Nurses play a vital role in the recovery of a patient and are held to the same standard of practice as doctors and other medical professionals. But in cases of nursing malpractice, Canada’s legal system provides for legal remedies to patients, and enough defenses for these nurses.
What is considered medical malpractice in Canada?
Medical malpractice commonly refers to the acts, omissions, or inactions of medical practitioners that caused injuries, or even death, to their patients.
Its cause may be the medical practitioner’s:
- negligence or carelessness in taking care of their patients;
- deviation from medical standards or providing substandard treatment; or
- deliberate acts or intent to cause harm or injury to their patients.
Some of the usual medical practitioners that are charged with medical malpractice include:
- Physicians
- Surgeons
- Nurses
- Pharmacists
- Other hospital staff
Canada’s laws on medical malpractice
In Canada, medical malpractice or medical negligence is governed by different laws:
- Common law or case law on torts and damages
- Canada’s Criminal Code provisions on criminal negligence
- Provincial laws on medical negligence or malpractice
- Québec Civil Code provisions on negligence
Suits or court cases filed for medical negligence may either be criminal or civil in nature.
Civil cases revolve around the principle that for every wrong (or tort), there are resulting damages to compensate the victims for their loss.
Read more: Is suing a hospital for negligence in Canada possible?
What is nursing malpractice in Canada?
Nursing malpractice is medical malpractice or medical negligence that is committed by nurses in the exercise of their duties and responsibilities.
In a civil lawsuit for nursing malpractice, the defendant would be the nurse alleged to have committed malpractice or negligence. The plaintiff may be the patient or their family on behalf of the patient.
Most common malpractice for nurses
The five most common reasons for nursing malpractice allegations are:
- miscommunication
- assessment issues
- medication errors
- infection control issues
- equipment errors
The video below explains these in more detail, along with other factors in filing a case of nursing malpractice or negligence:
Can other medical professionals like doctors be sued for similar errors? Find out by reading our article on medical negligence.
Here are some examples of professional misconduct that are filed against nurses:
- Failure to periodically or adequately monitor a patient, which may occur when nurses take shifts in monitoring a certain patient.
- Failure to regularly update the patient’s chart or miss out on some important information in the chart.
- Wrongful administration of medicines to patients, who may suffer negative effects or allergic reactions.
- Wrongful administration of treatments and tests to patients, which may result in misdiagnosis or inaccurate results.
- Injuring a patient with medical equipment due to the negligent or careless use of such equipment, such as when nurses assist during surgical procedures or childbirth.
Elements of nursing malpractice
In malpractice or negligence cases of medical professionals, including nurses, Canada’s common law provides that the following must be proven by the plaintiff:
1. Duty of care
The plaintiff in a nursing malpractice case must prove that their nurse owes them a duty of care. This may be established by proving that the plaintiff relied on the expertise or knowledge of the nurse.
This reliance on a nurse’s medical expertise will result in the nurse’s legal obligation to exercise the expected standard of care for their patients.
2. Breach of standard of care
When this duty has been established, next to prove would be the nurse’s breach of this duty or the standard of care expected of them.
Common law requires nurses to exercise their duty and standard of care in a manner that is reasonably expected as that of a competent, prudent, and careful nurse.
In determining whether there was a breach, the courts will apply this standard to the specific circumstances of the case.
3. Damages or injuries
Plaintiffs must prove that they suffered actual damages due to the nurse’s breach of duty or standard of care. It must either be in the form of general damages (i.e., pain and suffering or non-monetary damages) or special damages (i.e., quantifiable or financial damages). It may also be both, if it can be proven in court.
It’s important to consult with a medical negligence lawyer to arrive at a reasonable amount of damages when filing a case for nursing malpractice.
4. Causality
Lastly, plaintiffs must be able to establish a connection – or causality – between the damages or losses they suffered and the nurse’s acts, inaction, or negligence.
In other words, it must be proven that it was the nurses’ acts or omissions that caused the plaintiff’s injuries and suffering.
Do nurses get sued in Canada?
Nurses can be sued in Canada, which can be in the form of a civil lawsuit or a criminal case.
Civil lawsuits can be based on Canada’s common law and provincial laws on medical negligence or malpractice. Criminal liability is provided by Canada’s Criminal Code.
Statute of Limitations
Plaintiffs who wish to file a civil case against their nurse must do so within their province’s or territory’s statute of limitations. For example, under Ontario’s Limitations Act, the basic limitation period for civil lawsuits is 2 years. However, there are some exceptions to this rule.
It’s important to consult with a medical negligence lawyer once the adverse effects due of malpractice or negligence start to show. This will enable plaintiffs to file their case in a timely manner.
Penalties
In a civil case for nursing malpractice, nurses who are found guilty may be penalized with damages, which may include legal costs. The nurses’ employer may also be found liable, such as their direct supervisors and the hospital they’re working for, when proven negligent.
If the case is a criminal one, imprisonment is also imposed on a guilty nurse, in addition to the damages and costs claimed by the plaintiff.
In addition, nurses may also have their licence suspended or revoked by the appropriate regulatory body. This administrative penalty may be in addition to the penalties imposed by the courts.
Learn more about nursing malpractice in Canada by reaching out to the best medical negligence lawyers in Canada as ranked by Lexpert.