Claiming Medical Malpractice Injury Benefits

Our lawyers specializes in the litigation of medical malpractice suits in Ontario. If you have been the victim of medical negligence resulting in a serious injury, we can help you obtain the compensation you deserve.

Experienced medical malpractice lawyers

Our lawyers has more than ten years’ experience in the medical malpractice field, and our personal injury attorneys have considerable expertise in both identifying and successfully defending medical malpractice suits in the Greater Toronto Area.

We will carefully review your case and assist you in collecting the necessary evidence. Once all the documentation - including witness testimonies, medical records, reports, photographs, etc – have been assembled, we will determine whether your claim can be successfully pursued.

Our malpractice attorneys have a keen understanding of the burden of proof placed on plaintiffs in these cases, and will ensure that your medical malpractice claim, when pursued, is ironclad. We will also provide expert witnesses to testify on your behalf regarding your particular circumstances.

Understanding medical malpractice in Ontario

Medical malpractice is the area of personal injury tort law that allows redress in cases of negligence, gross error or abuse by a health care practitioner results in patient injury or death. A lawsuit may be directed at the practitioner or health care facility, depending on the liability of the particular case.

While ‘malpractice’ itself is not a clearly defined legal term, there are very specific legal requirements in successfully suing for medical malpractice. Our malpractice attorneys must show that there was a) a duty of care toward the patient; b) that there was a breach of that duty of care; c) that the patient suffered harm or injury and d) the harm or injury was directly caused by or related to the breach of duty of care.

In other words, the physician must have had a responsibility to care for the patient, and failed in that responsibility in some significant way; and that failure must have led directly to substantial harm or injury.

Establishing exactly what constitutes a breach of care is difficult. However, Ontario’s courts have stated the burden of the medical practitioner as such:

“Every medical practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. He is bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same experience and standing and, if he holds himself out as a specialist, a higher degree of skill is required of him than one who does not profess to be so qualified by special training and ability….”

This means that a physician’s failures will be judged based on whether his peers, given the same situation, would have likely behaved differently, thus avoiding the harm or injury to the patient.

Proving causation is equally important; a physician may have been negligent in his or her care, without leading to negative consequences. Showing a direct link between the negligent act or omission and the harm or injury is essential to a successful malpractice claim. Some cases are not straightforward, and multiple causes may be present. Our Ontario malpractice attorneys will help establish the causal links needed to bring a successful claim.

Causes for Medical Malpractice Claims

There are different causes that can give rise to a medical malpractice claim:

• Negligence
• Assault and Battery
• Defamation
• False Imprisonment
• Breach of Contract
• Informed Consent
• Fiduciary Duty
• Professional Misstatement

The vast majority of malpractice suits allege negligence. Negligence is defined as a failure by a health practitioner to perform his or her duties within the established standards of care. Negligence can occur in many different ways, both as an overt error and as an omission of duty; for example, failure to order necessary tests, prescribing the incorrect medicine, or failing to weigh the evidence in making a diagnosis.

Medical malpractice is more than just mistakes

Medical negligence is not just about making a mistake: it is about failing to perform according to the norms of the medical profession. This can include tragic mistakes that cost a patient his or her life, or result in permanent disability. But not all mistakes will be considered malpractice.

For example, is important to distinguish the difference between a physician’s inability to produce a desirable outcome, and medical malpractice in a case. Physicians are not expected to satisfy their patients in every regard; they are, however, expected to perform according to a set of standards that holds throughout the profession. Complications and negative outcomes can be acceptable, as long as the physician has performed his or her duties within reason.

However, if your medical practitioner has failed to perform his or her duty of care in a way that caused or led to harm or injury to you, our medical malpractice attorneys will formulate and aggressively pursue your medical malpractice lawsuit.

Malpractice lawsuits can be lengthy and costly

Medical malpractice cases in Ontario present some of the most difficult litigation, due to the complexity in proving the plaintiff’s case and the vigourous defense of medical practitioners in Ontario. A successful outcome depends a great deal on the kind of evidence available, expert witness testimony, and sheer tenacity.

All medical practitioners in Ontario are defended by the Canadian Medical Protective Association (CMPA), who have adopted a ‘scorched earth defense’ of all medical malpractice lawsuits. Settlements are rare, and cases can be very protracted (between three and five years) as defenses are funded by taxpayer money. In fact, the CMPA has made it clear that their mission is to defend their members against malpractice suits, rather than to ensure patients are justly and fairly compensated when harmed.

Because of this, more than half of all cases are dismissed or abandoned before they reach court; and while some are settled out of court, of those that do go to court, only a minority result in compensation.

As such, our malpractice attorneys will carefully review all the elements of your case to make sure it can be successfully pursued. We will let you know exactly what to expect, and how costly the process will be. We will not take your case unless we feel there is a good chance of success.

Compensation in malpractice lawsuits

There are three types of damages which can be recovered: pecuniary, non-pecuniary and punitive.

Pecuniary damages cover direct losses, such as lost wages, medical bills, attendant care, and future medical expenses. Non-pecuniary damages include non-financial losses, such as pain and suffering, loss of enjoyment, and loss of life expectancy. The Supreme Court has effectively capped non-pecuniary damages in medical malpractice lawsuits to about $300,000 (adjusted for inflation) in all but extraordinary circumstances. Unfortunately, this cap has served to deter many from pursuing justified malpractice suits, as it greatly limits the amounts that can be awarded for a protracted and often expensive case.

Punitive damages are those that are meant to punish the defendant in a lawsuit, and to serve as a deterrent to others who might behave the same way. Punitive damages can reach as much as $1 million in extraordinary cases; however, they are rarely awarded in Canadian tort cases.