Most, if not all, of us will be subject to the discretion and care of healthcare practitioners. Physicians perform countless surgeries, operations and procedures that require a high level of skill and knowledge. Despite the relatively low likelihood of medical malpractice and negligence within the healthcare system, mistakes do happen, including:

• Surgical or procedural errors
• Prescription drug errors
• Misdiagnosis or delayed diagnosis
• Lack of informed consent
• Failure to consider patient history
• Malfunction or misuse of medical equipment

When mistakes such as these occur, there are legal avenues to take in making a claim against your physician. It is important to note the courts have set a high standard for individuals to make a claim against their physician, but such a standard has and can be met. To put forward a successful claim of medical malpractice, the court looks for four main elements.

Duty of Care

The first step in a medical malpractice claim is to demonstrate that there was a patient-physician relationship. In other words, you must demonstrate that the doctor owed you a certain duty of care and concern for you and your wellbeing. It is settled law that physicians have a duty to conduct their practice in accordance with the conduct of a “prudent and diligent doctor in the same circumstances” (Ter Neuzen v Korn, [1995] SCR 674 at para 46). Family physicians and specialists are all expected to perform their duties with the skill and careful judgement that is reasonably expected by those in their profession.

Breaching the Duty of Care

Once it is established a physician owed a duty of care, the next step is establishing that the physician acted or failed to act in a way that constitutes a breach of that duty. For example, if the surgery that one is undergoing includes a large risk of possible life altering consequences, the physician is reasonably expected to disclose such information. This allows the patient to make an informed decision about whether to proceed with the surgery or not. In other cases, if the physician performed a surgery without due care, like leaving a medical instrument behind in the wound, such an action may result in a claim of medical malpractice.

To demonstrate that such actions constitute a breach of care, the courts require considerable evidence. Evidence in medical malpractice cases can be difficult to gather, as the highly technical nature means only medical experts will be able to confirm by way of testimony if such actions taken by the physician constitute a breach. Obtaining a qualified expert witness can be difficult due to the cost as well as the challenge of finding an available and willing witness. A lot of deference is typically given to the operating physician.

Causation

The third element, causation, may take different forms depending on the substance of the claim. For example, if the claim is based on uniformed consent, meaning that the physician didn’t adequately warn or disclose the possible outcomes from the surgery, then the plaintiff must show that the warning would have altered their behaviour. If it is found that had the physician warned the patient about the risks of a course of action and it is still likely the patient would have proceeded then there is no medical malpractice even if informed consent was not obtained ahead of time.

A general rule is to ask “but if my physician did not act in this negligent manner, would the result have still occurred?” There must be a direct connection between the result and the action or inaction of the physician. Physicians are not responsible for outcomes that were not a direct result of their actions. In many cases, unforeseen circumstances arise during a procedure and this will not be found to be the fault of the physician unless he or she acted negligently.

Sustained Damages

Lastly, the claimant must put forward evidence that such medical malpractice resulted in damages. Damages refer to the suffered loss or injury that occurred because of the beach or the wrongful conduct of another party. In cases of medical malpractice, damages can take the form of:

• Loss of enjoyment of life
• Physical and mental pain and suffering
• Loss of future earning capacity
• Past and future care costs

Making a Claim

Medical malpractice claims are difficult to pursue, not only due to the financial costs but also in acquiring a medical expert who is willing to testify on your behalf. That said, when medical malpractice does occur, pursuing a claim is a legal right. For more information, you can contact our office at 604.853.0774 and ask to speak to a member of our Personal Injury team.