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When can I sue my doctor?

A doctor with a cigarette in his mouth. Stock photo by Getty Images.

The many TV shows set in hospitals make the world of medicine seem exciting, even when someone is accused of medical malpractice. But what is the reality in Canada when it comes to medical malpractice? What misdeeds can you actually sue a doctor over?

Understanding how the courts view a case helps to guide you in knowing if a lawsuit against a doctor will be successful.

First of all, the doctor would be sued under the tort of negligence. There are requirements that need to be meet for a negligence lawsuit to be successful. Secondly, we need to examine the standard of care a doctor is responsible for.

What is negligence?

Negligence means the doctor has not met his or her duty to ensure his or her actions do not expose the patient to unreasonable risk of harm. This is what “duty of care.” If your doctor fails in that duty, then he or she could be liable.

The four requirements to meet under negligence are:

  1. The defendant must owe the plaintiff a legal duty of care;
  2. The defendant must breach the standard of care established by law;
  3. The plaintiff must suffer injury or loss; and
  4. The defendant’s conduct must have been the actual and legal cause of the plaintiff’s injury.

The third item on the list is important. There must have not just been a loss, but a “material loss or injury.” To prove material loss or injury, the courts ask the “but for” question. In other words, would the plaintiff’s injury and loss have been occurred “but for” (meaning: if not for) the doctor’s conduct.

If the court finds that the injury and loss would not have occurred if not for the doctor’s action then the negligence lawsuit will likely be successful. This answers when you can sue your doctor. When you can show that if not for your doctor, you would have suffered no injury or loss.

What is the standard of care for a doctor?

A standard of care is the standard of service or care a professional has to provide that other reasonable practitioners would provide in similar circumstances. Basically, the skill that is required from a doctor is that which could be reasonably expected of a normal, prudent practitioner of the same experience and standing.

The standard of care for a doctor who is a general practitioner is that of the “reasonable medical man.” The standard of care for a specialist in his or her field is usually higher.

The courts look at the term “reasonable” in the following ways:

  • Could the accused have anticipated their conduct would create harm?
  • How serious was the harm done?
  • What cost or burden would the defendant have incurred to prevent the harm?

If a general practitioner or family doctor doesn’t know how to diagnose a patient with particular symptoms, or the case exceeds the scope of their knowledge, they have a duty to refer their patient to a specialist. This is also the case when the patient is unresponsive to treatments or when the doctor can’t continue treatments for some reason.

However, even where the doctor caused the material loss or injury doctor but complied with customary practices, he or she may be exonerated from liability.

In short, you can sue a doctor when all of these things are true; he didn’t follow reasonable care, didn’t show a property duty of care, you suffered a material loss and there is a direct link between your material loss and the doctor’s failure in his duty of care. Be aware though that doctors have mandatory liability insurance through the Canadian Medical Protective Association (CMPA). The lawyers CMPA hires are going to rigorously defend the claim which can make the lawsuit a long one. As always, consult with a lawyer if you want to find out whether you would be successful if you started a lawsuit, and how long such a lawsuit would take.

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