The Canadian Health Care System and the Standard of Care in Ontario
It is important to understand that the law does not expect perfection from a medical practitioner. That said, if a doctor, nurse, or other healthcare provider makes an error or omission that is found to be unreasonable in all of the circumstances, they can be held responsible for any injury, loss or damages suffered as a result of their negligence.
To be successful in a malpractice case against a medical professional, you first need to prove that they failed to provide the care that a reasonably competent practitioner would have provided in similar circumstances. This is called the “standard of care”. The standard of care that has to be met can vary depending on the type of service or care provided, the speciality (if any) of the health care professional who provided it, and even the location of the treatment.
Professional Obligations and Medical Malpractice
Professional healthcare providers have obligations to their patients. For instance, they have an obligation to advise patients of risks associated with any medical treatment, fully explain the treatment, and to discuss what other options might be available to the patient. These obligations exist both in law and in the rules that govern each medical professional’s practice as applied by their college or other regulatory body.
Patients also have obligations while participating in medical care, such as providing a full and truthful medical history or following the direction of medical professionals (such as fasting prior to a procedure, if necessary).
Filing a Malpractice Lawsuit
Just as with other personal injury lawsuits, in order to be properly completed, medical malpractice claims can take a significant amount of time. Some of the reasons that these claims need to be handled by lawyers with specific expertise include the complexity and cost of proceeding in litigation that can be high risk. While most lawyers handling medical malpractice claims are prepared to bill their fees on these cases on a contingency basis, a significant amount of evidence in the form of medical and other records will typically need to be gathered and analyzed by expert witnesses to strengthen and support your claim.
Seeking Recoverable Damages
It is important to note that in Canada, general damages (the damages claimed for pain, suffering and loss of enjoyment of life of the injured person) are capped by law. There is, however, no cap on other damages, such as loss of past and future income or the costs of past and future care required as a result of the injuries suffered as the result of negligence. Therefore, if an injury has resulted in a loss of income or has forced you to pay substantial amounts for medical care, you may be entitled to compensation for these losses, as well as for the fact of your injury itself, through a medical malpractice lawsuit.
Seek Advice from an Expert Medical Lawyer
If you think you have been the victim of medical malpractice, our expert team of personal injury lawyers at Mackesy Smye can help. We have experience with a wide range of medical cases and work with a team of medical experts to help you seek the compensation you may be entitled to. Get in touch to set up your free consultation with one of our lawyers.