People trust their medical practitioners to take care of them. Patients expect that they will come to no harm when they submit themselves to healthcare professionals, especially doctors. They never foresee the need to consult with a medical malpractice lawyer. However, medical errors leading to serious injury or death are, unfortunately, quite common in Canada.
Recent statistics for medical errors in Canada are strangely difficult to find. The latest available study on the subject was from 2004, and it revealed that of 100 hospital admissions, 7.5% suffered from an adverse event. Of those who suffered, 20.8% resulted in death and 36.9% was preventable. Even more unfortunate is that between 9,000 and 24,000 patients die annually because of adverse events.
While thousands suffer and die from adverse events, only about 900 medical malpractice lawsuits are filed every year, and more than half of medical malpractice lawsuits filed in 2013-2017 were either dismissed, abandoned, or discontinued. If you are a victim of medical malpractice, you need dedicated and experienced medical malpractice lawyers to help you through an uphill battle.
Overview of Canadian Health Care System
Canada does not have a unified health care system. The Canadian Health Act sets out the roles and responsibilities of the federal, provincial, and territorial governments in ensuring that Canadian citizens and permanent residents have reasonable access to medically-necessary health services through approved health insurance plans.
Generally, the federal government provides administrative support and funding to provinces and territories provided they meet the criteria and conditions set under the Canadian Health Act. Provinces and territories are primarily on their own when coming up with a health insurance plan to ensure they are eligible for cash and tax transfers in support of health, known as Canada Health Transfers.
British Columbia (BC), for instance, has the Health Insurance BC (HIBC) to administer publicly-funded healthcare to its residents through its Medical Services Plan. Other provinces and territories will have their programs.
The issue with this approach to public health care is that most healthcare professionals registered with the health care programs are private practitioners and independent contractors. The provincial government pays them on a fee-for-service schedule through the insurance company, but they are not government employees. In addition, health insurance does not cover all medical services, so patients that avail of these non-covered services directly pay their healthcare providers.
In effect, patients have a private contract with their healthcare providers. As such, when a doctor, dentist, or nurse makes a medical error, the victim may not hold the hospital or government liable for their injuries.
The victim, however, may sue the practitioner who is most probably a paying member of the Canadian Medical Protective Association (CMPA). The CMPA is a massive non-profit organization whose sole purpose is to provide a member-physician with legal assistance in a medical malpractice lawsuit and pay settlements when necessary. Nurses get similar protection from the Canadian Nurse Protective Society.
That is not to say that hospitals and medical facilities are immune from medical malpractice lawsuits. If you sustained an injury or harm due to the negligence, actions, or inactions of administrators, employees, and staff of a hospital or medical facility, you could sue them for damages as well.
What Constitutes Medical Malpractice?
Medical malpractice is when a patient suffers injury or harm because a medical professional or a healthcare facility has acted negligently or not provided the professional, generally-accepted standards of medical care. While no one expects healthcare professionals to be infallible, they should not be negligent in the performance of their duties.
Many medical malpractice lawsuits claim negligence on the part of the medical professional in the commission of medical errors and their failure to take steps when necessary to prevent harm. The following are the most common kinds of medical malpractice claims:
- Anaesthesia errors
- Birth injuries
- Defective medical devices
- Delayed diagnosis
- Failure to monitor
- Failure to order testing
- Failure to treat
- Foreign objects left inside patients
- Inadequate follow-up or aftercare
- Misreading laboratory results
- Premature discharge
- Prescription drug errors
- Surgical errors
Damages in a Medical Negligence Action
Medical malpractice in BC is not much different from other personal injury lawsuits when it comes to damages. However, a plaintiff has to prove the following to get an award of damages:
- The defendant owed a duty of care to the plaintiff, i.e., patient-doctor relationship;
- The plaintiff suffered harm or injury attributable to the defendant’s conduct, and such damage or injury was foreseeable and preventable by the defendant; and,
- The defendant’s conduct did not exhibit a degree of skill and care that might be reasonably expected of a prudent practitioner of similar standing and experience.
In a successful medical malpractice lawsuit, the judge may award one or more types of damages to the plaintiff.
Also known as economic damages, this is monetary compensation designed to cover financial losses suffered by the plaintiff, such as medical costs, lost wages, future lost earnings, and future costs of care for chronic pain or other debilitating conditions. The goal is to place the plaintiff in the same position he or she would have been in if the medical malpractice had not happened.
Non-pecuniary damages (general damages) compensates a plaintiff for intangible losses, including but not limited to, pain and suffering, loss of amenities, and loss of expectation of life. The monetary value of these losses and injuries depends on many factors. A medical malpractice lawyer in BC may hire an expert to give evidence on the probable consequences of these losses on the plaintiff’s life.
These are financial costs designed to punish the defendant and set an example to others and awarded only when the defendant’s conduct was of a reprehensible, vindictive, and malicious nature.
Common Causes of Action in Medical Negligence
Failure to obtain informed consent
To get informed consent, a physician has a duty to provide patients with the information they would reasonably want to know about the known risks of any proposed medical treatment. The assumption is that a reasonable person would not have consented to treatment if they had been informed of the known risks.
Failure to meet the required standard of care
As interpreted legally, the medical “standard of care” is the degree of skill and care that the average (typical) healthcare practitioner can expect for a particular specialty, given the medical knowledge available in the field. In other words, a healthcare practitioner that fails to perform their duties with the competency of a normal and prudent professional in the same field and similar experience may be liable in a medical malpractice lawsuit.
Breach of fiduciary duty
Fiduciary is from the Latin word “fiducia,” meaning trust. The physician-patient relationship is typically one of trust, which is the basis of the concept of fiduciary duty. A doctor must always act in good faith and with loyalty to the patient. A breach of fiduciary duty happens when the doctor puts his or her personal interests ahead of the patient’s or abuses the patient’s trust, such as committing sexual misconduct.
An experienced personal injury lawyer can assist you in achieving a sufficient settlement or judgment due to a medical malpractice event. Get in touch with Diamond and Diamond today.
How Can Medical Malpractice Lawyers Help You
A medical malpractice lawsuit in British Columbia is not something you want to do on a whim. A lot of work goes into proving negligence or civil responsibility of a healthcare practitioner or medical facility. It can also take years before you get a decision for your case. Consulting a medical malpractice lawyer can help you in several ways.
Take on the CMPA
The CMPA has a lot of resources for defending their member-physicians in a legal battle, which can be intimidating for many lawyers. An experienced medical malpractice lawyer in British Columbia knows what to expect and how to counteract the legal strategies of the CMPA.
Knowing the Possible Award for Your Claim
Damages awarded for successful lawsuits vary from case to case. A medical malpractice lawyer will have a good idea of how much compensation you might get upon careful evaluation of your case. Knowing your likely award (and chances of winning) will help you decide if it is something worth pursuing.
Negotiating the Best Settlement in Your Case
About 36% of medical malpractice cases end with a settlement, so you want someone at the table who knows the value of your claim. A medical malpractice lawyer is the most qualified person to negotiate the best possible settlement for you.
Expediting Your Claim Process
Filing a personal injury lawsuit is complex, especially for medical malpractice in BC. You can’t risk making a mistake. An experienced lawyer will know exactly what to do and how to speed up the process as much as possible.
Filing for a Medical Malpractice Lawsuit? Get in Touch With Diamond and Diamond
Medical malpractice in BC is more prevalent than you might think. The number of claims made is remarkably low given how many people die or sustain injuries from medical errors because winning a case is highly challenging. However, if you sustained life-changing injuries or lost a loved one due to medical negligence, you owe it to yourself to try.
You can count on the medical malpractice lawyers at Diamond and Diamond Lawyers to help you get compensation. We have handled hundreds of personal injury cases of all types in British Columbia and other areas in Canada. We have seen the devastation that the negligence of others has wrought in their lives. Each case is unique and so we commit significant resources to every client to make sure we provide the best possible representation and attention they deserve.
If you’re ready to talk, we are ready to listen. You can chat with us right now or call Diamond and Diamond Lawyers in Vancouver today for a free consultation 24/7 at 1-800-567-HURT (4878). You can also drop by at any one of our offices here.
FAQs on Medical Malpractice Lawyers
What are the most common medical malpractice claims?
How hard is it to prove medical malpractice in Canada?
CBC.ca reports that only 1.6% of medical malpractice lawsuits in Canada result in a finding for the plaintiff. On the bright side, 36.7% of claims get settled by the CMPA.
How do I get medical malpractice records?
You can typically request your medical records in preparation for a medical malpractice lawsuit from your health provider. In British Columbia, you can also request it from Health Insurance BC by printing out and filling up this form and mailing it to the address provided.