If a medical practitioner mistreated or misdiagnosed you and you have suffered harm and/or injury, you can likely sue him or her for medical malpractice.
It’s important to know that nearly all Canadian physicians are insured by The Canadian Medical Protective Association.
The CMPA is known to vigorously defend claims for medical malpractice. In fact a judge even accused them of practicing “scorched earth policy” – meaning they’re defending cases too rigorously.
Provincial/territorial law would govern the law under which you would sue a doctor, and other medical practitioners like dentists, nurses, and optometrists.
However, provincial/territorial laws in regards to suing for malpractice are similar, so in general suing for malpractice involves a claim of negligence and the law of negligence is quite similar across the provinces and territories.
Medical practitioners have a fiduciary duty towards their patients. That means they have to act with good faith and loyalty towards the patient.
Additionally, doctors have high standards when they’re practicing in Canada and have a legal duty to give proper medical care.
The following standards apply if a physician were being sued.
Duty of care
There is a natural duty of care that arises out of the doctor-patient relationship. That includes the obligation of making a diagnosis and advising the patient about the diagnosis.
Furthermore, the physician also has to treat the patient properly, in line with current and accepted standards of practice.
Additionally, if the doctor is unable to diagnose the patient, then he or she must refer the patient to another doctor or consult with another doctor. This also applies when the doctor is not available, then the patient must be referred to another doctor.
Physicians also have a duty to actively instruct their patient about treatments for their condition and follow-up care.
Standard of care
The standard of care doesn’t have to be that the physician has to be perfect and make no mistakes. Rather, the standard of care is that of a reasonable doctor: the level of care and skill that can be reasonably expected for a doctor to have in similar circumstances to those of the doctor being sued.
In addition, even if a mistake was made, a medical practitioner is not liable for every mistake he or she made. The question to be asked is whether the doctor made a decision that reasonable doctors would have made in the same circumstances, even if he or she made a mistake.
What can I sue for?
The four requirements to be met under negligence are:
- There must be a duty of care owed towards the patient.
- There must be a breach of that duty of care.
- The patient must have suffered some harm or injury.
- The harm or injury must be directly related or caused by the breach of the duty of care.
It’s important to know that it’s not enough to claim that the medical practitioner breached their duty of care. As per the third requirement, the patient must establish that there was actual harm or injury. If that element isn’t present, it’s going to be hard to make a case.
Note that in Quebec, the law is a bit different, because they have a different legal system. However, in general, the issues, when it comes to malpractice law, are pretty much the same.
If you are thinking about suing for medical malpractice, you need to consult a medical malpractice lawyer quickly, because there are limitation periods, by which you must file your court claim.
Frazer v. Haukioja