If you believe that you are a medical malpractice victim, contact a Halifax medical malpractice lawyer at once. You will need a lawyer’s help, because Canadian law, the insurance industry, and the healthcare industry make medical malpractice lawsuits difficult.
Nevertheless, medical malpractice is widespread in Canada. The Canadian Medical Association Journal reports that over 87,000 patients in Canada suffer an “adverse event” (meaning a medical mistake) in Canadian hospitals each year.
How is medical malpractice defined? What does it take to pursue a medical malpractice lawsuit, and what will it take for that lawsuit to prevail? If you’ll keep reading, you will find the answers to these questions, and you will learn more about the rights of medical malpractice victims.
How is Medical Malpractice Defined?
Mistakes during surgery – like amputating the wrong limb or removing the wrong organ – are the malpractice cases that make the news, but surgical errors are actually rare. However, prescription errors and medical misdiagnosis are not rare, and they pose a threat to us all.
Not every mistake that a healthcare provider makes is necessarily medical malpractice. However, when a medical professional or a healthcare facility fails to provide the generally-accepted, professional medical standard of care, that professional or facility is medically negligent.
What is the definition of medical malpractice? Medical malpractice happens when a patient sustains injury or harm because a medical professional or a healthcare facility is medically negligent and has not provided the professional, generally-accepted standard of medical care.
What Is Required of Healthcare Professionals?
The standard of care necessary is the type and level of care that the typical medical provider with comparable training and experience would offer in a similar situation. If a facility or a medical professional didn’t provide you with this standard, you may be a medical malpractice victim.
Healthcare professionals in Nova Scotia are legally and professionally obligated to offer a “reasonable” standard of care – professional, competent care and treatment comparable to what other healthcare providers offer in similar situations. To be exact, a medical professional should:
- Order tests that are standard and routine for a particular patient’s condition.
- Examine and assess the results of those tests promptly.
- Consult a specialist – or refer patients to a specialist – when it’s necessary.
When Does Medical Negligence Become Malpractice?
Medical negligence becomes malpractice when a medical professional’s negligence is a direct cause of a patient’s harm or injury. In the worst scenarios, a patient may be seriously injured or experience a rapid, alarming deterioration of his or her medical condition.
A medical malpractice claim must be scrutinized closely from both the medical and legal angles. If you and your lawyer can prove that medical malpractice has caused you injury or harm, you may be entitled to compensation, and the right lawyer can help you obtain that compensation.
When you and your lawyer decide to pursue a medical malpractice claim, the process begins with filing the lawsuit. However, a lawsuit does not necessarily mean there will be a medical malpractice trial.
How Are Most Medical Malpractice Claims Resolved?
Most medical malpractice cases are resolved outside of the courtroom. A Nova Scotia medical malpractice lawyer will negotiate privately on your behalf – from the beginning of the process – for an acceptable out-of-court settlement.
Filing a medical malpractice lawsuit begins by filing a Statement of Claim with the court. That statement identifies the purported injury victim as the “plaintiff” and the purportedly negligent medical provider as the “defendant.” Some malpractice claims will name multiple defendants.
After receiving a Statement of Claim, the defendant must file a written response (called a Statement of Defence) with the court. The two statements spell out the plaintiff’s allegations and the defendant’s responses and defence.
What Happens in the Discovery Process?
The next step is the “discovery” process, when each side discloses its evidence, testimony, and documents to the other side. Discovery allows each side to build its strongest case, and it also increases the likelihood of an out-of-court settlement.
At this stage, a plaintiff and defendant may agree to the mediation process, which provides a structured way for both sides to discuss and seek a resolution. Medical malpractice trials are rare, but if the two sides cannot settle the case privately or through mediation, the case may go to trial.
How Can a Plaintiff Prevail at a Medical Malpractice Trial?
If the case goes to trial, your lawyer must prove these “elements of the case” in order for your medical malpractice lawsuit to prevail:
- Your lawyer must prove the defendant failed to meet the legal and professional standard of care. The question of negligence largely depends on whether a patient would have received the same care from a different medical provider in a comparable situation.
- Your lawyer must prove that negligence directly caused the injury or harm that you sustained. If your condition would be the same if the medical negligence had not happened, and you’ve suffered no harm because of it, you will not be compensated.
- Finally, your lawyer must prove that you suffered both economic and non-economic damages and losses.
Economic losses include malpractice-related medical expenses and lost wages or other lost income including future earnings capacity (if you suffered a long-term or permanent disability). Non-economic damages include your unnecessary personal pain and suffering.
You May Need Expert Testimony
For you and your lawyer to prove that a healthcare professional or a medical facility failed to provide an acceptable standard of care, your lawyer may ask a medical expert to testify for you as an expert witness.
A medical expert can spell out what the accepted standard of medical care is for a patient in your condition, explain how your own treatment didn’t meet that standard, and provide the details about how you were harmed by medical malpractice.
When a judge or jury orders a medical malpractice defendant to pay compensation to a victim of malpractice, that’s not always the end of the case. Defendants have the right to appeal verdicts to the Nova Scotia Court of Appeal, and from there, to the Supreme Court of Canada.
Can Consumers Avoid Medical Malpractice?
Sadly, every study and survey indicates that medical malpractice is widespread in Canada. The first safety measure you can take is to ask your medical providers a number of questions and settle only for precise, comprehensive answers. Don’t let yourself be intimidated or disrespected.
In Nova Scotia, the deadline for filing a medical malpractice claim is two years from the date of the purported malpractice incident. There may be exceptions to the deadline in some cases where the medical malpractice was difficult to detect and was not discovered immediately.
Do not wait two years to consult a Halifax medical malpractice lawyer. If you have been the victim of medical malpractice – or if you’re not sure – you must discuss your situation with a medical malpractice lawyer at once.