Short answer is: it depends.
Medical malpractice litigation raises complex issues of medicine and law. The factual, procedural and legal issues involved in medical malpractice actions are unique to each case which, in turn, dictates the complexity of each case and the length of litigation.
Medical malpractice litigation constitutes civil litigation. The procedural steps in all medical malpractice cases are similar and generally involve: issuing a statement of claim; conducting examinations for discovery; attending mediation; pre-trial; and trial. However, although the overarching civil litigation process is similar for all medical malpractice claims, the length of litigation varies for each case.
These variations arise from both the factual circumstances giving rise to the case and the procedural steps required in each case.
The factual circumstances giving rise to a medical malpractice action will impact the legal analysis and evidence required to meet the legal test, which in its most basic form, involves an analysis of whether (1) the medical professionals breached the applicable standard of care and (2) whether the breach in the standard of care caused the plaintiff’s outcome, on a balance of probabilities.
At Bogoroch & Associates LLP, we conduct a comprehensive investigation into these legal issues by thoroughly reviewing the pertinent medical records in order to identify potential breaches of the standard of care, which are causative of the plaintiff’s outcome. Depending on the nature of the medical treatment rendered and the alleged breaches of the standard of care, litigation may be commenced as against numerous defendants. Generally, when litigation involves numerous parties, these cases can take longer to resolve.
Moreover, the factual circumstances and the nature of the medical treatment giving rise to the action impacts the number of experts required. Expert evidence is necessary in most medical malpractice cases in order to substantiate the legal tests (standard of care and causation). When complex medical issues arise, expert evidence from numerous medical specialities is often required, and this in turn will impact the length of litigation.
From a procedural perspective, in some circumstances, interlocutory motions are required, which may cause delays in litigation. For example, motions may be required to ensure compliance with undertakings or to compel answers to questions improperly refused at examinations for discovery.
Lastly and most importantly, the civil litigation system is facing significant delays, which directly and adversely, impact plaintiffs. There is no question that delay in the civil justice system, particularly the delay in scheduling pre-trials and trials, compromises access to justice. At Bogoroch & Associates LLP, we vigorously litigate cases and often bring motions to ensure litigation proceeds in a timely and efficient manner. We routinely bring motions to compel attendance at examinations for discovery or mediation in order to ensure that litigation proceeds in a timely manner for our clients.
At Bogoroch & Associates LLP, we have a thorough understanding of systemic delays in the civil justice system and, in response, our lawyers endeavour to strategically use all resources available to negate the prejudice to our clients caused by delay. For example, in accordance with Justice Koehen’s recent decision in Miller v Ledra et all, 2023 ONSC 4656, confirming judges’ greater control of the court process, we routinely schedule Case Conferences to address procedural issues and delay. Justice Koehen stated:
…judges must be free to assume greater control of the court process. Until now, the predominant practice in civil matters has tended to be to allow the parties to determine how much court time they want and how they want to use that court time. That makes the court system the only public service in which the user gets to dictate terms of use. That approach is simply not sustainable as the current delays demonstrate. Individual parties are not the stewards of the justice system. Judges are. Judges must have the ability to determine, with the help of the parties, what information the judge needs, how best to get it to the judge and what procedure is proportional to the issue at hand. The parties have had that opportunity here. I am more than satisfied that awarding the relief sought on a case conference here is a fair and just way of determining the issue.
Overall, how long a medical malpractice case takes to resolve or to advance to trial depends on a plethora of factors arising from the complexity of the factual, procedural and legal issues which are unique to each medical malpractice case. Nevertheless, the overarching inherent systemic delay in the civil justice system cannot be ignored. In addition to litigating complex medical malpractice actions, combatting broader systematic issues facing the civil justice system are at the forefront of our practice at Bogoroch & Associates LLP.
Bogoroch & Associates LLP is experienced in all aspects of personal injury and medical malpractice litigation. We have the confidence and skill to advance your accident or medical malpractice claim to settlement or trial while helping you navigate 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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