The first formal step in a medical malpractice claim or lawsuit is to start the action in Court. This is done by filing a Statement of Claim or Notice of Action with the Court. However, medical malpractice lawyers thoroughly investigate the file before starting the action. This process is set out below.
THE INCIDENT GIVING RISE TO THE LAWSUIT
Patients injured as a result of potential medical malpractice are often not provided answers about what happened, what caused the injury or even who was involved. The same is true for family members of patients killed as a result of potential medical malpractice. Sometimes there can be a follow-up meeting to discuss the incident or injury, but often there is no meeting. Generally, patients and their families are left wondering about next steps.
Following an initial consultation, the patient and their family decide whether to retain the medical malpractice lawyer. This is when the work begins.
The medical malpractice lawyer will obtain authorization forms to facilitate and permit the disclosure of medical records under the Personal Health Information Protection Act, 2004, SO 2004, c 3, Sch A. Generally, relevant records include the records from the hospital or facility where the medical care or treatment in question was provided, records from the family physician and records from subsequent healthcare providers.
Once obtained, the records from the hospital or facility are thoroughly reviewed to determine what happened and to identify the individuals involved. The family physician’s records will also be reviewed to gain a sense of any pre-existing medical issues, as well as the records of any subsequent healthcare provider to assess the extent of the injuries, losses or damages.
THE THEORY OF LIABILITY
Following the detailed records review, a theory of liability is devised. This involves (1) identifying potential breaches of the standard of care, (2) determining causation and (3) assessing damages. These are the three components of medical malpractice lawsuits.
Starting with standard of care. Whether a physician, nurse or allied health professional, healthcare providers must provide care or treatment that meets the standard of care expected of them in the circumstances. Where their care or treatment falls below that standard, this is a breach of the standard of care and it is the first step to establishing liability.
Turning to causation. This is a determination about whether the breach of the standard of care caused the injury, loss or outcome. The question posed is: without the breach of the standard of care (or “but for” the breach of the standard of care) would the injury, loss or outcome have been avoided? If the answer is yes, causation is established. If the answer is no, causation is not established and there is no liability on the individuals involved despite the breach of the standard of care.
Finally, damages, which is the extent of the injury, loss or outcome suffered by the patient as a result of the breach of standard of care. Damages are assessed in dollar value.
Medical malpractice lawyers will often consult experts at this stage of the investigation in order to obtain a preliminary assessment of the issues of standard of care and causation. Early expert consultations help frame the case and identify issues in the medical care or treatment.
DRAFTING THE STATEMENT OF CLAIM
The legal drafting begins once the medical malpractice lawyer identifies the theory of liability. That theory is set out in a document called a Statement of Claim, which contains an overview of the lawsuit broken down into several parts.
The Statement of Claim identifies the Plaintiff(s) bringing the lawsuit and the Defendants who are named in the lawsuit. It will also indicate the amount of money sought by the Plaintiffs and set out the facts (often in the format of a chronology) leading up the injury or death.
The Statement of Claim will then set out the allegations of negligence. These are the acts or omissions by the Defendants which the Plaintiff alleges breached the standard of care. After this, the Statement of Claim will indicate the injuries and the categories of damages sought. Categories of damages include pain and suffering, loss of income and loss of competitive advance, cost of medical care and out of pocket expenses. Finally, the Statement of Claim will indicate the city or town where the lawsuit is to be pursued.
Sometimes a Notice of Action is filed with the Court before the Statement of Claim is issued. A Notice of Action is similar to a Statement of Claim, though it may be less detailed. The function of the Notice of Action is to extend the limitation to issue the Statement of Claim by 30 days. In Ontario, Limitations Act, 2002, SO 2002, c 24, Sch B, imposes a presumptive limitation of two years to start most actions. The Notice of Action can extend that limitation by 30 days to provide more time to finalize and issue the Statement of Claim.
ISSUING THE STATEMENT OF CLAIM
After finalizing the Statement of Claim, the medical malpractice lawyer has it issued by filing the final copy with the Court. Once the Statement of Claim is issued, the Court opens the Court File, writes or types the Court File Number onto the Statement of Claim, stamps it with the Court’s seal and dates it with the date it was issued. This is when the medical malpractice lawsuit formally starts.
The next step is to have the issued Statement of Claim served on the Defendants by providing them a hard copy in-person. Generally, the Defendants will then have Defence lawyers appointed on their behalf and the Defence lawyers will contact the Plaintiff’s lawyers to get the lawsuit underway. The Defendants will deliver a Statement of Defence setting out their defence to the lawsuit. The Plaintiff and Defendant will then exchange documentary productions and schedule Examinations for Discovery.
What follows is likely a Mediation, depending on the city where the Statement of Claim was issued, and thereafter a Pre-Trial Conference and finally Trial, if the matter cannot be settled out of Court.
Choosing an experienced medical malpractice lawyer is critical because a medical malpractice lawsuit is a long and difficult journey. If you or a loved one has been injured as a result of medical malpractice, contact the lawyers at Bogoroch & Associates LLP for a free consultation.
Bogoroch & Associates LLP is experienced in all aspects of personal injury and medical malpractice litigation. We have the confidence and skill to advance your accident or medical malpractice claim to settlement or trial while helping you navigate complex medical, legal, and insurance issues.
Our experience, commitment to excellence, and reputation have long been recognized. Our founding partner, Richard M. Bogoroch, has been recognized as a leading personal injury lawyer by The Canadian Legal Lexpert Directory and by The Best Lawyers in Canada. The Canadian Legal Lexpert Directory and The Best Lawyers in Canada are two highly regarded lawyer-rating publications.
If you or your loved one has been injured in an accident or believes that you are a victim of malpractice or negligence, reach out to a personal injury or medical malpractice lawyer to understand if you too have a claim. Please contact any of our personal injury lawyers at Bogoroch & Associates LLP for a free consultation.