Doctors and nurses in Canada can be sued for medical malpractice (also called medical negligence) if they provide care that falls below the accepted medical standard and that failure causes harm to the patient. However, not every bad outcome will qualify as malpractice.
In order to succeed in proving negligence, a plaintiff (the individual bringing the lawsuit) must show that:
- The defendant physicians and/or nurses breached the applicable standard of care; and,
- That the breach caused harm leading to compensable damages.
- Both standard of care and causation must be proven for a lawsuit to succeed.
What is Standard of Care?
Generally speaking, standard of care is defined as the level of care that is required of a professional, with the same training, education and experience, as the defendant. In order to determine if a physician and/or nurse breached the standard of care, the plaintiff must present expert evidence, typically from a professional in the same specialty as the defendant(s). The standard of care is assessed based on year in which the alleged malpractice took place. For example, if a case if alleging malpractice from 2015, the professional standards from 2015 must be analyzed, not the current standards.
Once a plaintiff overcomes the first part of the negligence test, then they must prove that the breach in fact caused physical and/or psychological harm. If a physician and/or nurse breached the standard of care but the breach did not cause any harm, then the plaintiff would not have any compensable damages.
What Makes Medical Malpractices Cases Difficult to Litigate?
In Canada, doctors and nurses do not defend themselves personally. Physicians are defended by the Canadian Medical Protective Association (CMPA) and nurses are defended by the Healthcare Insurance Reciprocal of Canada (HIROC).
Both the CMPA and HIROC are powerful organizations with significant resources and highly skilled legal teams. This makes medical malpractice cases challenging and requires plaintiffs to have experienced counsel who are familiar with the nuances of medical malpractice law.
Medical malpractice lawsuits are among the most complex in Canadian law. They involve extensive medical records, multiple expert witnesses and often take many years to litigate.
Below are some frequently asked questions with respect to medical malpractice litigation:
How Long Do I Have to File a Medical Malpractice Lawsuit in Ontario?
The general rule under Ontario’s Limitations Act is two years from the date you knew, or should reasonably have known, that malpractice may have occurred and that it caused you harm. There is also an “ultimate limitation period” of 15 years from the date of the alleged negligence, even if you did not discover it right away.
Different rules apply for children or patients who are mentally incapable.
What Damages Can I Claim in a Medical Malpractice Case in Ontario?
- General damages: For pain, suffering, and loss of enjoyment of life.
- Income loss: Past and future lost wages or reduced earning ability.
- Medical and care costs: Ongoing medical expenses, future care. rehabilitation, home care, and equipment.
- Out-of-pocket expenses: Travel, medications, and other costs linked to the injury.
- Family Law Act Claimants: Family members (I.e. spouse) can sue for a loss of care, guidance and companionship due to their loved one being injured.
How Long Do Medical Malpractice Cases Take in Ontario?
These cases are complex and often take several years to resolve. Cases can settle before trial, but timelines depend on various factors such as the complexity of medical evidence, and the court schedule.
Do I Need Expert Evidence to Sue a Doctor or Nurse?
Yes. Expert medical opinions are required to establish both the standard of care and causation. Without expert support, a malpractice case cannot succeed.
How Much Does It Cost to Sue a Doctor in Ontario?
Medical malpractice cases are expensive because of expert witness fees and lengthy court processes. Many law firms, however, work on a contingency fee basis, meaning you don’t pay legal fees upfront and the lawyer is paid if the case is successful.
We Are Here to Help
Navigating a medical malpractice case can be challenging, but you are not alone. Our team is committed to supporting you and pursuing the justice you deserve. If you believe you or a loved one has been affected by medical negligence, please contact us for a free consultation. We are here to help.
