Due to the expenses and trauma you’ve suffered, you or your family may wonder if you can sue for medical malpractice in Canada. While the answer is yes, you and your family should consider a lot of things to successfully plead your case before the court.
What can be considered as medical malpractice in Canada?
Medical malpractice is the substandard or negligent treatment or medical care of patients by their doctors or any other healthcare provider. This may result in further complications, hospitalization, external or internal injuries, or even death to the patient.
Although used interchangeably, medical negligence also constitutes as medical malpractice in Canada. Under the law, malpractice falls under the legal area of torts and damages, where negligence is the main reason that will give rise to a cause of action by the plaintiff (you or your family) against the defendant (the healthcare worker or medical practitioner).
There are many ways that medical malpractice or medical negligence may be committed by a healthcare provider or practitioner:
By inaction or omissions:
- failure in obtaining or reviewing your medical history
- failure in consulting with other doctors regarding your condition
- failure to perform or order medical treatment as needed
- failure to obtain your (or your family’s) informed consent
- poor or absent aftercare
Prescription errors:
- prescribing the wrong medication or wrong dosage
- failing to warn you of the medication’s possible side effects
- prescribing you with multiple medicines that are harmful when taken altogether
Misdiagnosis, delayed diagnosis, or failure to diagnose:
- failure to conduct the appropriate diagnostic tests
- misdiagnosis resulting in surgical errors or prescription errors
Surgical errors:
- operating on a wrong organ or body part
- damaging any nerve, tissue, or organ during surgery
- anesthesia errors
- unnecessary surgeries
- after-surgery complications
Defective medical devices:
- negligent or wrongful use of a medical device
Birth injury malpractice:
- inadequate or wrongful prenatal care
- incorrect use of a medical device during childbirth
- unnecessary Caesarean section (C-section)
- after-birth complications on the mother and/or her child
Read the story of a girl with #CerebralPalsy who recovered over $15.6 million for a #BotchedForceps and #VacuumDelivery by an #Obstetrician.#SRE fights for justice when #MedicalNegligence alters lives.
— SOMMERS ROTH & ELMALEH (@SREmedmal) July 27, 2023
Learn more: https://t.co/uI4zo71c8e pic.twitter.com/J5ZYHELgpN
To find out more about medical negligence and some real-life stories, read our article on the biggest medical negligence cases in Canadian history.
Can you sue for medical malpractice in Canada?
When you or your family have experienced any of the above-mentioned incidents, you can sue for medical malpractice by filing a civil suit for damages in court. There are legal and practical factors that you and your family should consider.
Settlement
Your lawyer may suggest settling your claim first with the doctor or the hospital concerned before you can sue for medical malpractice. Most medical malpractice cases in Canada are resolved out of court.
Using settlement as your option will depend on your circumstances. Consulting with a lawyer is important to know what risks are involved and what course of action to take.
Get in touch with a lawyer in your area. If you’re from Edmonton, for example, contact one of Lexpert’s best-ranked medical negligence lawyers in Alberta.
Elements/Evidence
Canada’s common law will govern if you can sue for medical malpractice in Canada. Common law states what you would have to prove in court to be successful in your claim:
- Duty of care: that the defendant owes you a certain degree of care, and that a patient-doctor relationship exists between you and the defendant
- Breach: that the defendant was negligent or that they breached a standard of care
- Causation: that the defendant’s breach or negligence caused your injury, or your loved one’s death, on a balance of probabilities
- Damages: that you have suffered damages that are quantifiable
How much can you sue for medical malpractice in Canada?
When it’s definite that you can sue for medical malpractice in Canada, the amount of damages or compensation that you would be asking from the defendant is important.
Under Canada’s common law, there are two types of damages that you can recover from the defendant:
General Damages
General damages are awarded by the court for the plaintiff’s non-monetary losses.
This means that you may be compensated for the emotional or psychological distress that you’ve experienced, or for your pain and suffering. That is why it is also called “pain and suffering damages” or “non-pecuniary damages”.
When you and your lawyer are deciding on the amount of general damages to request the court, your lawyer will mention that Canada’s common law has put a limit on the recoverable amount of general damages.
The limit is now around C$455,000 and will continue to grow due to inflation.
Pecuniary Damages
Pecuniary damages, also called special damages, are the actual expenses or compensation awarded to the plaintiff for their financial loss. This will include all of your out-of-pocket expenses from the injury you’ve suffered because of your doctor’s negligence or malpractice.
These may include the following:
- actual medical expenses (e.g., treatment and rehabilitation costs)
- future medical expenses (e.g., caregiving costs)
- lost income, loss of earning potential, and future income
- travel expenses (e.g., going to and from the hospital for treatment or rehabilitation)
- any other damages that the patient incurred (or will incur)
When you sue for medical malpractice in Canada, it’s important to keep all your documentary evidence (e.g., invoices or official receipts) as proof of these expenses.
Read more: What are the types of damages when suing for medical malpractice?
Do Canadian doctors carry malpractice insurance?
Although you can sue for medical malpractice in Canada, it worth noting that doctors are heavily protected by the Canadian Medical Protective Association (CMPA).
The CMPA acts as a medical liability insurance for doctors. It collects membership fees and insurance premiums from doctors. These are then used to protect doctors by funding lawyers and legal fees when lawsuits are filed against them.
This fund may also cover the compensation that the doctor will have to pay to their patients when they are sued for medical malpractice or negligence.
Read next: How much is hiring a lawyer when suing a hospital?
To find out if you can sue for medical negligence in Canada, ask any of the best Canadian lawyers for medical negligence as ranked by Lexpert.