Proving Medical Malpractice
A doctor is not expected to be perfect, but each is held to a rigorous standard of care when it comes to treating their patients. If a doctor administers an ineffective treatment, and the patient is not harmed, then the doctor is not guilty of medical malpractice. A doctor needs some freedom to figure out the best way to treat their patients, as each situation is different. A doctor is a medical expert but no one is infallible, and all the law requires is for a standard of care to be met at all times.
While every case is different, victims looking to pursue a medical malpractice claim in Ontario need to prove the following:
- That a doctor-patient relationship existed
- That the doctor was negligent or acted with malicious intentions
- That the doctor’s breach of standard caused the injury or mental anguish
- That the injury led to damages that require compensation
In medical malpractice claims, victims are legally entitled to seek damages for lost wages, additional medical costs, and pain and suffering. With respect to pain and suffering, damages for medical malpractice is capped. Deciding whether to pursue a case can be determined by the legal expense versus what a victim can receive in compensation based on restrictions placed by the courts.
Common Forms of Medical Malpractice
While some are more common than others, medical malpractice can stem from doctors or healthcare staff acting in the following ways:
- Refusing to provide care based on factors not related to their area of practice – OMIT
- Failure to obtain consent
- Performing duties while not of sound mind
- Negligence in any aspect of diagnosis or treatment
- Flagrant misdiagnosis
- Injuries during childbirth
- Errors in prescribing medication
- Using unsanitary equipment or unlicensed procedures
- Errors during surgery or anesthesia
A misdiagnosis can result in a patient’s treatment being delayed. If a patient misses a significant amount of treatment rounds, the doctor could be held liable for medical malpractice, if it is decided that the delayed treatment posed a risk to the patient. These laws exist to protect patients, ensuring that all Ontarians can be treated in an ethical manner where doctors, nurses, specialists, practitioners and administrators adhere to the same ethical standard.
With respect to refusing treatment to a person, a medical professional cannot refuse to diagnose or treat a patient based on their gender, race, occupation, sexual orientation, ethnicity, political leaning or social standing. Every Ontarian is entitled to proper healthcare administered by trained professionals. In addition, a hospital or medical facility must provide oversight to their staff and be aware of any history of misconduct. They are a line of defense for patients and against medical malpractice injuries, shouldering much of the responsibility for any legal issues. Often, pursuing a claim against a doctor also results in legal responsibility being assigned to the facility or hospital that employs them.
In most cases of medical malpractice, the patient must prove that the medical professional acted in a manner not conducive with the role and responsibilities of the profession, and what a competent medical professional would have done in the same situation. This is where consulting with a personal injury lawyer makes the most sense, as medical malpractice can be difficult to prove.
Trauma or injuries during labour and delivery can have a detrimental impact on the child. If any of the following occurred, you could potentially pursue a medical malpractice claim:
- Issues stemming from the umbilical cord
- Forceps or vacuum delivery
- Maternal loss of blood
- Potter’s syndrome
- Onset of Cerebral Palsy
Even minor birth trauma or injuries caused by medical malpractice can result in emotional and financial distress. A newborn requiring additional care by medical professionals could be costly. If the baby or mother experience a permanent disability, the family could be forced to pay for home healthcare or medical devices. In either case, it’s best to consult with a personal injury lawyer to understand your options and how to best proceed.
The medical lawyers at Mackesy Smye have experience in successfully helping victims of medical malpractice. Our knowledge, attention-to-detail and experience in proving medical malpractice will help you build a strong case that could result in receiving the damages you deserve. Contact us now and take advantage of our no-obligation initial legal consultation – find out if you might have a medical malpractice case.