What You Need to Know Before Making a Medical Malpractice Claim

July 5, 2022

Thank you for your interest in Thomson Rogers, we understand that you are most likely dealing with a number of complicated and difficult issues and that having discussions with a law firm is probably not a very comfortable experience for you and your family.

This is designed to generally explain the situation you or your family member may well be in. No two people or cases are exactly alike but we hope that this general information will prove useful to you. If you or someone you care about has suffered SERIOUS PERMANENT DAMAGES as a result of a negligent act or omission by a health care professional, we can help.

This is written as if you were the patient who was injured by malpractice. It applies with necessary modifications. You are a family member contacting us about harm suffered by another.

Medical malpractice lawsuits are almost always complex, time-consuming, risky and extremely expensive to pursue. They should never be undertaken lightly and without a full understanding of the risks and possible consequences.

In order to succeed in a medical negligence lawsuit in the Province of Ontario, you must prove that…

  1. The offending health care practitioner(s) fell below the standard of care reasonably expected in your type of treatment; and
  2. The failure of the health care practitioner to meet that standard of care was likely the cause of your injury and damages.

In order to answer the medical and legal questions in this two-part test, your complete hospital chart and all related medical records must be obtained and one or more appropriately qualified health care practitioners must be hired to review the documentation and to provide expert opinion. If the expert is of the opinion that the offending health care practitioner fell below the expected standard of care and that this failure was likely the cause of your bad outcome, the expert is asked to provide a report in support of your claim. It will cost money to obtain your records, and the doctors reviewing those records and providing opinions will expect to be paid for their work.

Unfortunately, unless and until we have answers to the medical questions in the two-part test, we cannot determine your chance of succeeding in a medical malpractice lawsuit. The reality is that these opinions are vital and neither we as lawyers nor you as a potential client can proceed with a claim simply because “the doctor must have made a mistake” or someone told you the doctor erred or you were convinced that “something went wrong” in the hospital. While in many areas of life your “gut feel” is very valuable and useful, in this area of law nothing can happen without a proper medical opinion from a qualified expert and even that is no guarantee of success in every case.

Financial Retainer

To help defray some of the costs involved, we will often ask you for a financial retainer. This is something that has to be discussed right away.

The evidence that is required to prove a medical case in Court is often difficult to secure (it is hard to find good doctors who are prepared to comment critically on the care given by other doctors) and even when such evidence is obtained, the opinions of our experts are almost always disputed by doctors retained by the insurers for the hospitals and doctors we might sue on your behalf.

As a result of any decision to proceed with medical malpractice litigation, it must be well reasoned and economically justified.

Medical Malpractice Deadlines

There are important deadlines for starting malpractice lawsuits, known as limitation periods.

If you are suing a health care practitioner (doctor, nurse, registered health care practitioner, etc.) or healthcare institution (hospital, medical clinic, etc.), your lawsuit must generally commence within two years of the date when you knew or ought to have known of the facts giving rise to malpractice. To be safe, it may be desirable (though not always necessary) to sue within two years of your first treatment.

The time limit can be even shorter in cases involving the death of the patient or the Intended Defendant. In cases involving death, the lawsuit must be commenced no later than two years from the date of death, regardless of when you knew or ought to have known you may have a claim. If the claim is not started on time, you may be prevented from ever suing for damages.

In cases involving children (18 years of age or younger) or in cases involving victims without the mental capacity to make legal decisions, the limitation period may be extended.

It is important that the lawyers involved in your case are experienced with medical malpractice litigation. You should make sure you only engage an experienced lawyer who specializes in this type of work to help you.

This summary is only a guide and is not intended to replace the legal advice of a lawyer who will be better able to address unique facts of your case. If we are to be hired by you, assuming we are prepared to act for you, it will be necessary for you to make an appointment, meet with one of our lawyers, enter into a written Retainer Agreement, and provide us with a financial retainer (if required) and then instruct us to proceed.

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