torts” and, usually, the law of negligence.


Standard for professionals

Keep in mind that the law does not require professionals to be perfect. If they made a mistake that could have been made by a reasonable practitioner in similar circumstances, then they will not be liable for the injury or loss. To be successful in a lawsuit against a professional, you must be able to prove that they failed to provide the standard of service or care that other reasonable practitioners would provide in similar circumstances. For example, if you were not informed by your doctor of all risks associated with a procedure, you may have grounds for a malpractice lawsuit. The standard of care that must be met will vary with the type of care or service you required and the type of health care professional who provided it.


Obligations of professionals

All professionals have obligations to their patients. For example, medical practitioners have an obligation, before administering any kind of medical treatment, to advise the patient fully of any associated risks, to discuss other options, and to fully explain the treatment. The obligations that each profession has is based on the law, and the guidelines of its governing body.

As a patient or client, you are also required to fulfill certain obligations under the law, such as providing full medical history to your doctor. If your failure to fulfill your obligations contributed to your injury or loss, the court may not hold the professional responsible, and will not compensate you.


Filing a complaint

Regardless of whether you decide to pursue a lawsuit against a professional, you also have the option of filing a formal complaint with the organization that governs that profession. For example, if your complaint is with a medical doctor, you may contact the College of Physicians and Surgeons. If your complaint is against a dentist, you may contact the Royal College of Dental Surgeons of Ontario.

If you wish to find out more about the professional standard for a specific profession, contact the organization that governs them. Be aware, however, that a finding of malpractice or negligence by a governing body may not result in any money being awarded to you. The governing body will, in most cases, be more concerned with disciplining the professional.


How to sue for medical malpractice

If you decide to sue your health care professional, there are several elements you must prove if a medical malpractice action is to succeed.

First, you must prove the defendant (e.g. doctor, nurse, or hospital) owed you a duty of care. This is usually established by showing you were a patient and relied on the health care professional.

Then, you must prove the duty was violated. In negligence cases, this is often done by examining the “reasonable” standard of care or customary practices expected in the medical profession. If the health care provider followed the normal procedures for your type of case, it may be very difficult to prove negligence. Nonetheless, there have been cases where health care professionals who followed proper procedures still have been found negligent.

Next, you must prove that you suffered an injury or loss. Further, you must show that the injury was due to the defendant’s conduct and that the damage or injury was foreseeable by the defendant. If the injury or loss was due to a pre-existing medical condition or your own behaviour after the procedure, it may not have been forseeable by the health care professional.  In such circumstances, you would not be successful.

Although medical malpractice cases are complex and take a long time to resolve, you are not required to prove all these elements beyond a reasonable doubt, as in a criminal trial. In civil courts, you only need to prove that your case is true on a “balance of probabilities.”

Your lawyer will also need to be careful about who is sued. For example, if the medical equipment or devices used were defective, the operating surgeon may not have been at fault. In such case, the manufacturer of that equipment, and possibly the hospital that approved its use, should be sued. Also, while hospitals are responsible for their own staff, they may not be responsible for outside physicians with hospital privileges.

If you are successful in suing a professional, the court may award you compensation for out of pocket expenses, lost income, legal fees, and for your pain and suffering, if any.

If you or someone you care about has been injured by a hospital, doctor, or other health care professional, contact Neinstein Personal Injury Lawyers . They offer a free consultation and do not charge up-front fees.



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