3 Things You Need to Prove Medical Malpractice in Ontario
This post was written by Andrea Girones:
Medical malpractice cases are notorious for being complex and hard-fought battles by medical professionals. Various factors come into play and you should make sure your lawyer has specific practical experience in these kind of cases.
To be successful you, with your lawyer, will have to prove 3 things:
1) The doctor fell below the standard of care expected of a reasonable doctor.
We do not hold doctors to a standard of perfection but we do require them to act expertly given their expertise. There are mistakes, and there are decisions which may turn out to be wrong in hindsight, but were within the range of reasonable steps a doctor should take in a particular situation.
Also, a birth injury case, a family doctor will be compared to other family doctors and not, for example, to an obstetrician, who is a medical doctor with specialized expertise and training. It is also part of the standard of care for a doctor to know when they are in over their heads and need to call in a specialist. Nurses and midwives are also held to the standards of nursing practice and midwifery.
If the medical professional takes steps that are incorrect, or fails to take steps that are needed in the face of a particular medical situation, they can be held to have failed to meet the standard of care.
2) The breach of the standard must have caused the resulting injury.
However, a mere breach of the standard of care is not sufficient on its own. This is a concept many clients find difficult to understand. The “medical cause” of injuries and complications are multi-variant and there is rarely a pure, straight line between cause and effect.
For example in a situation where there was a failure to order a C-section, and there is a seriously injured baby, the baby’s parents must call even more medical evidence to prove that a delayed delivery was a cause of the specific brain injury. A common defence to birth injury cases is to allege that the brain damage occurred before labour, or was a genetically caused, pre-existing, injury.
3) Damages- What damage was caused by the medical malpractice, and what might have happened regardless.
Once a malpractice victim has proven (1) and (2) the Court then turns its mind to what damages must be compensated for. In some cases damages are all or nothing. Either the damage was caused by the breach or it was not. This is typical in birth injury cases.
In other medical cases such as a “delayed diagnosis” case, assessing damages is much harder. In these cases the patient is already sick, and thus even with excellent treatment, may still suffer losses that are not preventable. An example of this is a cancer case. If a cancer diagnosis is missed for 3 months, 9 months or 2 years, what additional damage was done? We all assume that earlier treatment will improve outcome but there is no clear measuring stick to judge this by. Medical experts can argue endlessly on this issue.
If you have been a victim of medical malpractice please contact our office for a free consultation. If we take your case on there are no fees until we settle your case.
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