Suffering from a healthcare professional’s negligent act or omission is difficult to begin with, and, unfortunately, attempting to pursue legal recourse is also difficult. If you or someone you care about wishes to pursue a medical malpractice case, it is important to know how these cases operate in Ontario.
1. The Test:
To succeed in a medical malpractice case, you, the Plaintiff, must prove both:
- That the physician in question breached the standard of care that is reasonably expected for the treatment you received; and
- That the breach of the standard of care caused your injury and resulting damages.
2. Standard of Care
It is important to note that the standard of care is not a standard of perfection. There are certain things that clearly cause harm but are within the standard of care for a particular procedure. For example, a known complication of an angioplasty, or the reopening of a blocked artery, is a tear in the lining of the artery. Although this tear clearly causes harm to the person who endures it, the harm may not be a breach of the standard of care, given that it is a known complication.
3. Causation
In contrast, there may be cases where there is a clear breach of the standard of care, but a challenge arises when trying to prove that the breach caused the injury in question – this is known as causation. The generally accepted test in our courts is the “but for” test, which requires Plaintiffs to prove that but for the Defendant’s negligence, the injury would not have occurred.
4. Expert Support
To prove a breach of the standard of care and causation, Plaintiffs must rely on the opinions of experts to support their case. Experts in malpractice cases are other medical practitioners who provide support, or indicate lack of support, for the two parts of the test. Without expert support for both parts, the case will not succeed. For Plaintiffs, gaining expert support can be difficult as it requires doctors who are willing to comment on and critique their colleague’s work. Retaining experts is also costly, and they must have some degree of knowledge of the law.
5. The CMPA
For Defendants, however, obtaining expert support is typically easier as the Canadian Medical Protective Association (CMPA) has a vast network of experts. The CMPA vigorously defends doctors in Canada all the way to trial. With billions in assets*, it should come as no surprise that the CMPA certainly has an advantage over those who have suffered from medical malpractice when it comes to pursuing litigation.
6. Costs
Lastly, in terms of advancing litigation, Ontario follows a loser pays system. That means that if you decide to take someone to court and you lose, you may have to pay a portion of, or all of, the successful side’s legal costs. Costs in Canada can easily reach hundreds of thousands of dollars and this regime acts as a strong deterrent to pursuing litigation. In many cases, the legal costs and fees themselves will be much higher than any potential reward a Plaintiff may receive, making the pursuit of litigation meaningless. This can be true both for an adverse costs award (paying the other side’s costs), and even for payment of your own firm’s fees.
7. How We Can Help
Although winning a medical malpractice case is extremely difficult, it is not impossible. Bogoroch & Associates has years of experience delivering excellent client service and earning our reputation as one of the top ten personal injury boutiques in Ontario. Not only will we pay to retain expert support for your case, we also have a roster of qualified individuals to provide their opinions. We also operate on a contingency fee agreement basis to ensure that justice is available to all – if your case is lost you will not have to pay anything. We do this because we believe in our expertise to help you obtain justice and the compensation you deserve. We do not hesitate to take a winning case to trial and would be honoured to help you or your family.
*source: https://www.cmpa-acpm.ca/static-assets/pdf/about/annual-report/2019/annual-report-e.pdf
Bogoroch & Associates LLP is experienced in all aspects of personal injury and medical malpractice litigation. We have the confidence and skill to advance your motor vehicle accident or medical malpractice claim to settlement or trial while helping you navigate the complex medical, legal, and insurance issues.
Our experience, commitment to excellence, and reputation have long been recognized. Our founding partner, Richard M. Bogoroch, has been recognized as a leading personal injury lawyer by The Canadian Legal Lexpert Directory and by The Best Lawyers in Canada. The Canadian Legal Lexpert Directory and The Best Lawyers in Canada are two highly regarded lawyer rating publications.
If you or your loved one has been injured in an accident or believes that you are a victim of malpractice or negligence, reach out to a personal injury or medical malpractice lawyer to understand if you too have a claim. Please contact any of our personal injury lawyers at Bogoroch & Associates LLP for a free consultation.
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