Our healthcare system in Ontario is overwhelmed. Doctors are expected to see many patients in short periods of time.
Unlike lawyers, doctors are human.
Doctors can get things wrong. Put them in the pressure cooker that is Ontario’s health care system and the likelihood of medical mistakes and medical negligence increases.
Even the best doctors make mistakes. Some mistakes are harmless, but other mistakes can have devastating consequences for patients and their families.
Mistakes don’t make someone a bad person or a bad doctor. We all make them. Because mistakes happen, doctors and other medical professionals fall below the standard of care required under Ontario law and a patient is harmed, compensation may be available through a medical malpractice claim.
At Bergeron Clifford Injury lawyers, our lawyers help families understand their legal options after a medical error. Note, however, that not all mistakes are legally compensable.
What Makes a Medical Mistake Compensable Under Ontario Law?
To prove medical malpractice or medical negligence claims in Ontario and get compensation after a medical mistake, you must prove four legal elements:
- The doctor (or other medical professional) owed you (the patient) a duty of care;
- The doctor (or other medical professional) fell below the standard of care required of them in discharging that duty;
- You (as the patient) suffered harm or injury; and
- The harm was caused by the doctor/other professional’s fall below the standard of care.
Number 1 is usually easy to prove (if you were a patient of the doctor). Numbers 2, 3, & 4 are harder. Standard of care, harm and causation is far more complex and is often where Ontario medical malpractice claims succeed or fail.
What is the Legal Standard of Care for Doctors in Ontario?
Doctors aren’t expected to perfectly diagnose, treat, and predict every illness or ailment, but they are expected to take reasonable steps with accepted medical practice in Ontario, to diagnose and treat their patients.
What is “reasonable” can be hard to assess under Ontario medical malpractice law. When evaluating a medical negligence claim, we hire qualified medical professionals and expert doctors to review the victim’s medical records and give us an opinion about whether the doctor or other medical professionals met the applicable standard of care and determine if they acted reasonably.
Even with the help of experts, there are still a lot of grey areas. Sometimes, the experts in medical malpractice cases disagree about what is reasonable. And, as the old saying goes: there’s more than one way to skin a cat. Competent doctors can and do disagree on diagnoses and treatments. Sometimes a doctor may choose a treatment plan that is less than best practice, but not unreasonable in the circumstances. After all, doctors don’t have unlimited resources, and they aren’t experts in everything.
Even when doctors make mistakes, their mistake might not be considered negligent in the circumstances.
For example, an obstetrician performing a planned delivery would be held to a higher standard and expected to know more about obstetrics than the general practitioner responding to an unscheduled emergency delivery. The general practitioner would still be expected to have some obstetrics knowledge but may be forgiven for missing something more nuanced that a reasonably competent obstetrician would have caught.
By way of another example, a patient may have some warning signs of a disease, but their frequency and severity might not be enough to raise suspicion in a doctor’s mind. A doctor missing that early diagnosis may not fall below the standard of care if other reasonable doctors practicing in Ontario could have just as easily missed the diagnosis.
Bottom line: reasonableness, but not perfection, is the standard expected of doctors under Ontario law.
Do You Need to Prove Harm to Bring a Medical Malpractice Claim in Ontario?
To bring any injury claim, including medical malpractice or medical negligence claims in Ontario, the plaintiff must have suffered some harm or loss. Some medical mistakes are “near misses”. These near misses can include situations where the doctor made a serious medical error, but if there’s no resulting harm, there’s no legal basis for compensation.
Typically for a medical malpractice cases in Ontario, to be economically viable, the harm and resulting loss must be significant. For mistakes resulting in minor to moderate injuries, the cost of investigating and prosecuting a medical malpractice claim can exceed the value of the claim itself, even where a medical error can be proven.
The Causation is the Hardest Part
In medical malpractice cases and medical negligence cases in Ontario, causation is hotly (and sometimes callously) contested.
“Your mother would have died from the cancer anyway, even if Dr. X caught it sooner”
“Dr. Y’s medication error didn’t cause your heart attack – your obesity and smoking did”
“We don’t know what caused your neurological disorder, but there’s no evidence that it was Dr. Z’s mistake”
These are all lines we’ve heard before from lawyers for the Canadian Medical Protective Association (CMPA), the insurer that defends doctors in Ontario. They’re also all potentially valid defences to a medical negligence claim. Just because a doctor made a mistake, and a patient suffered harm, doesn’t mean that the doctor’s mistake legally caused the harm.
As Ontario medical malpractice lawyers, it’s our job to retain qualified medical and scientific experts to investigate the cause of the injury and prove a casual link between the medical error and the patient’s harm. If that casual link cannot be established on the evidence, a medical malpractice claim cannot succeed under Ontario Law.
What If There Is No Compensation Available for a Medical Mistake in Ontario?
As you can see, there are a lot of hoops to jump through before you can get compensation for a medical mistake under Ontario law.
Even if you can prove all four elements of medical negligence, the harm and resulting loss might not be financially significant enough for a medical malpractice lawsuit in Ontario to make good economic sense.
In those cases, patients and their families have recourse to the College of Physicians and Surgeons of Ontario (CPSO). Patients and their families can make a complaint to the CPSO. The CPSO will investigate the complaint and (if appropriate) discipline the doctor.
Here at Bergeron | Clifford, we work proudly for victims of medical errors across eastern Ontario. Call us today for a closer look at your case.
