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What is considered medical malpractice?

1. Q: What is medical malpractice?

A. Medical malpractice refers to the injury, harm, or death of a patient due to the negligence of a health care professional. This personal injury could be the result of neglect, omission, or errors in professional judgment on the part of the health care professional. Medical malpractice often occurs when a medical professional misdiagnoses, fails to treat or improperly treats a patient. Prescribing incorrect medication which resulted in the development of a new medical condition or worsening of existing health problems may also be considered medical malpractice.

2. Q: How do I know if I have a medical malpractice case?

A: Usually, in order to build a medical malpractice case, we have to determine the standard medical procedure or level of professional care required for the situation. Then, we need to show how the care you received from the medical professional, whether a surgeon, therapist, or another medical specialist, was in breach of medical standards. Next, we need to outline how you were harmed by their medical misconduct.

3. Q: Can you file a medical malpractice lawsuit against someone other than a doctor?

A: Any licensed healthcare professional can have a medical malpractice claim filed against them. This includes family physicians, surgeons, and registered nurses, as well as medical specialists such as dentists, anesthesiologists, optometrists, pharmacists, physical therapists, and more. A medical malpractice claim can be filed if the healthcare provider made an error or was negligent in providing the proper care required under the circumstances. In some cases, the healthcare professional’s employer may be held liable for their negligent employees. In such cases, medical malpractice claims may also be brought against the partnerships, professional associations, and corporations that employed the negligent health care provider(s) at the time of the malpractice.

4. Q: Are nursing home injury/abuse cases considered medical malpractice?

A: If you or your loved one was harmed or injured while receiving medical treatment at a nursing home, you may qualify for a personal injury claim. In order for your case to be considered a medical malpractice, there has to have been a direct patient-doctor relationship which resulted in a personal injury to you due to the medical professional’s negligence or error. Physical injury caused by abuse while living at a long term care facility, or harm caused by an accident or fall may be enough to file a lawsuit, however, it will not be considered a medical malpractice suit.

5. Q. Does illness or harm caused by a pharmaceutical drug qualify as a personal injury case?

A. Taking prescription and non-prescription medication to alleviate the symptoms of an illness should bring you comfort, unfortunately, sometimes errors are made at the pharmacy, or the product you received was defective. Many pharmaceutical manufacturers fail to disclose important information about possible adverse reactions and known product defects to the public. Injured consumers can file a claim against the manufacturer of these faulty products in order to receive a settlement to cover medical expenses and loss of income as a result of their personal injury.

6. Q: Is a misdiagnosis considered malpractice?

A: In the case of a medical professional misdiagnosing you, there is a grey area when it comes to proving medical malpractice. First, we will need to determine whether enough details regarding your medical history were available at the time of your diagnosis and whether the medical professional did their due diligence to ensure they had all the necessary information to make a diagnosis. Also, we need to establish the appropriate course of action another trained professional in their field would have taken, and show how the level of care your received was below industry standards. Next, we need to prove that you were injured or harmed as a result of their error or negligence.

7. Q. If I think I have been a victim of medical malpractice, what should I do?

A. If you believe you are the victim of medical malpractice, begin documenting the details of your case immediately while it is still fresh in your memory. Keep a record of the names of medical professionals you have seen and consulted with, appointment dates including dates of surgeries, laboratory tests, CT scans, etc. Also, include the test results if you have them available. It is also advisable to document follow-up conversations with your medical team and anything else regarding the incident in question. Record every detail, even if you think it may be insignificant.

8. Q. Am I entitled to file a medical malpractice lawsuit if I have signed a consent form for treatment?

A. Even if you sign a consent form before you received medical treatment, if something goes wrong during the procedure you are still entitled to file a medical malpractice claim. You may have grounds to file a Lack of Informed Consent claim against the medical professional if you were not fully informed or fully understood the risks associated with the treatment before the procedure. With Informed Consent, the healthcare professional has an obligation to inform the patient of possible risks, desired outcome if treatment is successful, as well as alternative treatments. 


Please be advised that even though a consent form mentions a particular risk, and the patient was informed of such risk, the patient does not consent to malpractice. A physician has to take care to perform the procedure or treatment safely without causing injury or harm. If the physician makes an error which results in patient harm, that would be due to the physician’s negligence. Consent only applies to appropriate care. It does not apply to negligent care.

9. Q? What steps are involved in pursuing a medical malpractice claim?

A. If you feel that your medical procedure did not go the way it should have and you suspect that the healthcare professional that treated you made an error, you should consult with a personal injury lawyer to discuss your case. First, we need to review your medical records and consult with your healthcare team to determine whether they performed below professional medical standards. If we are able to determine that your situation qualifies as a medical malpractice claim, we may file a claim with the courts to proceed with a lawsuit. Many medical malpractice claims that are filed with the courts do not get settled and have to move to trial. 


Once we file your claim with the court there are a number of steps which need to be taken to develop and analyze the merits of your case. These steps include the “Discovery” stage where your lawyer and the at fault party exchange and analyze your supporting documentation and medical records. You may be required to undergo further medical tests to determine your current health and try to prove you were harmed or injured following the medical treatment in question. Once all the details are clear and it is proven that a medical claim can be made, we will prepare your case to go to trial. Even if your case settles outside of court, we still prepare your case as though it will be going to trial.

10. Q? What if the lawyer I consult decides not to take my case?

A. There are a number of reasons why a lawyer may choose not to take your case. One reason is your case does not have legal merit and the lawyer feels that a successful outcome may be unlikely. This determination may be made after your lawyer has received your supporting documentation, medical records, or after speaking with medical experts who conclude that your case has no grounds to pursue a legal claim. It is not uncommon for your lawyer and medical experts to disagree on the merits of a case. If you have been turned away from one lawyer, get a second opinion from another qualified lawyer.

Case Timeline

11. Q? Is there a time frame within which a claim must be made?

A. In Canada, the Regulated Health Professions Act stipulates that there is a limited timeframe for victims of medical malpractice to file a lawsuit. If you or a loved one is a victim of medical malpractice or negligence and you do not pursue legal action within the appropriate timeframe, you will no longer be eligible to file your claim. Some provinces allow for an extension of this filing time limit when exceptions exist. These exceptions are based on the facts of your case and the thorough analysis of the details of your case. Given the time sensitivity for filing a medical malpractice claim, we suggest contacting a qualified lawyer immediately to begin the filing process so your claim can be filed within the required timeframe.

12. Q. What will happen after the medical malpractice lawsuit is filed?

A. After a medical malpractice lawsuit is filed, your lawyer will enter into a “Discovery” phase where they will review the documents presented to support your case. During discovery, your lawyer will consult with medical experts who will help them to analyze the details of your case and offer their expert opinion regarding the merits of your medical malpractice personal injury case. Additional materials may be requested from your healthcare team including laboratory test results, X-Rays and CT scan images, and status of the medical professional’s licensing credentials, etc. Sometimes, lawyers need to consult with more than one expert to support your case, and finding knowledgeable medical experts for your situation may be difficult and require more time. Once the facts confirm that an error was made on the part of the healthcare professional that treated you, your lawyer will prepare your case and file a claim with the court.

13. Q? How long will a medical malpractice case take?

A. There is no easy answer to how long a medical malpractice lawsuit will take to resolve. There are a number of factors that need to be considered, such as having enough supporting documentation with adequate details to build a medical malpractice case. It depends on the amount of paperwork your lawyer needs to review, whether there is missing information which needs to be tracked down, how many witnesses and medical professionals need to be interviewed in relation to your claim, and a host of other factors which may cause a medical malpractice case to take longer than anticipated. 


There have been instances where medical malpractice cases have settled before trial and some which settled even prior to filing the lawsuit. If your case goes to trial it could take several years before you reach a resolution. If there is cause to appeal the decision, the appeal process will further extend the length of your case.

14. Q: Can a medical malpractice case be reopened after it has settled?

A: No. If your case has been settled in court you cannot pursue further legal action regarding the same medical malpractice event. Before agreeing to a settlement, seek the expert advice of your personal injury lawyer so you are fully aware of your losses before you agree to a settlement. Once you sign the release, you are no longer eligible to file a claim for compensation.

Finances

11. Q? Is there a time frame within which a claim must be made?

A. In Canada, the Regulated Health Professions Act stipulates that there is a limited timeframe for victims of medical malpractice to file a lawsuit. If you or a loved one is a victim of medical malpractice or negligence and you do not pursue legal action within the appropriate timeframe, you will no longer be eligible to file your claim. Some provinces allow for an extension of this filing time limit when exceptions exist. These exceptions are based on the facts of your case and the thorough analysis of the details of your case. Given the time sensitivity for filing a medical malpractice claim, we suggest contacting a qualified lawyer immediately to begin the filing process so your claim can be filed within the required timeframe.

16. Q: Is there a minimum or maximum amount that can be recovered in a medical malpractice lawsuit?

A: There is no minimum or maximum amount that a plaintiff must be awarded in a medical malpractice lawsuit, however, The Canadian Supreme Court has set a limit on the settlement amounts which will be awarded to medical malpractice claimants. Canadian health care professionals who work in private practice are required to maintain medical liability insurance which is usually provided by an independent professional organization. The insurance company defends medical malpractice lawsuits filed against the medical professionals their liability insurance covers.

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