When Health Care Fails: Suing for Medical Malpractice

Medical malpractice is a situation that no one ever wants to find themselves in, but the reality is that it happens.

Millions of dollars every year are put into the Canadian health system, expecting it to function properly and effectively. But that’s not always the case.

When you trust your doctor, you are putting your life in their hands. If they make a mistake, it’s up to you to get retribution and bring the issue to light. Read for more information about medical malpractice and what you can do if you’re the victim of this unfortunate circumstance.

Medical Malpractice Lawsuits in Canada

You’ve heard the horror stories. People going in for surgery and having an instrument left in their body, or being administered the wrong intravenous fluids leading to paralysis.

Every year about 70,000 people fall victim to medical malpractice that could have been prevented.

If a professional you trust hurts you, you’re going to be angry and vengeful, and rightfully so. But there are some things that you’ll need to know about before you begin a medical malpractice lawsuit.

Make sure you read this important information before you take your next steps.

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What is Medical Malpractice?

If you are injured or get a serious, life-threatening illness from something your doctor does incorrectly or with a lack of care, you are a victim of medical malpractice.

Medical malpractice can happen in many different ways and forms. All of these ways could have serious or fatal consequences and should not be taken lightly.

Refusal to provide care:

A doctor is allowed to refuse to treat you as a patient under certain circumstances only. For example, if you have a condition they are not experienced with, they’d be allowed to send you somewhere else.

However, a doctor is not allowed to refuse you service based on your gender, race, marital status, mental disability, ethnic origin, economic or social status, or any other discriminatory factor.

You can sue for malpractice if a doctor does refuse you service based on discriminatory grounds and not for your own benefit.

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Failure to obtain informed consent from the patient:

When a doctor is providing you any sort of treatment, they have to go over everything with you. This includes side effects, risks, and the nature of the procedure.

While they don’t have to tell you every small detail about the treatment, anything that would affect you in a remotely serious way needs to be discussed at length so that you understand every potential outcome.

If your doctor neglects to tell you about a risk for a treatment that’s important for you to know about, and you get an injury or illness because of it, you can sue for malpractice.

Man writting with pen - Lawsuits in Ontario involving medical malpractice.

Providing negligent care:

Negligence is the broadest and most common type of malpractice that is made by health care providers. This could be anything from errors during surgery, childbirth, or anesthesia processes to making a mistake with medication.

Negligent care occurs when the doctor provides sub-par medical treatment compared to a treatment by a similar care provider in a comparable situation. This means that the doctor did not provide you with certain treatments or procedures that you would have received with another doctor.

It could also mean that the health care provider made a mistake. These types of mistakes can be potentially fatal if they are gone unnoticed, which many do.

Misdiagnosis falls under this category, which is a very common type of medical malpractice lawsuit.

Sometimes, a misdiagnosis can mean the difference between life or death. When the doctor diagnoses something wrong, or doesn’t realize it until later on, it could mean that you’ve missed your opportunity for proper treatment.

Learn more about What is considered Medical Malpractice.

When You Can and Can’t Sue

In Canada, most health care providers are considered private practices that bill the government for the services we receive as patients through OHIP. Therefore, each office or facility has to have its own medical liability insurance.

However, it’s possible to sue.

Judge - Suing in Canada

There are certain situations when the injury or illness wouldn’t count as medical malpractice. It’s important to be aware of these situations to know what your odds are and to save your effort if it’s not going to be worth it.

To defend against a lawsuit, the doctor has to prove that their action was unintentional and that it happened while they were providing top quality treatment or service.

You also won’t be able to sue if the doctor has done all procedures and tests possible before being unable to come to a conclusion or diagnosis. If they prove they’ve done everything in their capability to do, they are safe from being sued.

This same concept goes for any judgement call the doctor makes that might cause you harm. If another doctor would have made the same judgement call, you won’t be able to sue them.

Not every mistake made by your doctor is grounds to sue them. But in some situations it’s what needs to be done. Go over your scenario. If you still think you have a good case, it’s time to speak to your personal injury lawyer.

Under Ontario law, you have to be able to prove beyond a doubt that your injury or illness came directly from the doctor’s error.

You also have a 2 year period. It goes from the time you leave the hospital or the doctor’s office to file your medical malpractice claim. If you wait any longer than that, you won’t be able to sue.

Limitations on Settlements and Awards

medical documents - Medical malpractice lawsuits in Canada.

In Canada, there is a limit on liability awards that prevents individual parties from suing medical practitioners for over a certain amount. The maximum amount you can sue for malpractice is $350,000.

In some exceptional cases, you could get more, but it would likely have to be something extreme.

The good news about this is that this is only what you can sue for pain and suffering. The limit doesn’t apply to other categories, such as loss of income. Those categories do not have the same limits and can reach anywhere on the financial spectrum, from the hundreds of thousands to the millions.

Tips for a Medical Malpractice Lawsuit

If you’ve decided to go through with it and get the justice that you deserve, there are some important tips and advice that you should know.

Be Mentally Prepared for a Long and Tedious Battle

Healthcare providers are legally obligated to provide you with safe, non-negligent care. So when negligence does happen, it’s rare but it could cost you your life.

Doctors are protected under the Canadian Medical Protective Association (CMPA), which fights diligently to protect the reputation of Canadian medical professionals. They are tough to go up against.

Suing a doctor for malpractice is very hard. But it’s not impossible. Just make sure you know what you’re in for and that it’s not going to be an easy road.

With the right personal injury lawyer, you can make sure that a knowledgeable expert is going to take care of you. They know the ins and outs of the legal world and will do everything they can to make sure you get a good settlement.

Doctor smiling - Medical malpractice suits in Ontario.

Have Medical Experts on Hand

To get the settlement you deserve, you’ll need to have a medical expert on your side. They know the ins and outs of medical law and practice. Since you’re going up against the CMPA, a team of experts whose job it is to protect their doctors, you’ll need expert help.

The best personal injury lawyers will have contacts and work closely with top medical experts in their area. These experts will be able to defend you in court or provide expert statements that could make or break your case.

Getting a third or fourth opinion on your situation is beneficial. This is especially beneficial when you can get a written report or record from that doctor. You can use that record in court when you make your claim.

Save Everything

To win a medical malpractice lawsuit you need all the evidence you can possibly collect. You will need to be able to prove beyond a doubt that you are a victim of malpractice and that the incident could have been avoided due to actions by the doctor.

Medical records are the most important piece of evidence that will win your case. This makes sense, considering it’s a medical situation.

But sometimes we throw out things we don’t realize are important. Every single piece of paper will count. Just keep it all until the case is done and hand it all over to your lawyer for examination.

Photographs can be just as important if there is physical injury or damage to take pictures of. Take as many of these as you can. You’ll want to keep them on hand because they will be useful as evidence in court.

stack of folders. Steps to take when dealing with a medical malpractice suit.

Conte & Associates Will Get You Justice

At Conte & Associates, we work with the top medical professionals and experts in Ontario to make sure the best people are on your side. We understand the pain you’re going through and want to do everything we can to help you.

We are experienced personal injury lawyers in the Oshawa and Whitby area. Our experienced lawyers will fight aggressively to win you the settlement you deserve.

Contact us today for a free consultation and to discuss your case.

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