As Canadians, we take tremendous pride in our health care system. Unfortunately, in an overburdened medical system, mistakes can result in severe injuries or even death. If you or a family member has suffered as a result of inadequate medical care, you may be entitled to compensation.
What is medical malpractice?
Medical errors occur every day and often the injuries and damages caused by those errors can significantly affect your life in a negative way. Medical malpractice is categorized as negligence on the part of your doctor or health care professional by act or omission, resulting in severe injuries or even death. Some examples of medical malpractice include:
Failure to diagnose or misdiagnosis
Failure to properly treat
Failure to treat promptly
Failure to advise of risk
Failure to order the proper tests
Failure to prioritize treatment in emergency room
What are some examples of medical malpractice?
Birth injuries may occur for a variety of reasons, but in instances in which they are caused due to medical negligence and careless mistakes made by your health care provider, you have the legal right to hold the responsible party accountable. Some birth injuries that may be caused by medical malpractice include:
- Brachial plexus (also known as Erb’s palsy or shoulder dystocia)
- Persistent Pulmonary Hypertension of the Newborn (PPHN)
- Bone fractures
- Facial paralysis
- Spinal cord injuries
- Fetal lacerations
- Caput succedaneum
- Delayed recognition of fetal distress
- Failure to assess
- Improper use of forceps
Cerebral Palsy can be caused by a number of complications during labour, some of which may have been caused by the doctor or the attending nurses. Your cerebral palsy injury claim can be substantiated by any of the following negligent acts by a health care provider:
- Failure to recognize or treat seizures post-delivery
- Improper or excessive use of vacuum extraction
- Improper use of delivery forceps
- Failure to identify prolapsed umbilical cord which results in oxygen deprivation
- Failure to extract the child from the birth canal in a timely manner, resulting in oxygen deprivation
- Improper response to the mother’s elevated blood pressure or toxemia
- Improper diagnoses or treatment of jaundice or meningitis
- Failure to perform C-section in a timely matter despite large birth weight indicators
- Failure to respond adequately to fetal heart rate changes
A doctor’s negligence can have grave consequences, potentially resulting in unnecessary injury and prolonged suffering. This can mean financial losses, emotional pain and suffering, and even death. Although every case is different, your medical malpractice lawyer will generally use the following framework for the basis of your doctor’s negligence claim:
- Establish criteria for a reasonable standard of care. Before we can determine whether your doctor’s actions failed to meet reasonable medical standards, we must first define these criteria. Your medical malpractice lawyer will retain specialists from the health care sector to identify reasonable standards of care, then ascertain whether these were met.
- Identify a breach of reasonable standards of care. Once we have established criteria for reasonable standards of medical care and competency, we must prove the doctor’s negligence.
- Establish causation for your personal injury. To win your medical malpractice case, you must link your injury to the doctor’s negligence. In some cases, a proven breach of reasonable standards of care may be unrelated to the injury. For example, failure to sterilize surgical tools is a clear breach of reasonable standards, but cannot be considered the cause for the wrong arm being operated on. On the other hand, the doctor’s negligence here could be linked to the development of a life-threatening infection during the patient’s recovery.
- Assess the damages of your medical malpractice injury. Once you have submitted evidence that establishes the doctor’s negligence caused your injury, you will need to assess its financial consequences. Accurate assessments depend on specialized knowledge obtained through collaboration between insurers, medical experts and members of your legal team.
Pharmacy malpractice or pharmacy negligence refers to the incorrect filling of a prescription and can also include:
- Processing order liabilities
- Unauthorized prescription refills
- Improper labelling or instruction
- Wrong drug, dosage or potency
- Failure to warn patient of hazardous side effects, including addiction, consequences of excessive dosages and other risks that may arise from using the drug
- Failure to dispense necessary medication
Typically, the success of a pharmacy malpractice case will hinge on two factors:
- The personal injury lawyer’s ability to establish the pharmacist’s duty of care to the persons receiving his or her prescription – this may require proof of vicarious liability
- The personal injury lawyer’s ability to prove that pharmacy malpractice or pharmacy negligence has occurred – this will require documentary and oral evidence, as well as testimony from medical experts detailing the harm resulting from negligence
Once these criteria have been satisfied, liability will be imposed on the pharmacist, who will be required to compensate for pain and suffering, medical care, and other financial losses and expenses resulting from their negligence. Families who lose a loved one can also file a pharmacy malpractice against the pharmacist who breached their duty of care.
Surgical malpractice refers to any instance where physical, emotional or financial harm was inflicted as a direct result of a doctor’s negligence before, during or after an operation. Surgical injury and error varies widely in type and severity. For example, a doctor could fail to remove surgical materials during the operation, use improper surgical techniques, and as a result cause damage to nearby organs or membranes. In most cases, your claim will proceed under the theory of surgical negligence. Related issues include: negligent prescription of medications or medical devices and failure to obtain a patient’s “informed consent.”
Under the theory of negligence, the patient must prove:
- The surgeon’s duty of care to the patient, typically through illustration of the doctor/patient relationship
- The applicable standard of care, along with the health care professional’s deviation from this standard
- The extent of the patient’s injury, often through third-party assessments made by medical professionals
- The causal connection between the doctor’s deviation from the standard of care and the patient’s injury
What happens if I suffer a medical malpractice?
Not all accidents and unfortunate outcomes are the result of medical malpractice. However, if you suspect that a health care professional involved in your care has made a mistake, it is important that you speak with a lawyer as soon as possible.
In Ontario, you can seek compensation for medical malpractice and sue for damages. The law also allows the family members of a person who has died to sue for damages. The area of medical malpractice is exceptionally complicated, and hospitals and health care professionals have a reputation of defending any lawsuits with well-funded and highly skilled lawyers. As a result, it’s important that you contact a medical malpractice lawyer with the academic and experiential knowledge needed to navigate this complex process.
Many law firms claim they can help you following medical malpractice. The Oatley Vigmond approach is what sets us apart. Many of our lawyers are certified as Litigation Specialists by the Law Society of Upper Canada; the only body that governs Ontario’s lawyers ensuring that the people of Ontario are served by lawyers who meet high standards of learning, competence and professional conduct. Our experienced personal injury lawyers help pursue compensation and address the long-term needs of the injured person and his or her family.
In Canada, most doctors are covered by a specialized medical defence organization called the Canadian Medical Protective Association. The CMPA defends doctors who are alleged to have been negligent in caring for a patient. Lawyers who specialize in medical malpractice are familiar with the CMPA and the evidence required in order to be successful in developing a claim.