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Mar 3, 2022 · Learn the legal steps to take when suing a doctor for negligence in Canada here. Many people who may have valid claims do not explore their rights, says Embury, head of the Medical Malpractice Group at Neinstein LLP in Toronto.
- Aidan Macnab
Jan 8, 2021 · How does a patient who suffered an unforeseen injury during surgery prove that their surgeon was negligent? Can the injury itself provide circumstantial evidence that the standard of care was breached? Or must the plaintiff first disprove all possible non-negligent causes of the injury?
- Introduction
- Legal Proceedings
- Medico-Legal Principles and Duties
- Important Legislation
- Safe Medical Care
- Future Considerations
- References
Medicine and the law
This handbook provides insight into basic legal concepts and underlying principles that govern physicians in their practices. It also offers physicians a greater understanding of the standards and requirements imposed on them by law. This will better equip physicians to recognize and avoid medico-legal difficulties. It is important to highlight that some of the legal principles addressed in this document arise out of the common law system, which applies to all provinces and territories in Can...
The Canadian legal system
Generally speaking, activities are governed by two sources of law: the law created by statute, either federally, provincially, or territorially; and the common law developed by judgments rendered in legal actions that have proceeded through the courts. In Québec, a codified system of civil law is used, though for the most part the underlying principles of medico-legal jurisprudence are similar in common law provinces and territories. There are also two types of legal actions: civil and crimin...
The litigation process
A number of events might alert the physician to impending litigation: 1. A clear error is made (e.g. an operation on the wrong patient or on the wrong part of the body). 2. A serious and unexpected mishap occurs in the course of treatment. 3. The patient is dissatisfied. This should raise a red flag in the mind of the physician. Many legal actions are commenced by disgruntled patients who feel their physician did not give them enough time or attention; these patients may then attribute a resu...
Cause of action
A cause of action refers to the set of facts or alleged faults that, if established, give rise to the claim for damages. More than one cause of action can arise out of the same situation and may be advanced under one or more of the following headings.
Negligence, civil responsibility, and the standard of care
It has often been said that medicine is not an exact science and that a physician does not guarantee satisfactory results or the patient’s renewed good health. Untoward results may occur in medical procedures even when the highest degrees of skill and care have been applied. Taking for granted that the law does not demand perfection, what standard of care must a physician exercise in order not to be considered negligent? Consistently over the years, the majority of medico-legal actions brough...
Consent
There is a very basic proposition recognized by the courts that “every human being of adult years and [of] sound mind has a right to determine what shall be done with his [or her] own body.”54 This general principle is that of the inviolability and integrity of the person in Québec.55Therefore, subject to certain exceptions, such as an emergency or a court order, a physician must obtain a valid and informed consent before any treatment is administered to a patient. An emergency nullifying the...
Informed discharge
1. Although not strictly an element of the pre-operative consent process, the courts have elaborated on the duty or obligation of physicians to properly inform patients in the post-operative or post-discharge period. Thus, a physician must conduct a full discussion with a patient of the post-treatment risks or complications, even statistically remote ones that are of a serious nature. The purpose is to inform the patient of clinical signs and symptoms that may indicate the need for immediate...
Provincial and territorial legislation plays an important role in medical practice. Here are highlights of some of the most important aspects of such legislation.
Disclosure and reporting of harm from healthcare delivery
Physicians are encouraged to consult the CMPA booklet, Disclosing harm from healthcare delivery: Open and honest communication with patients,174which provides extensive advice on communicating with patients when an unanticipated poor clinical outcome or patient safety incident has occurred during care. The CMPA has historically advised physicians about communications with patients concerning the disclosure of harm stemming from healthcare delivery. Indeed, physicians have an ethical, professi...
Interprofessional (collaborative) care
In response to the considerable resource problems facing the Canadian healthcare system, it is becoming increasingly common for healthcare to be delivered through interprofessional (collaborative) practice teams. Today’s reality is that physicians are increasingly working with — and relying on — other healthcare professionals when treating patients. Evolving models for healthcare delivery mean that other health professionals are playing an increasingly significant and valuable role in the car...
Scarcity of resources
The courts have yet to fully address how the scarcity of healthcare resources will affect the standard of care expected of physicians. To date, the courts appear more willing to consider the scarcity of resources when evaluating whether the facilities and staffing were reasonable in the circumstances. The courts, however, appear less ready to accept an economic defence to justify withholding treatment or services from a patient for reasons of overall resource or cost containment.
Several studies have been conducted on professional liability, with resultant reports calling for reorganization of the courts and introduction of mechanisms for alternative dispute resolution. Perhaps the most comprehensive is the 1990 Federal, Provincial, Territorial Review on Liability and Compensation Issues in Healthcare chaired by J. Robert S...
RSC 1985, c C-46.SC 1996, c 19.The Jury Act, 1998, SS 1998, c J-4.2, s 18.Supreme Court Act, RSC 1985, c S-26, s 40.Jun 30, 2014 · Lawyers care about whether an act is “negligent,” not whether an injury is iatrogenic. Doctors are liable at law for injuries caused by their negligence—by their failure to use reasonable care, by their departures from accepted standards of care, by their medical malpractice.
- Paul B. Klaas, Keith H. Berge, Kelsey M. Klaas, James P. Klaas, Annalise Noelle Larson
- 2014
Apr 13, 2023 · Malpractice lawyers say that shields doctors from the financial and reputational blows of court losses and professional discipline, and makes it difficult for patients to seek true accountability.
Apr 18, 2019 · When patients try to sue their physician, a CBC investigation shows the rate of success is very low. CBC News obtained every annual report filed by the Canadian Medical Protective Association ...
Jun 4, 2024 · Being a victim of medical negligence due to a breach of duty of care is an incredibly difficult and traumatic experience. When you trust healthcare professionals, you expect to receive diligent care that meets the highest standards.
