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Frequently Asked Questions – Medical Malpractice

As a victim of medical malpractice, you face many challenges. You may have profound pain and loss resulting from your injuries and a compromised sense of trust in the medical system. And you may have questions...

Frequently Asked Questions – Medical Malpractice

Medical Malpractice Brochure - Bogoroch & Associates LLP

What constitutes medical negligence?

Medical negligence, or medical malpractice, occurs when you suffer an injury due to the negligence of a healthcare provider. It can include misdiagnosis or delayed diagnosis; medical, surgical, treatment and anesthesia errors; medication prescription and administration errors; and breaches of informed consent. Hospitals, doctors, nurses, dentists, pharmacists, chiropractors and other healthcare providers can all be found liable for medical malpractice.

Medical malpractice lawsuits usually entitle an injured victim to sue for the following types, or “heads”, of damages:

  • Pain and suffering
  • Past lost income
  • Future loss of income/loss of earning capacity
  • Healthcare expenses/future care costs


How do you prove medical malpractice?

You must be able to provide two things to establish your healthcare provider was negligent in providing care to you: that they breached the standard of care, and that the breach caused the injury or damage in question. This is known in law as “causation”.

To prove a breach of the standard of care, you must demonstrate that the care and treatment provided fell below the generally accepted standards of a similarly qualified professional providing the same treatment. The standard of care is different for every medical specialty. For instance, a family doctor is held to a different standard of care than a general surgeon. It is important to know that the standard of care is not the best care available; the standard is that which a treatment provider cannot fall below.

Determining the standard of care applicable to a particular healthcare provider, and whether it was breached, requires expert evidence. We consult top medical experts to help us determine the likelihood that a breach occurred so that we can prove it in court.

Causation is often the most challenging hurdle to overcome because medical treatment is complex and can involve various steps and numerous healthcare providers. As well, since you initially consulted with a medical practitioner because of a health issue, it can be difficult to prove your injury is due to negligence in treatment and not from the original issue itself.

If you can show that a healthcare provider’s breach of the standard of care caused the injury or damage in question, your lawsuit will likely succeed.


How many years do you have to sue for medical malpractice?

As a general rule, you must file a lawsuit within two years of the date of the incident or you lose your right to obtain compensation. However, you may not always realize you suffered an injury or that a healthcare provider was negligent until a later date. In these cases, you may be allowed some flexibility with time limits. Bogoroch & Associates can advise you as to whether you have exceeded the time limit.


How hard is it to win a medical malpractice lawsuit?

Your case will take approximately four years to reach a conclusion. The steps in a medical malpractice lawsuit include the following:

  1. Collecting the relevant medical records and investigating the merits of the case
  2. Issuing the Statement of Claim
  3. Serving the Statement of Claim on the opposing side
  4. Receiving the Statement of Defence
  5. Completing the Discovery process, including Examinations for Discovery
  6. Conducting Mediation
  7. Proceeding to Trial, if required.

Many cases can be resolved without a Trial. But if your case does not settle at or after Mediation, additional steps are taken before Trial, such as attending a Pre-Trial conference. Though your lawsuit may take a long time to conclude, we will investigate and evaluate your case, as well as discuss the merits of your case with you at every stage of the proceeding.


What are the chances that my case will go to Trial?

Medical malpractice actions are particularly difficult and risky compared to other personal injury actions, and there is no guarantee that the opposing side will settle before going to Trial. We make every effort to settle your case while continuing to prepare for Trial. We always discuss with you the expert opinions, and your chances of success at Trial, to ensure you make an informed decision about whether to continue with your lawsuit.


How do I go about suing a hospital?

After our initial meeting, if retained, we will investigate liability by requesting medical reports from your healthcare providers and obtaining expert opinion. Assuming the expert opinion is favourable, we will we prepare a Statement of Claim, which will be filed with the court and served to the healthcare providers being sued. A Statement of Claim is a document that explains which parties are involved, the allegations of negligence, and the injuries you suffered as a result.


What happens after I file the Statement of Claim?

Once the Statement of Claim is issued and served, we obtain Statements of Defence and conduct the Examinations for Discovery. This is the first major step after issuing the Statement of Claim, and is similar to a Pre-Trial hearing. All parties are required to give evidence under oath about the matters in question. This process allows each side to learn about the evidence supporting each other’s cases. After the Examinations for Discovery are completed, we reassess your case to see whether it should go to Trial. We then discuss the estimated costs, and if appropriate, set a date for Trial.


What are examples of medical malpractice cases you handle?

Our team of more than 30 lawyers and staff have decades of experience in medical malpractice. We have covered many different types of cases. The most common malpractice cases that we deal with include:

  • Misdiagnosis
  • Delayed Diagnosis
  • Labour and Childbirth Injuries, including Brachial Plexus Injuries and Cerebral Palsy
  • Preventable Amputations
  • Delayed Treatment of Infections
  • Incorrect Treatment and Failure to Treat
  • Overtreatment
  • Surgical and Anesthesia Errors
  • Medical Errors
  • Prescription Drug Errors
  • Hospital and Nursing Home Falls
  • Nursing Home Negligence
  • Equipment Errors
  • Breach of Informed Consent