Every profession requires the exercise of due diligence as they perform their duties for the public. As such, the law provides for remedies or reliefs to persons and their families who have been injured due to the negligence and malpractice of a professional or practitioner.
Medical negligence is a form of medical malpractice, although the two terms are commonly used interchangeably.
Medical negligence happens when healthcare providers or medical practitioners fail to practice due diligence or fail to use the reasonable care expected of them, resulting in injury or death.
It can also be committed through positive acts, even through the omission or inaction of a healthcare provider or medical practitioner.
In other words, what constitutes medical negligence is the absence of the standard of medical care by the provider or practitioner.
Actual cases that constitute what is medical negligence in Canada may be any of the following:
Omissions of standard of care:
- failure in obtaining or reviewing the patient’s medical history;
- failure in consulting with other doctors regarding the patient’s condition;
- failure to perform or order medical treatment;
- failure to obtain patient’s and/or their family’s informed consent; or
- poor or absent aftercare
- providing the wrong prescription resulting in misdiagnosis; or
- providing the wrong dosages in a patient’s prescription
Misdiagnosis, delayed diagnosis, or failure to diagnose:
- failure to conduct the appropriate diagnostic tests; or
- misdiagnosis resulting in surgical errors or prescription errors
- operating on a wrong organ or body part;
- damaging any nerve, tissue, or organ during surgery;
- anesthesia errors;
- unnecessary surgeries; or
- after-surgery complications
Defective medical devices:
negligent or wrongful use of a medical device
Birth injury malpractice:
- inadequate or wrongful prenatal care;
- incorrect use of a medical device during childbirth;
- unnecessary Caesarean section (C-section); or
- after-birth complications on the mother and/or her child
Watch this video for actual examples of what is medical negligence in Canada:
To find out if your case falls under medical malpractice or negligence, get in touch with a medical negligence lawyer in your area. If you’re in Ottawa, reach out to any of the best medical negligence lawyers in Ontario as ranked by Lexpert.
Read about some of the biggest and most important medical negligence cases in Canada and how these may affect your possible case of medical negligence.
When a patient sues their doctor or any healthcare provider, it is important to determine these points:
- what is medical negligence?
- has it been committed against the patient as defined by law?
- what are the necessary elements that the patient needs to prove?
In Canada, a plaintiff in a medical negligence lawsuit may be the patient or, in case of the patient’s death, the family/heirs or the estate of the patient.
The following elements determines what is medical negligence in Canada:
1. Duty of care:
- that the healthcare worker or practitioner owed the patient a certain duty of care; and
- that there exists a patient-healthcare practitioner relationship
2. Breach: that there was negligence or a breach of the standard of care
3. Causation: that the breach or negligence caused the injury or death of the plaintiff on a balance of probabilities
4. Damages: that the plaintiff suffered damages and that the loss is quantifiable
These elements may be proved by these means:
- oral (such as testimonies),
- documentary (e.g., medical records), or
- expert evidence, particularly from those in the field of expertise related to the case.
Statute of Limitations
When the patient has finally determined that their case falls under what is medical negligence in Canada, they must act swiftly and file the case immediately. Otherwise, they may be prevented from filing the case due to the statute of limitations.
The statute of limitations will bar a plaintiff from filing a case after a certain period has lapsed. In most provinces, plaintiffs in medical negligence cases are given 2 years to file a case.
The period will start:
- when plaintiff had knowledge that the medical negligence was the cause of their injury; or
- when plaintiff should have known of such circumstances.
The exception to this rule is birth injury cases, where the two-year period will only run when the child turns 18 years old.
While common law dictates what is medical negligence in Canada, it also governs how much can a patient sue their doctor.
General damages are awarded to the plaintiff for emotional or psychological distress. It is also called “pain and suffering damages” or “non-pecuniary damages”.
In cases decided by the Supreme Court in 1978, the Court limited the amount of general or non-pecuniary damages that may be awarded to the plaintiff. These cases – also called by some as the “trilogy cases” on damages – are:
- Andrews v. Grand & Toy Alberta Ltd.,  2 S.C.R. 229
- Arnold v. Teno,  2 S.C.R. 287
- Thornton v. School District No. 57 (Prince George) et al.,  2 S.C.R. 267
The same principle applies to medical negligence cases. A patient (the plaintiff) may recover damages against the healthcare provider or medical practitioner (the defendant) for medical negligence or malpractice. The Court limited it to C$100,000 in 1978, but due to inflation, the limit is now at around C$455,000.
The courts will assess the appropriate general or non-pecuniary damages to be awarded to the plaintiff.
Pecuniary damages, on the other hand, are the actual compensatory damages or “out-of-the-pocket expenses” that a plaintiff may recover from the defendant. These are also called “special damages”.
In a case of medical negligence, pecuniary damages may include:
- actual medical expenses
- future medical expenses
- loss of income
- any other damages that the patient incurred (or will incur)
Learn the legal steps to take when suing a doctor for negligence in Canada here.
Want to know more about what is medical negligence in Canada? Consult with any of the Lexpert best-ranked medical negligence lawyers today.