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For the past two decades I have devoted the majority of my legal practice to representing patients in claims against doctors and hospitals. Over the years, the most common question I am asked is: “Can I sue for medical malpractice?”
The short answer is yes, anyone can start a lawsuit for medical malpractice. Very few, however, will be successful.
Anyone who has recently had a bad outcome from receiving medical treatment will be understandably angry and upset. The immediate reaction may be to think about a civil lawsuit as a remedy. When there has been a significant loss of life, limb or function because of suspected malpractice then absolutely you should consider a civil lawsuit for compensation.
There are, however, some important nuances to our civil litigation system as it relates to medical malpractice claims that I believe all potential clients should know. In this article, I answer the following additional questions that in my opinion all potential medical malpractice clients should know before engaging a lawyer:
No, not really.
It is very important to keep in mind that civil lawsuits are primarily about financial compensation. Our civil justice system does acknowledge that lawsuits are also meant to condemn negligent behavior in our society, however, at the end of the day, it is still all about dollars and cents.
For the vast majority of medical malpractice lawsuits, the purpose will be to put the injured person in the best financial position possible as if the negligent care did not happen. In extremely rare cases would a court ever award punitive damages against a doctor or hospital. Even if the court did so, it may not even be covered by the physicians’ indemnity association leaving collection of any such award potentially difficult.
A lawsuit is potentially harmful to a physician’s professional reputation and it is for this reason that civil claims are so vigorously defended by the Canadian Medical Protective Association. A successful lawsuit against a physician must be reported to the College of Physicians and Surgeons of Ontario and may (though not often) have licensing repercussions. If the physician that was successfully sued worked in a hospital setting, they may also find themselves having difficultly maintaining or renewing their hospital privileges.
Being named in a lawsuit can also be perceived as a nuisance for most physicians who must attend court proceedings and meet with lawyers to defend themselves.
Ultimately, however, a physician that is sued for medical malpractice will not be out of pocket for their legal fees or the monetary award paid if the patient succeeds.
Although physicians do not like being sued, there exists a very effective system in place to defend and indemnify them. For this reason, a lawsuit is not really the most appropriate means to achieve retribution if that is the objective. If the goal is to punish a doctor for their bad behavior then my advice would be to pursue a complaint with their regulator, the College of Physicians and Surgeons of Ontario.
A lot.
Although medical malpractice lawyers will offer contingency fee agreements that include coverage for the significant out of pocket expenses required to hire expert witnesses, the reality is that these lawsuits still cost a lot of money to litigate. Medical malpractice claims are much different than standard personal injury claims (such as car accidents or trip/slip and falls) that typically almost always resolve for some amount of money.
Because of the concern for reputational harm, medical malpractice claims are heavily scrutinized by defence lawyers requiring the patients’ lawyer to expertly advance a meritorious claim or face dismissal and non-payment.
This means that cases of relatively low financial value are often “bad risks” for lawyers. It is unfortunate, and for the select few lawyers that specialize in this area I can say it is with sincere regret that many of us must turn away claims that could have merit but are simply not large enough to justify the significant time, expense and risk that goes into every one of these lawsuits.
Cases involving the elderly, patients with significant medical histories, and non-income earners are some examples of the demographic of patients who may not have the ability to hire a medical malpractice lawyer simply because the cost of representation would likely far exceed any amount of recovery.
It depends.
There are broadly speaking three categories of damages that a person can recover in a lawsuit (assuming they get over the difficult hurdle of proving liability against a doctor or hospital): pain and suffering damages (or general damages), lost income and cost of care.
General damages are capped in Ontario, though adjusted for inflation. As of the publication of this article, the maximum general damages that could be awarded is approximately $450,000.
There are no limits on claims for income loss or cost of care. An income loss would arise if a person who worked could no longer work because of the malpractice. An income loss (or dependency loss) could arise where a working person died because of medical malpractice and they had dependents (wife, children, etc.) who relied on their income for financial support. A person who was not working at the time of the malpractice, perhaps due to age or pre-existing disability, would not receive any compensation for income loss.
The cost of care in a particular case can vary dramatically. In Ontario, most medical services are covered by OHIP. Out patient rehabilitation services, such as physiotherapy, occupational therapy, and psychological counselling, are not covered by OHIP (though some people have extended health coverage through an employer that may provide some modest coverage). Over a life time, these costs can accumulate.
However, the most significant care costs would be arise where a person requires fulltime assistance with their activities of daily living in the form of attendant care. This is where a person needs assistance with dressing, toileting, bathing, feeding, etc. Patients who are advancing claims arising from delayed diagnosis of stroke, cauda equina syndrome, or as a result of a traumatic birth injury often have large cost of care claims.
4-7 years, on average.
Medical malpractice claims have a slower turn around rate than a general personal injury claim.
Usually a medical malpractice lawyer will not even initiate a lawsuit until they have at least completed a preliminary investigation. This would typically involve collecting medical records and verbally consulting with one or more experts to identify whether there has been substandard care and whether that care likely caused harm to the patient. The process of completing this preliminary investigation often takes 6-12 months depending on expert availability.
Once the lawsuit is started, it will typically have to go further along through the court system before it is resolved. The general statistics I quote to clients is that about 1/3 of claims are ultimately abandoned with no payment to the patient, 1/3 settle, and 1/3 go to trial. Of the cases that go to trial, the doctor and hospital are generally favoured to win. Every case is different, of course, but ideally you want to be the client in the settlement group and to do that you need to have a lawyer that is experienced and prepared to take your case to trial.
The unfortunately reality is that settlements don’t usually happen until you are much closer to a trial. Given the way our civil justice system works, this means your case can take many years before it resolves. Even if you win at trial, most trial decisions are appealed by the doctors which adds another year or so until your case may be finally resolved.
The length of time it takes to receive compensation, particularly for patients with strong claims, is outrageous to say the least. Victims of medical malpractice not only must suffer from being critically disability but must also live in poverty until they receive the compensation they deserve.
Some might, some might not.
It really all depends on the lawsuit. A lot of cases arise simply because of human error. Hospitals are doing a fantastic job at creating safeguards to protect patients from human errors, but they still happen. A lawsuit probably isn’t going improve patient safety against most human errors.
However, some lawsuits may highlight systemic problems in a hospital that may result in a change in policy or procedures which then in turn improves patient care. A civil lawsuit against a physician may cause them to reflect and improve their knowledge or expertise in a discrete area of medicine. So, although I do believe lawsuits can improve patient safety, I would not say that a lawsuit is the best way to do it. It may help but it would not justify bringing a lawsuit for this reason alone.
If the primarily concern is patient safety, then I would always encourage patients to make complaints to a hospital if applicable, or the relevant regulatory body of the health professional such as the College of Physicians and Surgeons of Ontario or the College of Nurses of Ontario, etc. The mandate of these regulators is to protect the public from harm and so they really are the best place for a patient to go if patient safety is their primary concern.
Medical malpractice claims are extremely challenging to successfully prosecute. Nevertheless, there are many instances where negligence or medical errors have caused harm to a patient and they have a good prospect of successfully achieving compensation for their injuries. If you have suffered serious harm from what you believe may be medical negligence, you should speak with one of our medical malpractice lawyers for advice on whether you may want to pursue a claim.
On December 12, 2024, the lawyers and staff of Davidson Cahill Morrison LLP celebrated the holiday season together with a family style lunch at Gusto 501.
It is not uncommon for a car accident victim to subsequently suffer further harm through medical negligence while being treated for accident related injuries. This decision illustrates the importance of understanding the interplay between medical malpractice and statutory accident benefits.
At first “blush” this Exclusion appears to exclude just about everything. Regrettably we have seen denials from title insurers that reference this Exclusion in a very aggressive way. Title insurers, and the lawyers that sell their policies, suggest to Insureds that they can make claims on their own behalf.
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