Medical Negligence lawyers are generally understood to encompass the representation of plaintiff patients, their families or estates, and the defense of physicians, nurses, other health care professionals such as anaesthetists, hospitals and other authorities, in civil proceedings alleging personal or psychological injury, trauma or death resulting from a failure to provide care in conformity with standard practices or other reasonable standards.
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Generally, medical malpractice encompasses all forms of treatment which is considered not at par – or a substandard – from the generally accepted standards or minimum medical standards set by the law, which results in injury to patients.
Medical negligence is a form medical malpractice, although the two are mostly interchangeably used. Medical negligence occurs when healthcare providers fail to use reasonable care or exercise what a normal prudent care provider would do, in the performance of their professional duties, resulting in an injury or injuries to a patient. Such injury may be source of a cause of action against said healthcare providers. Although a standard of diligence is expected of all professionals as mandated by their respective code of conducts and by common law, medical professionals or healthcare providers are specifically expected of a high degree of care owing to the public trust involved, considering that a life of a patient can be at stake.
Thus, when there is deviation from this standard of care, medical negligence occurs. However, it is not only in the acts of medical professionals or healthcare providers that medical negligence may emanate from. Omissions may also be a source of medical negligence, especially in cases where a responsibility for medical intervention arises and the said medical professional or healthcare provider has not acted in a timely manner, or deliberately did not act at all.
Medical professionals or healthcare providers who may be held liable for medical negligence (or medical malpractice) are the following:
A medical negligence lawyer may be contacted to deal with issues from any of the above-named entities.
There are numerous examples of medical negligence.
When medical negligence occurs or when there has been injury to a patient, the plaintiff (who may be the injured person, or the guardian or parent for a dependent, whatever the case may be), with the assistance of a medical negligence lawyer, must establish such negligence or malpractice by convincing evidence according to its legal grounds.
In proceeding with a court action for medical negligence in Canada, the governing laws would be the common law and the medical regulations of the respective provinces and territories; except for Quebec, where its Civil Code provisions would apply. Case law and its jurisprudential doctrines may also apply, depending on the specific circumstances of the case. As such, a medical negligence lawyer may construe which common law, regulation, and case law may apply, considering the jurisdiction which the case falls under.
Another consideration for both the plaintiff and the medical negligence lawyer is the code of conduct, or the code of ethics, of the field of practice of the specific professional indicted as the defendant. For example, for members of the Canadian Medical Association, their Code of Ethics and Professionalism may be considered. Additionally, an erring medical professional may also be sanctioned administratively, depending on the institution that they may belong to.
Generally, the elements for an action for medical negligence to prosper are:
First, the plaintiff must establish the relationship between the patient and healthcare practitioner/medical professional. This relationship may arise from the contract between the two parties, which may either be orally agreed upon, or through a physical contract. Such relationship may also be established from the fiduciary obligations of the healthcare practitioner with the patient.
Secondly, a plaintiff must establish the specific act/s of the health practitioner which shows that they have acted negligently, or that they have not exercised the standard of care required of them. This includes presenting proof and evidence of the injury itself, or an account of the injured party of the act constituting negligence.
Lastly, the negligent act must have a substantial link to the injury, such that it was the cause of actual damages sustained by the plaintiff. This is because it may be controverted by the defendant on the ground of fraud, or that there has been no causal connection between the injury and the alleged negligent act. To prevent such from happening, strong evidence must be presented to draw the link of the injury to the complained negligent act.
As a general rule, the burden of proving such injury rests on the plaintiff. Hence, the admissible evidence considered to establish the three elements mentioned above may be acquired or established with the assistance of a medical negligence lawyer in order to prepare strong pieces of evidence to support the plaintiff’s allegations.
An important thing which must be included in the pleading of the plaintiff is the loss and damages as the result of the negligent act. This may include actual damages or expenses incurred by the plaintiff, loss of income due to being unable to work, and other damages such as moral damages. However, as to the “general damages”, which includes moral damages but excludes actual loss, case law dictates a maximum limit of $100,000, which has increased to $300,000 due to inflation.
The applicable damages and its computation may depend on the law applicable in the provincial and territorial jurisdictions. Therefore, there is a need to consult with a medical negligence lawyer before proceeding with the litigation to accurately compute the damages to be sought.
Before the filing of the case, or even during the judicial proceedings, any of the party may move for any of the alternative dispute resolution (ADR) methods to settle the claim for damages amicably or extrajudicially. Here, it would now depend on the parties to consent to this amicable settlement. If such is the case, a medical negligence lawyer may represent either party in the settlement process – for the plaintiff, to ensure that they will be sufficiently compensated; or if for the defendant, that the amicable settlement be successful to prevent a full-blown trial from happening to lessen their risk of losing, lessen the damages to be paid, and even prevent the cancellation of their medical license.
Commonly, an action to recover damages must be filed within two years from the discovery of the malpractice or negligence. Otherwise, the claim or the right to recover of the plaintiff will prescribe, which results in the extinguishment of any liability of the defendant.
Do you want to pursue a case against a medical practitioner as a plaintiff? Or are you a medical practitioner who is at the risk of being slapped with a malpractice or negligence case? Scroll down to see the best medical negligence lawyers in Canada to assist you in your case. They’re all Lexpert Ranked as some of the best in the industry.