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During my many gratifying years as a family physician it was not unusual for patients to confide their dissatisfaction with care they had received elsewhere in the health care system.

A particularly unsatisfactory experience often causes patients to wonder if they have been the victim of medical negligence. What should a concerned patient know about dealing with such a concern?

A bad outcome to care is not necessarily the product of negligence. For example, it is wrong to start with a poor result and the apply hindsight to work backwards to find negligence; quality is not defined in retrospect.  Similarly, a carefully considered but wrong judgment by a physician is likely to be found to be an error but not negligence; providers are not held to a standard of perfection and, sadly, wrong decisions are sometimes made. In some cases responsibility for a bad outcome cannot be ascribed to a specific cause but rather, is said to due to a “misadventure”.  In yet other cases the patient voluntarily assumed the risk of a poor outcome when told of the risk during an informed consent discussion with the provider.

But all that said, there is no doubt that provider negligence – sometimes egregious – does occur.  The legal approach to negligence was defined many years ago in the case of Crits v. Sylvester (1956). The question that must be asked is whether the physician behaved in the circumstances as would a normal and prudent practitioner in the same area of medicine. But how does the court, with no expertise in medicine, make this judgment? The answer is that the court will rely on the opinions of medical experts as to whether the expected standard of care was met. The patient and the defence each engage experts who support their respective positions and the court carefully weighs their evidence.

If a patient succeeds in establishing a provider failed to meet the expected standard of care it must now be shown that the negligence actually caused the injury. If, for example, a physician failed to diagnose a condition in a timely manner, it must be established that this delayed diagnosis was the cause of the injurious outcome rather than simply the inevitable result of the disease itself. In all but the most obvious cases the argument over causation will again call for expert opinion.

Establishing negligent care caused an injury is the necessary prelude to considering what damages can reasonably be awarded. Clients are often surprised to learn that damages for “pain and suffering” in Canada are currently capped at under half a million dollars. There are, of course, additional categories of damages, each of which will require an independent expert to estimate. These include loss of past and future income and the costs of anticipated future care. Though the defence will recruit its own experts to produce far more modest estimates, an experienced legal team should be able to secure all the financial compensation to which a patient is entitled.

Negligence, causation, and damages are the three major hurdles for clients to clear in order to succeed in a medical negligence case. It can be a lengthy and emotional process but fortunately a good case is very likely to settle without the need to go to trial. Alternatively, if a case is assessed as being unsuited to litigation, there are other avenues a patient can follow. If the alleged negligence happened in a hospital most institutions have a patient ombudsperson who can help to guide a formal complaint to the proper hospital authorities. A complaint to the College of Physicians and Surgeons of Ontario is a simple and cost-free process that patients themselves can initiate and the College is bound by law to investigate. Providers take complaints against them at any level of the system very seriously and are likely to learn from the experience. It brings no damages for the patient, but it may help to promote better care.

The bottom line is this: if you have been injured by what you believe was medical negligence, discuss your case with a qualified lawyer. Be mindful that you are only allowed to bring a claim within two years of the date you knew, or should have known, about the potential claim. An initial consultation is generally at no cost to the client. The consultation should include a discussion of the limitation period, standard of care, causation, damages, and alternatives to litigation. Finally, if you are not satisfied by the encounter, seek a second opinion.

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This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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