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What is medical malpractice?

Medical malpractice occurs when a patient suffers injury or harm as a result of the negligence of a health care professional. Negligence occurs when a health care professional falls below the standard of care expected of a reasonable practitioner of that profession in similar circumstances, and that failure causes the patient’s injury or harm.

What can I sue about?

A patient can sue any health care provider for their negligent medical care (or lack there of) which has caused an injury or harm. Common areas that give rise to medical malpractice actions include:

  • Birth Trauma and Obstetrical Negligence
  • Misdiagnosis and Delay in Diagnosis (including cancer and stroke)
  • Inappropriate or Unindicated Surgery
  • Surgical Negligence
  • Inappropriate or Inadequate Treatment and Management
  • Medication (Pharmaceutical) and Prescription issues
  • Medical Equipment and Device Issues
  • Failure to Properly Monitor and Respond
  • Lack of Informed Consent
  • Wrongful Death
  • Chiropractic Negligence
  • Optometrist Negligence
  • Hospital Negligence
  • Nursing Home Negligence

Is there a time limit to start a lawsuit?

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

After the limitation period has expired you may be precluded from starting a medical malpractice action. If you are considering pursuing a medical negligence action it is important to consult with a lawyer in a timely manner to ensure your limitation period is not missed.

How much will it cost to investigate a medical malpractice case?

Most lawyers will provide a free initial consultation to discuss your potential matter. If your matter is something that both you and the lawyer choose to proceed with, usually medical malpractice lawyers will require an initial financial retainer to offset some of the costs of investigating the merits of case, primarily the cost of obtaining expert opinion reports.

After the investigation has been completed, if it is recommended that you proceed with the case, the matter will usually be on a contingency fee basis (i.e. you would not pay anything to your lawyer above the initial retainer fee unless you were successful at trial or there was a settlement).

What can I expect from a free initial consultation?

We have experience in medical negligence actions throughout Ontario. However, we are generally unable to represent potential clients in relation to actions against doctors or hospital in London, Ontario.

During the free initial consultation at Siskinds LLP, you will speak with one of the team members with expertise in medical malpractice. We will obtain further information about your situation to understand the possible liability, as well as assess the injuries and potential damages to determine if a case falls within our expertise and interest.

We will also discuss the general pathway of a medical negligence action, explore your legal options, and answer any general questions you may have for us. We will provide you with as much information as we can during an initial consultation, but due to the limits of the consultation process, it is unlikely we will be able to provide you with a formal opinion or legal advice.

How long will a case take?

The answer is that it depends. It depends on the individual medical and legal issues in your case and whether the potential defendant is willing to enter into settlement negotiations. Medical malpractice actions have a greater tendency to proceed through to trial than personal injury cases, however, we have been successful in obtaining settlements for many clients. If your matter requires a trial, it may take six years from the date a file is opened to the time of trial. An appeal of the trial is usually at least another year after the trial verdict.

Given the lengthy and complex issues involved in medical malpractice actions, it is recommended that you retained an experienced medical malpractice lawyer to advance your claim and help you through this process.

Do I have a case?

Medical malpractices cases are complex medically and legally, such that we must complete our investigation before we are able to provide you with our opinion as to whether or not you have a meritorious case.

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 a medical opinion as to whether there were any breaches of the standard of care that caused injury or harm.

Following the investigation, we are usually in a position to provide you with our legal opinion as to whether there is a reasonable chance of success at a trial to allow you to decide whether to proceed with the case.

How much is my case worth?

A medical malpractice action may include claims for compensation for the pain and suffering caused, past expenses (including medications, therapies, aids, attendant care), past loss of income, future health care costs, future loss of income as well as what are known as Family Law Act claim in Ontario.

The value of the various claims depends on the specific facts of your case, as well as the expert medical evidence as to what injuries are attributable to the alleged negligence. For more information on the various types of compensation that may be advanced in a medical malpractice action please see our series of articles on damages here.

When comparing contingency fees

  1. What experience do you have with cases like mine?
    Our medical negligence team practices almost exclusively in medical negligence and health law. The partners on our team have over 30 and 15 years of experience respectively.
  2. What legal services does the contingency fee cover?
    As discussed, we usually require an initial financial retainer of $7,500.00 to cover the costs of the investigation into the merits of your potential medical negligence case, plus a graduated contingency fee agreement as set out in the example. The contingency fee agreement includes representation through settlement negotiations, through a hearing/trial, and if recommended, through to an appeal.
  3. What percentage will you charge me if I receive money at the end of my case?
    We charge our contingency fee on a graduated basis, which means that we charge less if the matter resolves earlier in the litigation. The percentage ranges from 25% to a maximum of 40% (if the matter proceeds through a trial and to an appeal). Please see our example Contingency Fee Agreement for more specific examples.
  4. How do you calculate the percentage for your fee?
    The percentage is calculated based on the amount awarded for damages and costs, but does not include any amount awarded for disbursements.
  5. Based on your experience, do you think that we can resolve this case in the early stages? Is the percentage lower if I am likely to win or settle my case early?
    In our experience, it is highly unlikely that a medical negligence case settles in the early stage of litigation. Medical negligence actions are complex and hard fought, such that it is often necessary to proceed through to a trial. In the event that your case is settled prior to the commencement of trial a lower percentage applies as set out in the example Contingency Fee Agreement.
  6. Who will be paying for disbursements?
    Siskinds LLP will pay for the disbursements up front. If you win at a trial or receive a settlement these disbursements will be paid out of that award, in addition to the contingency fee percentage.
  7. Will you take a lower contingency fee if I pay for my disbursements throughout the course of the case?
    No. Given the length, complexity and expertise required to litigate a medical negligence action the contingency fee percentage rates set out in the example contingency fee agreement will remain the same even if you pay for your disbursements throughout the course of the case.
  8. Can you give me an estimate of how much disbursements could end up costing in my case?
    Disbursements are ongoing and will increase the further the litigation progresses. In a medical negligence case it is often necessary to hire multiple experts, particularly expert physicians, which can be costly. If a case proceeds all the way to trial, disbursements can easily be between $50,000.00 – $100,000.00, and may be more if it is a particularly lengthy trial.
  9. If I win my case, will I likely be awarded costs?
    That will depend on the specific factors in your case. Generally, if you are successful at a trial, and there are no limiting factors (such as failure to beat an offer to settle) you will be awarded some amount for costs.
  10. If I lose my case, is it likely I will have to pay costs?
    This will also depend on the specific factors in your case. If you lose at trial and there are no other limiting factors (such as the defendant’s failure to beat your offer to settle), the defendant may request that the court order costs against you.
  11. Based on your experience, how much in costs will I have to pay to the other side if I lose?
    Costs in a medical negligence case can be significant given the involvement of multiple experts, the complex issues, and often lengthy trials. For a short, two week trial, costs could easily exceed $200,000.00.
  12. Will a deductible apply to my case?
    No. Medical negligence actions are not subject to the Ontario Insurance Act and therefore are not subject to a statutory deductible.
  13. If I win or settle, how will I receive my settlement or award money?
    You may receive your settlement or award as a lump sum, or in some circumstances, as a structured settlement (where the lump sum is invested and you are provided with monthly payments by an investment firm). In the case of persons under a disability, including minors, your settlement or award will either have to be through a court-approved structured settlement or, for a minor, paid into court as a lump sum until the minor reaches the age of 18.
  14. Based on your experience, how long will I have to wait for my settlement or award?
    As discussed, medical negligence actions are complex, hard fought, and quite lengthy. It is not unusual for it to take six years from when a file is opened to reach trial, and may be longer depending on the circumstances. It may take another 6 months to receive the trial decision if it is being written by a judge alone. If there is an appeal from the trial decision this can take an additional year to be heard. There is also the possibility that an appeal may order a new trial.

If you have further questions or require assistance with a potential medical malpractice action, contact our team of experienced medical malpractice and health law lawyers.

Kimberly Knight practices with the Siskinds Medical Malpractice department. If you have questions about the information contained within this article, please write to [email protected] or call 519.660.7749.

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