Medical Malpractice
Doctors, nurses, and other health care practitioners make mistakes. If you are injured as the result of this type of mistake, you may be entitled to compensation for:
- Pain and suffering, referred to as "general damages."
- Loss of income and loss of ability to earn income.
- Housekeeping and home maintenance expenses.
- Health care expenses not covered by OHIP or other sources.
Nature of Claims
Most medical malpractice claims arise out of the negligence of a doctor or nurse and/or the absence of the informed consent of a patient under the care of that doctor or nurse.
Medical malpractice claims have two important components: Negligence and Causation.
Negligence
Proving a health care provider was negligent is typically achieved through the use of an expert witness. The expert will testify in court as to the appropriate "standard of care" that should have been exercised and contrast that with what was actually provided. A judge and/or a jury must be satisfied that the provider fell below the applicable standard of care and caused the damage which is claimed.
Standard of Care: The standard of care expected of a health care practitioner is that degree of skill and care to be expected of a provider with that individual’s training and experience. The standard in any given case will vary depending on the circumstances.
Causation
Even if the health care provider’s care fell below the standard, you must prove that the failure to meet the standard resulted in your injuries and related damages.
Informed Consent
Another potential cause of action against a health care provider (normally a physician) relates to the concept known as informed consent. Except in extraordinary circumstances, consent to a medical procedure must be informed. That means that for your consent to be valid it must be made after you have been advised of the material risks and benefits. If you have not given informed consent for the procedure then the physician will be liable.
It is not necessary that you be advised of rare complications unless they may result in serious injury or death.
There is also a causation component to informed consent. Even if it is established that a procedure was performed without your informed consent, there will be no liability if it can be demonstrated that a reasonable person in your shoes would have consented to the procedure even if they had been told about the risks and benefits.
In evaluating claims of this nature we may employ the assistance of expert consultants to advise as to what risks ought to have been disclosed but as well, must evaluate the relative credibility of the parties.