Published in the 2013 Legal Resource Guide from Canadian Lawyer magazine
Litigating a medical negligence or malpractice claim is complex and risky. These lawsuits are vigorously defended and supported by the Canadian Medical Protective Association (CMPA), so it's essential to contact an experienced lawyer who specializes in medical negligence to prosecute your claim.
Medical Negligence Claims Face Challenges
Contact a lawyer promptly to protect your rights
You may have a claim for medical negligence if you have suffered damages as a result of a negligent act or omission by a medical practitioner.
Litigating a medical negligence or malpractice claim is complex and risky. These lawsuits are vigorously defended and supported by the Canadian Medical Protective Association (CMPA), so it's essential to contact an experienced lawyer who specializes in medical negligence to prosecute your claim.
Medical negligence claims are often difficult to prove and there are several obstacles to winning one.
If you do not commence your lawsuit for medical negligence within the appropriate time limit, you risk losing your right to recover any damages and your action will be statute barred. In most cases your claim must be started within two years from the date on which a reasonable person ought to have discovered her or her claim. You should seek legal advice in a medical negligence case as soon as you are aware of an injury, loss or damage. Therefore, it is important to contact a lawyer promptly to avoid missing the limitation period and to ensure your rights are protected.
A medical practitioner is not liable merely because he or she makes an error in judgment. For a mistake to be negligent, it must be proven that the medical practitioner fell below the standard of care expected of a reasonably competent medical practitioner. The court will consider what reasonable, prudent medical practitioners of a similar specialty would have done in similar circumstances. If the accepted standard of practice was not met, the medical practitioner will be found negligent. To prove this, your lawyer will retain other medical practitioners to testify as to what a "reasonable medical practitioner" would have done in the same situation.
The biggest challenge a plaintiff in a medical negligence case usually faces is proving causation, which requires the assistance of expert witnesses. It must be proven that the injuries you suffered were caused by the negligence of the medical practitioner.
In light of the challenges involved in a medical negligence lawsuit, it is important to investigate the case before proceeding with a lawsuit. Your lawyer must obtain all of your hospital and medical records so that a full picture of the circumstances of your care and treatment can be determined. Your lawyer will decide what medical and other experts should review these records in order to provide opinions with respect to whether there has been a breach of the standard of care and whether but for the breach your damages would not have occurred. Your lawyer will then review the medical opinions with you and advise you if your case is worth pursuing.
Bogoroch & Associates offers free consultations to medical negligence victims. We attempt to analyze your legal rights and discuss generally the issues involved in your case. If we agree to take on your case, it will be done on a contingency fee basis – which means we only get paid if we successfully resolve your case - either by out of court settlement of by trial.