Toronto Medical Malpractice Lawyers - Ontario Law
TORONTO LAWYER HELPLINE: ☎ 855 804 7142
Doctors usually provide a high standard of excellence for their patients however there are occasions when things do go wrong. Our Toronto medical malpractice lawyers deal with claims on a contingency basis which means they don’t get paid unless they succeed. If you would like free telephone advice from a Toronto medical malpractice lawyer just call the helpline or complete the contact form or email our Toronto offices. Our Toronto medical malpractice lawyers make absolutely no charge for the initial telephone consultations and the only time you'll pay us for anything is if you receive a compensation settlement.
Medical Malpractice Law
Medical malpractice law is complex and difficult and for a successful claim a Toronto medical malpractice lawyer must show that it is more likely than not that their client has suffered injury which they would not otherwise have suffered but for the negligent treatment. Medical malpractice law dictates that a physician or other healthcare provider is negligent if they have fallen below the minimum standard of skill or care which the medical profession regards as reasonable. After negligence has been proved it is necessary to show that harm has been caused as a result of lack of care which may be difficult because the patient was already ill at the start of the treatment. It is usually necessary to show the natural progression of the underlying condition and what the outcome would have been if non-negligent treatment had been given thereby establishing what difference the negligent treatment has made.
Medical Malpractice Compensation
If the defendant in a clinical negligence case acted unlawfully, the plaintiff is ostensibly entitled to a medical malpractice settlement sufficient to place him in the position that he was in immediately prior to the defendant's negligent act. A medical malpractice settlement awarded in Canada courts may include both actual losses and punitive damages :
- Punitive Damages
In circumstances where the evidence establishes that negligence is the result of behavior that is reckless or is with a conscious disregard to the results of the wrongful acts then an award of punitive damages against the negligent physician may be appropriate.
- Actual Losses
If liability is established then compensation is payable for all actual losses that have been suffered by the injured party. A medical malpractice settlement is divided into two categories as follows:-
Special Damages can be accurately calculated and include past and future loss of earnings, medical expenses for the past and the future and other losses and expenses that have been reasonably incurred.
General Damages are difficult to calculate accurately and include physical and emotional pain and suffering, loss of the enjoyment of life and psychological injuries such as depression or post traumatic stress disorder.
The law requires that a person who causes harm to another "takes his victim as he finds him." This means that if the person who was injured was unusually susceptible to injury it does not relieve the defendant from liability to pay damages for any injury that he has caused. The right to recover a medical malpractice settlement is not limited by the fact that injury resulted from aggravation of a pre-existing condition.
Arbitration is often advocated as the best solution however most cases cannot be decided justly without all of the factual information being available. This can only be brought about by the full application of medical malpractice law in judicial discovery procedures and in arbitration there may not be full discovery of all documentation. Arbitration involves the plaintiff and the physician each appointing an arbitrator and these two arbitrators then select a third. This system is fraught with difficulty because there is the natural tendency for both sides to select biased arbitrators. Difficulty may then be encountered in selecting the third "impartial" arbitrator. In minor cases arbitration may be appropriate however in a substantial case it is preferable to rely on general medical malpractice law and take the matter to trial.
Contingency Fee Arrangement
Before any Toronto medical malpractice lawyers will take a case on a contingency fees basis they will want to be sure that current law supports the case and that the claim has a reasonable chance of success otherwise he will be wasting the time and effort that goes into pursuing unsuccessful legal proceedings. Toronto medical malpractice lawyers who work on a contingency fees basis only get paid if the claim is successful. If the case is unsuccessful the client does not pay the lawyer who receives nothing for his time and effort.
The key factor to success in a clinical negligence action is the accurate review and interpretation of the clinical records. There is just no point in starting legal proceedings if the evidence of neglect is not there and a scrupulous review of the records coupled with sensible application of the relevant medical malpractice law will often save all parties involved a lot of wasted time and money. The records may show that proposed legal action is futile or may deal a fatal blow to the doctor’s hopes of successfully defending a claim. All relevant medical records which include physician's records, treatment records and emergency room card together with scans and x-rays will have to be obtained.
After obtaining and reviewing the medical records an experienced Toronto personal injury lawyer will usually make a preliminary evaluation after consideration of the relevant medical malpractice law and after discussing the records with the client. The attorney will then send the clients statement of events, a chronology outlining all relevant dates and the medical records to an expert witness who is usually a specialist physician with experience both in the particular area of malpractice and in giving evidence in court. Once any further investigations have been made the specialist will report his opinion to the lawyer who will then make a decision based on relevant medical malpractice law as to whether he wishes to risk his time and money on a lawsuit on a contingency fees basis.
Once a decision to proceed has been made the lawyer makes contact with the third party and their indemnity insurers in an attempt to negotiate settlement on an agreed basis. Physicians insurers are notorious for making potential claimants apply medical malpractice law and prove their case ever step of the way and are usually unwilling to make any concessions or make any offers of payment on a ‘nuisance’ basis. Economic considerations rarely come into the issue and insurers will spend very substantial sums in defending claims of relatively minor value. If liability for the claim and its value cannot be agreed by consent then, assuming the time limit for making a claim has not expired, the lawyer will file legal proceedings in court and the matter will continue.
Toronto Medical Malpractice Lawyers - FAQ
What is medical malpractice?
- To succeed in a damages claim it is necessary for a Toronto medical malpractice lawyer to show that it is more likely than not that their client has suffered injury which they would not otherwise have suffered but for negligent treatment. Treatment is negligent if a healthcare provider has fallen below the minimum standard of skill or care that the medical profession regards as reasonable in that particular area of the country. It is also necessary to prove through expert testimony that the negligence of the health care provider was a cause of injury or death. The mere fact that the outcome of treatment was unsuccessful does not necessarily mean that the treatment was inappropriate. Medical malpractice information is often not forthcoming from a healthcare provider however they are obliged to disclose all records and documentation appurtenant to the matter which may go some way to prove negligence.
What does “informed consent” mean?
- A doctor is required to advise the patient of any procedure that is to be performed together with full information regarding all of the possible consequences and alternatives. If the consequences of not being properly informed are detrimental to the patient it may be possible to prove that the physician was negligent. There are certain emergency situations were the requirement to obtain the patients ‘informed consent’ are waived.
What is ‘limitation’?
- Throughout Canada there is legislation known as a ‘statute of limitations’ which is a law referable to the time limits within which legal action must be pursued. Medical malpractice information on limitation periods is essential as it can be can be crucial to the outcome of your claim. You should never rely on the written word which may be out of date. Advice should always be obtained as soon as possible from a Toronto medical malpractice lawyer. The basic time limits vary considerably and there are often exceptions to the general rules for those who are classified as infants or for those who are mentally disturbed. Other exceptions may apply to ensure that time does not start to run until the negligent act is actually discovered or ought to have been discovered with reasonable diligence. These time limits are necessary because memories fade, witnesses die or relocate and documentation or computer records can be lost or corrupted. These evidential difficulties can result in the outcome of a trial being unfair. Qualified, personal legal advice is essential to avoid becoming statute barred as a result of which the opportunity to claim compensation may be lost forever.
Can I obtain my medical records?
- It is a requirement that potential medical malpractice information is released to a claimant following a request for disclosure of medical records held by a potential defendant. Patients do have a legal right to obtain copies of their own medical records. The records may be held in more than one location and it is necessary to make a written request. There may be a copying charge applied before the records are released.
What does “standard of care” mean?
- The law determines the definition of negligence however the “standard of care” that a physician must achieve is defined by the actions of the medical community at large. The relevant question to define negligence is whether on the available information any reasonable physician would have performed the same acts.
What is “contributory negligence”?
- Contributory negligence occurs when an injured person has failed to exercise care for their own safety which contributed to the injury. Failing to take medical advice or failure to attend examinations or refusal to take recommended medication may in certain circumstances be said to contribute to the final outcome of the patient’s health. Damages payable can be substantially reduced if the patient is guilty of contributory negligence.
TORONTO LAWYER HELPLINE: ☎ 855 804 7142