5 Commonly Asked Questions About Medical Malpractice Lawsuits

  • Bruno Rice
  • October 15, 2017

A lawsuit involving any kind of malpractice is always going to cause anxiety on both sides. Generally, a professional has been entrusted to perform a task they have been trained to do and are specialized in, the plaintiff may often feel that due to their lack of expertise, they are not justified in claiming malpractice.

This tension is especially tricky to navigate when it comes to medical care. It is estimated that medical malpractice contributes to 40, 000 deaths in Canada every year, yet the vast majority of those cases never make it to the courthouse.

1. What constitutes malpractice?

Most medical malpractice claims can be thought of in relation to the failure to provide a reasonable standard of care. The courts maintain that, generally even in unusual circumstances, healthcare professionals have a duty to ensure they perform in accordance with the conduct of a prudent and diligent professional in a similar situation.

Although this may sound reasonable, it also means that there is no absolute standard set of rules which are applicable across the board. Unfortunately, this often dissuades potentials claimants from coming forward, because they are unable to point to a specific violation.

This standard of care stipulation also extends to the responsibility of the doctor to ensure that their patient remains fully informed throughout the duration of their treatment. Regardless of what the doctor may feel is the correct course of action, they are nevertheless required to facilitate a situation in which the patient has all the facts and can make a sensible and informed decision about any medication or proposed procedures.

2. What is a common form of medical malpractice?

Although we would like to imagine that things run smoothly all the time, that is simply not the case. Malpractice cases often come up in relation to incorrect or delayed diagnosis, surgical and anesthesia errors, or medical record errors.

3. Where is the line drawn?

If a problem does occur and the doctor or specialist is unable to prove that they fully informed the patient of their options, the patient must then prove that they would not have consented to the doctor’s proposition had they been in possession of all the facts. If this turns out to be the case, the physician is therefore guilty of malpractice and will be liable to pay compensatory damages to the patient. The physician is required to engage in full disclosure of any risks, unless, of course, doing so would prevent the advancement of urgent medical treatment.

It is important to keep in mind that in addition to proving that information was withheld or that negligence occurred, it must also be established that some injury or harm took place as a result. Following this, it is generally considered necessary to evaluate the natural progression of the illness and what the likely outcome would have been if non-negligent treatment has been given.

4. What does compensation cover?

If injury and damages can be established by a medical malpractice lawyer, the plaintiff is then entitled to ask for compensations regarding all associated consequences. These can include, pain and suffering, lost earnings, fees and travel expenses, care and associated and other general expenses.

5. Why do so many cases go undetected?

The fact is that in the event of an issue, most doctors are defended by the Canadian Medical Protective Association. This is a huge organization which has approximately $3 billion in assets, meaning it has more than it needs to engage in protracted legal battles. That reality is a reason why it is even more important that all cases of suspected malpractice are pursued though.

The fact that so few cases are filed means that the overall quality of the healthcare system diminishes. Holding healthcare professionals responsible across all levels of treatment will ensure that high medical standards continue to prevail.

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