Understanding Medical Malpractice: A Plaintiff's Guide

Medical malpractice occurs when a healthcare professional fails to meet the accepted standard of care required of them, resulting in harm to a patient. Examples include:
 

• Misdiagnosis
• Delayed diagnosis
• Failure to refer to an appropriate specialist
• Surgical errors
• Failure to provide appropriate treatment
• Misuse of novel treatments
• Failure to obtain informed consent

 
Physicians are not the only healthcare providers that can be found liable for medical malpractice. Any healthcare professional, such as physiotherapists and chiropractors, can be found liable for malpractice.
 
This guide breaks down the key elements of a successful medical malpractice claim using a hypothetical case of plaintiff John Doe, who suffers harm due to a misdiagnosed stroke.
 
John Doe’s Case: A Misdiagnosed Stroke
 
John visits the emergency room (ER) with severe head pain. The ER physician, “Dr. X” diagnoses him with a migraine, prescribes pain medication, and sends him home. His condition worsens, and he suffers a stroke. By the time he returns to the hospital and receives the proper clot-busting drugs, it is too late to prevent serious complications. As a result, John loses the ability to walk unaided and struggles with daily self-care.
 
To be successful in his claim for medical malpractice against Dr. X, John must establish four key legal elements:
 
1. Duty of Care
 
A “duty of care” is a legal obligation imposed on a person or organization to act in a way that keeps others safe from harm.
 
The duty that a physician owes to their patients is well-established in law: they must provide reasonable care to the patient in accordance with current standards of practice. Clearly, Dr. X had a duty of care towards his patient, John Doe.
 
2. Breach of Standard of Care
 
Physicians are not expected to be perfect, but they must act as a reasonably competent professional in their field would. For a claim to be successful, it must be more likely than not (i.e., on a “balance of probabilities”) that the physician breached the applicable standard of care.
 
In order to determine what the standard of care would have been for Dr. X, John’s lawyer would want to obtain a report from an independent emergency room physician with similar experience to Dr. X. These reports are called “expert reports”, and the physicians who write them are called “expert witnesses”.
 
3. Causation
 
There must be a causal link between the physician’s breach of the standard of care and the patient’s injury. John must show that if he had received proper care, it is more likely than not that the impact of his stroke could have been minimized or prevented.
 
The main legal test used to establish causation is the “but for” test: But for Dr. X’s misdiagnosis, would John have suffered the same harm?
 
Expert testimony on this important question will be crucial. John’s lawyer would want to obtain another expert report to discuss whether an earlier administration of the stroke drug would have prevented or minimized the impact of the stroke. This legal test must also meet the “balance of probabilities” (more likely than not) standard.
 
4. Damages
 
The final element is establishing that the plaintiff suffered damages due to the negligence of the physician. Damages fall into several categories:

• Non-pecuniary (general) damages: commonly referred to as “pain and suffering” damages, this category of damages are awarded to compensate for the plaintiff’s pain (physical and emotional), distress, and loss of enjoyment of life. General damages for medical malpractice in Canada are presently capped at approximately $450,000.

 

• Pecuniary damages: this category of damages compensates the plaintiff for any financial losses that occurred, and might continue to occur, as a result of the injury, for example:

1. Loss of income: if John has lost the ability to work as a result of the malpractice, either entirely or partially, he may claim for that lost income. If he will remain incapacitated from working, he may claim for future lost income.
   
2. Medical expenses: this includes John’s actual out-of-pocket expenses resulting from the injury, like physiotherapy, medication, and homecare costs. Potential future medical costs are also included in this category.
3. Loss of valuable services: compensation for John’s inability to perform household tasks like he used to, e.g., cleaning or home repairs.  

• Exemplary damages: in rare cases, the court may award additional damages to punish egregious misconduct.

 
If John Doe is able to establish all of these four elements, he will be likely be successful in obtaining compensation for his injury.
 
Legal Representation
This guide is for informational purposes only and should not be construed as legal advice. Every case is unique, and legal outcomes depend on specific facts and circumstances. If you believe you have a medical malpractice claim, do not delay contacting a lawyer. There are time limits to file cases in court.
 
To arrange a free and confidential consultation with Budden Hiscock Lawyers, call us at 709-576-0077 or email Jennifer Helleur at [email protected].