A serious injury or death that occurs during medical treatment should always be investigated. It’s important to determine whether the facts and circumstances warrant a claim for damages.
Family doctors, emergency physicians, nurses, surgeons, OB/GYN and other medical professionals may occasionally breach the accepted standard of care for their specialty.
Misconceptions of medical malpractice
But not every bad outcome is viable for a claim.
Injuries or death can occur under the care of various medical professionals. However, there are many misconceptions about the viability of case.
Some points to consider.
You cannot sue over bad bedside manner
Bad conduct or neglect by a medical professional, by itself, may not justify a claim. Poor bedside manner, lack of attention, rudeness, or failure to follow up may justify a complaint to the College of Physicians and Surgeons.
Though this may bring discipline, it will not always result in financial damages.
Don’t wait more than two years in most situations
Only a lawsuit can result in a financial award and a claim must be instituted within two years of the date of negligence.
Some cases may qualify for an extended time to sue when the cause or knowledge of the injury is not determined until after the two-year period.
Children under 18 or people with a mental disability will have the time limit extended as well. A lawyer can assist with these time limits but it is always good to investigate well before two-year mark.
Standard of care must be proven
Negligence must be proven on a balance of probabilities and must establish a clear breach of the standard of care.
That breach must also be proven, usually by an independent expert who practices in the field. An expert opinion is expensive and may range from $2,000 to $10,000 just to determine if the standard of care has been breached. Damages must be high enough to justify these expenses.
If proven, the breach must have directly caused the injury or death. An injury or death occurring under the treatment is not sufficient. This is called causation.
The law dictates that “but for” the breach of the standard of care, the injury would not have occurred. This is a difficult threshold to overcome.
Errors in judgment
An error in judgment will often not qualify if the appropriate skills are applied.
Minor injuries are generally not sufficient for a viable lawsuit
Minor injuries usually do not qualify for a lawsuit. Poor treatment that is not below standard will also not justify a claim.
Again, a less than satisfactory outcome after treatment, alone, will not be sufficient for a viable lawsuit.
Multiple doctors can be a challenge
Finally, cases in hospital involving many different doctors are difficult to prove. If the question of causation is too complicated, a case may not be viable.
Do I have a case for medical malpractice?
Some examples of medical situations that may qualify for medical malpractice include:
- Discharge from emergency without doing blood tests and x-rays resulting in injury or death.
- Failure of your family physician to refer a specialist resulting in progression of the disease or illness.
- Failure to follow up on positive ultrasound or blood tests.
- Failure to arrange for x-rays, CT or MRI when required. In addition, a failure to report the results and take action.
- Failure of nursing to report deterioration to the attending physician. Failure to follow a doctor’s orders by hospital staff.
- Failure to treat bed sores, sepsis or arrange for consultation by a specialist physician.
- Failure to diagnose and treat appendicitis before a rupture.
- Prescribing the wrong antibiotic or failure to prescribe antibiotics.
- Birth trauma caused by delayed Caesarian.
- Surgical errors that are not within the ordinary risks of that surgery.
Medical malpractice cases are vigorously defended and the defence will have experts who provide opinions that oppose the plaintiff’s experts.
Cases must be chosen carefully to avoid the trauma and pain of losing the case.
Adverse results can bring claims for legal costs against an unsuccessful plaintiff. Experts who are willing to consult with plaintiffs are not plentiful.
A lawyer who takes on such cases must have the skill, the experience and the resources to start and finish the case.
Make certain your case is evaluated by a skilled and experienced lawyer in this field and make sure the lawyer has the resources to complete the case. Many cases do not settle or they settle after several years in court.
Do you have questions about whether your case qualifies for a medical malpractice suit?
