My doctor misdiagnosed me or missed a condition in the ER. Can I sue?
Possibly. A missed or incorrect diagnosis does not automatically amount to medical negligence. The question is whether the doctor acted reasonably in the circumstances. To succeed in a medical malpractice claim, you must also prove that the failure to diagnose the condition caused you harm. In other words, you generally need to show that, had the condition been properly diagnosed and treated earlier, you would more likely than not have had a better outcome. A misdiagnosis or poor medical outcome, on its own, is not enough to establish a claim.
Is a bad surgical outcome or severe complication automatically malpractice?
No. A poor surgical outcome or serious complication does not automatically mean that medical negligence occurred. Surgery carries recognized risks and complications that can arise even when appropriate care is provided.
A medical malpractice claim may arise where the surgeon’s care fell below the accepted standard of care, for example because of an unreasonable surgical technique, a failure to recognize or appropriately respond to a complication, or inadequate post-operative management, and that negligence caused injury.
There may also be a separate issue of informed consent if a material risk of the procedure was not properly explained before surgery.
How much does it cost to sue a doctor or hospital in Ontario?
Medical malpractice cases can be expensive to pursue because they are complex and usually require opinions from one or more independent medical experts. Many medical malpractice lawyers in Ontario handle these cases under a contingency fee agreement, meaning that the lawyer’s fee is generally payable only if compensation is recovered.
Why do lawyers reject cases even when the doctor clearly made an error?
A medical malpractice case may be declined even where there are legitimate concerns about the care provided. It is not enough to establish that a doctor made an error or breached the standard of care. There must also be evidence that the negligence caused or contributed to a significant injury or worsened outcome.
Medical malpractice cases are complex and costly to pursue and often require evidence from several independent medical experts. If the injury was minor or temporary, or if it cannot be established that the outcome would likely have been different with appropriate care, the potential recovery may not justify the significant cost and resources required to pursue the case.
How long do I have to file a medical malpractice lawsuit in Ontario?
On Ontario, you generally have two years from the date you knew, or reasonably ought to have known, that you had a potential claim to start a medical malpractice lawsuit.
Determining when a medical malpractice claim was “discovered” can be complicated, particularly where an injury or the possible cause of an injury only becomes apparent later. There are also special limitation rules that may apply in certain circumstances, including claims involving children or persons who are incapable.
Because missing a limitation period can prevent you from pursuing a claim, it is important to seek legal advice as soon as possible if you believe you may have experienced medical negligence.
How much can you get for medical malpractice in Canada?
There is no fixed amount of compensation for a medical malpractice claim. The value of a claim depends on the nature and severity of the injury and its impact on the person’s life.
Compensation may include damages for pain and suffering, loss of income or earning capacity, future care and treatment needs, and other expenses caused by the injury. In cases involving serious and permanent injuries, future care costs and loss of income can form a significant part of the claim.
In Canada, damages for pain and suffering are subject to a judicially established maximum that is adjusted for inflation. However, this cap does not apply to economic losses such as loss of income and the reasonable cost of future care.
Should I file a complaint with the CPSO or hire a lawyer?
They serve different purposes, and in some circumstances you may choose to do both. The College of Physicians and Surgeons of Ontario (CPSO) regulates physicians and investigates concerns about their care or conduct. The CPSO may take regulatory or disciplinary action, but it cannot award you financial compensation. If you have suffered an injury because of medical negligence and are seeking compensation, you must pursue a civil medical malpractice claim. .
How do I legally obtain my hospital charts and medical records?
Under Ontario’s Personal Health Information Protection Act (PHIPA), you generally have the right to access and obtain copies of your own medical records. Health-care providers generally must respond to a formal access request within 30 days, although this period may be extended in certain circumstances. They may also charge a reasonable fee for providing copies of the records and must provide an estimate before charging the fee.