Medical Malpractice

Medical professionals are highly trained and skilled practitioners who nonetheless commit negligence when treating or caring for patients. Hospitals and other medical facilities also are guilty of injuring patients through negligent practices or failures of oversight. If you or a loved one was injured and suffered damages due to the negligence of a medical provider, you can bring a tort claim against them, though you will be met by defense lawyers with considerable resources who will aggressively defend the doctors, nurses, chiropractors, and facilities who are accused of injuring you or a loved one.

What is Medical Malpractice?

A physician, nurse or any other medical provider has an obligation to exercise care when treating or caring for a patient and must adhere to a standard of care. In Ontario, this means that the provider must meet “that degree of care and skill which could be reasonably expected of a normal, prudent practitioner of the same experience and standing.” Similarly, a hospital is held to a standard of care that usually involves preventing defects in its system and policies when caring for a patient. However, hospitals are not held vicariously liable for the negligence of physicians in its facility as they are considered independent contractors and not hospital employees under Canadian law, unlike interns and residents.

A medical malpractice claim is one of negligence and the principles of this cause of action apply. The elements of a medical negligence or malpractice claim are:

  1. Duty of care—the physician must have treated the patient. If so, the provider owes a duty of care to the patient to provide the degree of care and skill that the average medical provider practicing the same specialty would provide
  2. Breach of the duty of care–the doctor’s conduct fell below or breached the standard of care by not properly diagnosing the patient’s condition, or by otherwise not providing the degree of care expected.
  3. Causation–the doctor’s error or failure to abide by the standard of care must be the cause of the patient’s injuries and damages or, if not for the doctor’s error or breach of the standard of care, the patient would not have been injured. This can be demonstrated by a showing that the patient’s condition worsened because of the error.
  4. Damages–the patient suffered damages. This includes medical expenses, lost earnings, and pain and suffering.

Examples of Medical Malpractice

As  noted, physicians must adhere to a standard of care when treating or caring for patients. This includes taking a thorough medical history, performing a proper examination and ordering applicable lab tests, interpreting and reporting the results, referring and consulting with other physicians, recognizing and acting upon symptoms so as to arrive at the correct diagnosis, disclosing to the patient the risks of a procedure, obtaining informed consent from the patient, prescribing proper medications, doing proper follow-up, and providing proper therapy and treatment options.

The following are other common examples of medical malpractice:

Failure to diagnose

This can include a misdiagnosis as well. If a provider does not correctly diagnose esophageal cancer and instead labels the patient’s complaints as a bad cough and where the correct diagnosis at the time would have vastly improved the patient’s chances for recovery or a longer life, this could be medical negligence. To sustain a claim, the error must have been one that a similar physician exercising reasonable care and skill would not have made. Also, the error must have led to delayed care, improper care, or no care at all which led to a worsening of the patient’s condition.

Delayed diagnosis

Similar to a failure to diagnose, a delayed diagnosis means that the condition becomes worse to where surgery or extreme measures must be taken. If a prudent practitioner of the same experience and standing would have diagnosed the patient’s condition under the same set of circumstances, then the subject physician’s omission fell below the accepted standard of care. The physician’s failure to consult with other physicians or to refer the patient to a specialist who could have correctly diagnosed the patient or earlier may also be considered malpractice in certain circumstances.

Medication Errors

Errors in the type or dosage of medication are not uncommon. If the dosage was incorrect, severe complications can develop. If delayed, it can lead to death. Medication errors occur as a result of:

  • Poorly written or oral communication
  • Understaffing
  • Failure to take proper precautions or follow established protocol
  • Inexperienced or ill-trained staff
  • System errors

Negligence may be found if the physician or provider:

  • Prescribed the incorrect medication
  • Administered the wrong dosage
  • Delivered an unintended medication
  • Failed to take the patient’s history and allergies
  • Failed to inform the patient of the risks associated with the medication
  • Failed to account for an adverse reaction to mixed medications

Medication error claims also include pharmacists who may have delivered medication to the wrong patient or improperly prescribed it.

Anesthesia Errors

Anesthesia is administered during various procedures so that the patient does not feel pain. The medical care provided by the anesthesiologist must meet the accepted standard of care. Errors in anesthesia may include the following:

  • Excessive anesthesia
  • Too little anesthesia so that the patient may experience pain while not being able to communicate to the doctor or nurses
  • A delay in delivering anesthesia
  • Delivering the wrong type of anesthesia
  • Failing to monitor and recognize severe reactions to anesthesia or to interactions with other medications
  • Failing to determine if the patient is allergic to the anesthesia and administering it either accidentally or intentionally
  • Failing to take into consideration the patient’s positioning during anesthesia administration that affects the patient’s blood pressure or blood supply to the brain that can result in death or brain damage
  • Defective equipment

Complications that can arise due to inadequate delivery or other errors can be catastrophic or fatal. There can be brain damage if there is inadequate oxygen to the brain, a condition called hypoxia. An error can also lead to paralysis, stroke, seizures, malignant hyperthermia, and death.

Birth Injuries

One of the more devastating consequences of medical malpractice is a child injured before, during or just after birth because of a medical error or omission. Common types of birth injuries are:

  • Fractures
  • Hypoxia leading to brain damage (umbilical cord compression or strangulation)
  • Cerebral palsy
  • Skull injuries
  • Brachial plexus or Erb’s palsy (nerve damage that can result in arm paralysis)
  • Facial paralysis
  • Cephalohematoma
  • Shoulder dystocia

Some of these injuries are the result of a failure to monitor the fetus which may be displaying signs of distress and not receiving enough oxygen. Improper use of forceps or vacuum extractors can cause serious injuries. Along with the attending physician or obstetrician, other responsible parties can include the delivery room staff, hospital staff, obstetric nurses, and doctor who negligently provided pre-natal care or failed to anticipate potential complications that a doctor with similar skills and experience would have noted in the exercise of reasonable care.

The symptoms of a birth injury may be apparent at birth or while the child is developing. You may find that the child is not meeting certain milestones such as crawling, standing or walking. The child may also demonstrate a lack of muscle coordination or have learning challenges.

Surgical Equipment Left in Body Cavity

Surveys from the U.S. Department of Health and Human Services show that surgical instruments such as sponges or tools are left in patient bodies in 12% of surgeries or about 6000 cases per year. In Canada, a report from the Organization for Economic Cooperation and Development (OECD) found the rate to be 8.6 of every 10,000 hospital discharges.

A patient may begin experiencing discomfort shortly after surgery that if persistent will show that the tool is the culprit after a diagnostic test. Other patients may go for months or even years before the cause of the extreme pain or complications is uncovered.

Hundreds of instruments and tools can be used during a surgery but all must be accounted for. A sponge or tool left in a body cavity can lead to infections, internal hemorrhaging, and death.

Failure to Obtain Consent

Before you are provided certain care such as surgery or other treatment, your provider is obligated to review with you the side effects, potential complications, and risks such as stroke, heart attack, emotional or cognitive changes, and others. Anything that could conceivably occur needs to be reviewed. If your doctor failed to inform you of a certain risk or complication that does occur and you suffer a severe reaction or condition that causes serious injury, you may have a claim for malpractice.

Issues in Pursuing a Medical Malpractice Claim

Medical malpractice claim are notoriously difficult to handle, which is why having an experienced and highly skilled Toronto medical malpractice lawyer from Affinity Law is essential. Canadian physicians are protected by the Canadian Protective Medical Association (CPMA), which will vigorously defend the practitioner in a medical negligence claim. Of all medical negligence claims, 55.2% are dismissed or discontinued and 36.7% are settled. Of those claims that do go to trial, around 6.5% are found in favor of the doctor and 1.6% in favor of the patient. However, many of the claims that are dismissed or abandoned are because the legal practitioner failed to adequately investigate the claim, lacked the resources to continue to prosecute or litigate, or simply lacked the skills to pursue them.

If you or a loved one has a potential malpractice claim, there are certain facets of it of which you need to be aware:

  • All records need to be obtained. This includes any correspondence with the hospital or doctor, pamphlets that you were given, consent forms, bills, and any other records and documents related from all medical providers whom you saw for this case.
  • A team of experts is necessary who will advocate on your behalf. Having second, third and even fourth opinions on your case is beneficial, especially if they all confirm that a preventable error was the cause of your injuries and damages.
  • At least one expert is needed to establish the applicable standard of care that your provider was required to follow and to testify or report how your provider deviated from that standard or breached his/her duty to adhere to it.
  • There must be a direct connection between the alleged error and the condition or injury. Your experts must demonstrate that the doctor’s deviation from the standard of care directly led to the injury.
  • The medical provider will have to show that the error was unintentional and occurred while he/she was providing quality medical care that was consistent with and met the applicable standard of care.
  • You have 2-years from the date of the surgery or last time you received care from the doctor to file a lawsuit or it is waived.
  • If you are under 18, the 2-year statute of limitations is tolled, or delayed, until 2-years after your 18th
  • Even if the physician or staff committed an error, you have a high burden in showing that your injury and damages were the direct result of the error and would not have occurred but for the error.

There is a cap on general or non-pecuniary damages such as pain and suffering in medical malpractice cases of $380,912 with some exceptions in particularly egregious cases. There is no cap on pecuniary damages such as past and future medical expenses, lost earnings, and burial and funeral expenses.

If an error or omission in care or treatment is shown, the doctor can often prevail by introducing defense medical experts who will testify that the condition or injuries were caused by some other condition or would have occurred regardless of the alleged error. If a court determines that the defense experts are more credible or that your experts have not proved to its satisfaction that malpractice occurred or that it was the direct cause of your damages, you will not prevail. A poor result or outcome of a procedure or treatment is not enough to sustain a malpractice claim. Some conditions are difficult to treat and a doctor cannot be considered a guarantor of a favorable outcome. If you were informed of the known risks and complications such as infection or stroke, the provider will not be found liable. If more than one treatment option was available and acceptable by the medical community but which turned out poorly, the provider is not responsible.

Also, unless your condition or injury is severe or serious, few legal practitioners will pursue the claim even if the error clearly constituted malpractice.

For any medical malpractice claim brought to us, you can expect a Toronto medical malpractice lawyer from Affinity Law to:

  • Obtain a detailed history from you or family
  • Determine if your damages are significant enough to purse the claim
  • Accumulate all medical records pertaining to your claim from every practitioner who cared for you or the family member
  • Carefully review, identify and analyze the medical issues relating to the standard of care
  • Provide the records to medical experts to review and provide opinions on negligence, causation, and damages

Call a Toronto medical malpractice lawyer from Affinity Law if you or a loved one suffered serious injuries and damages from a suspected medical error. We will take the time and effort to explain our procedures for handling such cases and give you an informed opinion about the possibilities for a satisfactory resolution of your claim.

Call us today for a free consultation at (905) 738-2463.

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