Most of us have heard the term medical malpractice, but what does it really mean? Medical treatment does not come with a guarantee, and most procedures carry what are termed “accepted complications”. This means that even if the procedure is performed as well as would be expected, sometimes an adverse result or complication will occur.
In a legal sense, medical malpractice means negligence. It includes claims allege that a health care provider (physician, nurse, chiropractor, laboratory technician, dentist, physiotherapist or other health care professional) or health care institution (such as a hospital or nursing home) has not met the standard of care expected. This means that the health care provider has not lived up to the standard expected of a “reasonably prudent” practitioner of similar qualifications. In this way, a family physician is expected to meet the standard of care of a reasonably prudent family physician, whereas a specialist is expected to meet the standard of care of a reasonably prudent specialist with similar training and qualifications.
In order to succeed in a medical malpractice claim, not only must the plaintiff prove a breach of the standard of care; a second essential element is to prove that the breach caused an injury and quantifiable loss and damages. While this may sound simple, it can actually be a very complex issue.
Let us look at a case of alleged delay in diagnosis of cancer as an example. Even if the standard of care was breached, the delay did not cause the cancer. In this instance, in order to succeed, the plaintiff must prove the delay impacted his or her treatment or prognosis in a material way. Another example is an alleged failure to properly treat a fractured leg. The leg was already fractured when medical treatment was sought. As such, in order to succeed, the plaintiff must prove that the injury was exacerbated or that additional injuries were caused by the medical treatment provided.
Expert evidence is essential in medical malpractice cases. As such, in investigating whether you may have a potentially viable claim, one of the most important steps your lawyer will take is to obtain expert opinions on the issues of standard of care (including what is the applicable standard) and causation (did the negligence cause the loss). While these are difficult cases and tend to be aggressively defended, a thorough initial investigation and reassessment after each step of litigation is the best manner in which to increase your chances for success.
It should also be understood that even in the event of negligence and causation being established, the loss and damages (measured in terms of financial compensation) have to be sufficient to justify the considerable effort and cost associated with a claim.
Finally, it is important to be aware of the application of a “limitation period” for any potential claim. By law, you must initiate a claim against a health care provider or health care institution within two years of the date of the alleged event of negligence, or the date of discovery of the alleged event. (Special rules apply to children or persons who may not have legal capacity). Failure to bring a claim within the applicable limitation may forever bar a claim for compensation.
If you have been injured as a result of treatment (or a failure to treat) by a health care provider and think you have a potential medical malpractice claim, please feel free to contact a Medical Malpractice lawyer. They would be happy to discuss and answer any questions you may have, and will not charge a fee for the initial consultation.
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