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Jill McCartney of the Siskinds Malpractice department explains how you can determine if your case is a Malpractice case.  Jill also explains when you should be contacting a lawyer as well as what to expect during you initial consultation.Law and medicine converge in cases involving potential medical malpractice. Such cases are often complex and technical. For those impacted by potential medical malpractice, the issues are very personal. Individuals and families often are left with more questions than answers, wondering if they should pursue a medical malpractice case.

Individuals and families coping with an unexpected event or outcome from medical care or treatment may be wondering:

  1. What is medical malpractice?
  2. How do I know if my situation involved medical malpractice?
  3. When should I retain (hire) a lawyer for my potential medical malpractice case?

What is medical malpractice?
Medical literature on medical errors and patient safety often use the terms “adverse event” or “sentinel event” to refer to a patient safety incident involving harm. Usually these terms are used to refer to unexpected or unnecessary injury or harm resulting from medical care, treatment, or management, as opposed to the underlying disease or condition.[1] A prominent Canadian study estimated that adverse events occur in acute care hospitals at a rate of 7.5 per 100 patients with 37 percent classified as preventable.[2]

Not all injury or harm suffered during the provision of medical care will give rise to a medical malpractice action. It is only if the health care professional fell below the required standard of care that a negligence action may be successful.

Medical malpractice occurs when, as a result of the negligence by a health care professional, a patient suffers injury or harm. Negligence refers to the failure to use the degree of skill and learning ordinarily used under the same or similar circumstances by others of the same profession. In addition, it must be proven that the professional’s negligence caused the patient’s injury or harm.

To be successful in a medical malpractice action, a patient (or the patient’s family) must be able to establish that:
(1) there was a breach of the requisite standard of care, which
(2) caused injury or harm.

A patient must be able to establish both of the above elements on a balance of probabilities to be successful in a medical malpractice action. Expert medical opinion evidence is required to establish these elements.

How do I know if my situation involved medical malpractice?
During our first client contact, we take a detailed history and assess the injuries and potential damages to determine if a case falls within our expertise and interest. Once a file is opened, we begin with an initial investigation into each case by obtaining the relevant medical records for review to determine the medical history and identify potential issues relating to the relevant standard of care. In the usual course, an expert consultation is sought to get expert medical opinion as to whether there were any breaches of the standard of care, which caused injury or harm.

Following the investigation, if we are of the opinion that there is a reasonable chance of success at trial, i.e. being able to establish a breach of the standard of care, which caused injury or harm, we will recommend proceeding with the case.

Ultimately, if a case does not settle in advance of trial, a trial judge must weigh the evidence to determine if there was a breach of the standard of care, which caused the injury or harm suffered by the patient.

The issues of standard of care and causation usually are complex. The investigation of each issue almost always requires separate medical analysis as well as legal analysis.

When should I contact a lawyer about my potential medical malpractice case?

Generally, there is a two year limitation period for a medical malpractice action. The applicable limitation period depends upon the specific circumstances of each case. Special limitation periods may apply in cases of deceased persons, minor children, or persons under a legal disability.

It is important to seek specialised legal assistance in a timely fashion if you believe that you or a loved one may have received negligent medical care, treatment, or management. A comprehensive assessment of your medical history and injuries must be conducted and reviewed with an appropriate medical expert to determine if there were any breaches of the standard of care, which caused injury or harm. Each person or situation must be assessed on an individual basis.

Jill McCartney is an Associate at Siskinds LLP. She practices exclusively in the area of health law with an emphasis on medical negligence litigation. If you have questions about your legal rights please contact Jill McCartney at jill.mccartney@siskinds.com, or call 519-660-7858.


[1] Disclosure Working Group, Canadian Disclosure Guidelines: Being Open and Honest with Patients and Families (Edmonton, AB, 2011).
[2] G. Ross Baker et al., “The Canadian Adverse Events Study: The Incidence of Adverse Events Among Hospital Patients in Canada” (2004) 170 Canadian Medical Association Journal 1678.

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