We highly regard doctors because they are one of the professionals who can make a large impact in our lives. They help as at the time when our daily routines are affected by illnesses or diseases. But when they have caused us pain instead of comfort, do patients have the remedy against them?
Yes, suing a doctor for negligence in Canada can be done. It may seem challenging at first, but this is possible with the right counsel and after a thorough review of your case. However, there are certain legal procedures that you – as the plaintiff – must consider.
Causes for suing a doctor for negligence
When filing a case against a medical practitioner (doctors, nurses, pharmacists, etc.), it must be grounded on legal and medical causes.
Medical negligence happens when there’s a substandard level of care by medical practitioners, which results in damage to their patients. This can be shown through your doctor’s actions or their omissions.
Below are some of the common examples of grounds to sue a doctor for negligence:
- Misdiagnosis: failure to diagnose a patient in a timely manner; inaccurate diagnosis of a patient’s case.
- Prescription errors: wrong medication or wrong dosage was prescribed
- Surgical errors: operating on a wrong organ or post-surgery complications due to the doctor’s fault.
Limitation periods when you sue doctors for negligence
Suing a doctor for negligence in Canada is only possible when you file your case within the limitation period.
Your province will have its own statute regarding limitation periods. For example, in Ontario, limitation periods areoutlined in the Limitations Act.
Under this provincial law, you only have 2 years to file your case of medical negligence or malpractice. This period starts from the time that you were injured, or from the time that you discovered your injuries.
It only means that you must immediately consult your doctor and your lawyer at the onset of your symptoms, or right after you’ve felt pain or that something is wrong.
Watch this video to know more about this statute of limitations:
Consult a medical negligence lawyer in your area to know more about suing a doctor for negligence. Patients from Nova Scotia, for example, can reach out to the Lexpert-Ranked best medical negligence lawyers in Nova Scotia.
Under Canada’s common law, there are certain standards that you must follow to prove medical negligence:
- Duty of Care: that your doctor owed you a duty of care not to cause you harm or any other injury. You would also have to establish the existence of a doctor-patient relationship.
- Breach of Duty: that this duty of care was breached by your doctor because of their negligence or any other acts.
- Damages: that because of your doctor’s breach of duty of care, you’ve suffered physical injuries, which include actual medical costs, and psychological damage (e.g., pain and suffering).
- Causality: that there is a relationship between the breach of duty committed by your doctor (which is the cause) and your physical and/or psychological injuries (the consequence).
While these apply when suing a doctor for negligence, they also apply when filing a case against any other medical professional.
Exceptions – what is not medical negligence?
Not all complications, post-surgery conditions, or ineffective medical treatment are cases of medical negligence.
This is true when doctors are equally competent, when they did everything in their power and care to treat the patient and performed all medical procedures which they deem necessary.
This only means that your case must be consulted with a medical negligence lawyer to see if you have any legal case against your doctor.
Here are the steps that you can take in suing a doctor for negligence:
- Find a lawyer: contact a medical negligence lawyer right away to review your case and go over possible options.
- Determine the liable parties: this may be your physician, nurses, surgeon, or any other medical professional, along with the hospital.
- Preparation of evidence: your lawyer will inform you of the necessary documents (e.g., medical records showing the injury) or other evidence to prepare in relation to the above-mentioned elements or requisites of medical negligence.
- File the case in court: following the rules of court, your case may be filed in court
Who can sue a doctor for negligence?
Patients have the right to file this case. However, where the negligence caused death or incapacity to the patient, their family members or legal representatives may file the suit on their behalf.
Administrative complaints against doctors
You can also file an administrative complaint with a regulatory body against your doctor. This can be done while a case in court is filed.
The difference in these courses of action lies in their results:
- Filing a case in court: suing a doctor for negligence will result in an award for damages. This cannot be done by a regulatory body; only the court that has the power to award damages or compensation.
- Filing a complaint with a regulatory body: after due process, the regulatory body may impose any of the following penalties: reprimand, fines, suspension, or cancellation of your doctor’s licence.
Possible results when you sue a doctor for negligence
The most favorable decision from the court is the one which you would hope for. The judge may award you the damages that you’ve asked, which is imposed on your doctor and/or the hospital.
In other cases, the court may minimize the award of damages that you’re asking, whenever such deduction is legally sound. Of course, it can also increase such an award. All of these will depend on what happens in the courtroom.
However, there are times when both parties – you and your doctor – may reach an amicable agreement in waiver of your right to sue. This may or may not be a suitable result, and this must be thoroughly consulted with your medical negligence lawyer.