For the past two decades, I have devoted the majority of my practice to representing patients in claims against doctors and hospitals. The question I am asked most often is a simple one: can I sue for medical malpractice? The short answer is yes. Anyone can start a lawsuit for medical malpractice. Very few, however, will succeed.
If you have recently had a bad outcome from medical treatment, you are understandably angry and upset, and a lawsuit may feel like the obvious response. Where there has been a serious loss of life, limb, or function because of suspected malpractice, then yes, you should absolutely consider a civil claim for compensation. But our civil litigation system has some hard realities when it comes to medical malpractice, and I think every prospective client should understand them before hiring a lawyer. In this article I answer the questions I believe matter most:
- What do I actually have to prove?
- Will a medical malpractice claim punish the doctor?
- How long do I have to start a claim?
- How much does it cost to sue a doctor or hospital?
- How much is my claim worth?
- How long does a claim take?
- Do lawsuits improve patient safety?
What Do I Actually Have to Prove?
This is where most claims live or die. To succeed, you have to prove two separate things, and proving one without the other is not enough.
First, that the care fell below the standard of a reasonably competent practitioner in the same field. This is not measured by hindsight, and it is not established just because the result was bad. Medicine is full of risks and complications that happen even with excellent care. The standard of care is a question of expert evidence: another physician in the same specialty has to be willing to say, on the record, that what happened fell below what was acceptable.
Second, that the substandard care actually caused the injury. This is called causation, and it is often the harder hurdle. A patient can receive genuinely negligent care and still lose the case if the same harm would likely have happened anyway. Causation, too, turns on expert evidence about what would have occurred with proper treatment.
Because both elements require supportive expert opinion, and because qualified experts are expensive and not always available, a great many complaints that feel like obvious malpractice cannot be turned into viable lawsuits. That is the single biggest reason so few claims succeed.
Will a Medical Malpractice Claim Punish the Doctor?
No, not really. It is important to keep in mind that civil lawsuits are primarily about financial compensation. Our justice system does recognize that lawsuits can also condemn negligent conduct, but at the end of the day a malpractice claim is about dollars and cents. For the vast majority of cases, the goal is to put the injured person in the best financial position possible, as though the negligent care had never happened. Courts almost never award punitive damages against a doctor or hospital, and even where they do, the award may not be covered by the physician’s indemnity association, which can make collecting it difficult.
A claim can certainly affect a physician’s reputation, and that is one reason these cases are so vigorously defended by the Canadian Medical Protective Association. But the professional consequences are narrower than most people assume. If a doctor loses at trial and a court makes a finding of negligence or malpractice, that finding must be reported to the College of Physicians and Surgeons of Ontario and is posted on the College’s public register. The launch of a lawsuit, and a settlement reached out of court, are not reported, and the great majority of cases that resolve do so by confidential settlement with no finding against anyone. A successful claim may, in rare cases, carry licensing consequences, and a physician sued in a hospital setting can face questions about their privileges. But a lawsuit will not leave the doctor out of pocket: their legal fees and any award paid to a successful patient are covered. There is a very effective system in place to defend and indemnify physicians.
So if your real objective is retribution, a lawsuit is not the right tool. If you want to hold a doctor to account for their conduct, the better route is a complaint to their regulator, the College of Physicians and Surgeons of Ontario.
How Long Do I Have to Start a Claim?
Generally, two years. Under Ontario’s Limitations Act, 2002, you usually have two years to start a lawsuit, but the clock does not necessarily run from the date of the treatment. It runs from when you knew, or reasonably ought to have known, that you were injured and that the injury was likely caused by substandard care. In medicine that date can be genuinely difficult to pin down, because problems often emerge slowly and a doctor may spend months or even years trying to fix a complication before anyone realizes negligence may be involved.
Two points matter especially. For children, the two-year clock does not start to run until they turn 18, which is why birth-injury claims can be brought many years after the birth. And there is an ultimate limitation period of fifteen years, which the courts enforce strictly regardless of when the problem was discovered. The timing rules are full of traps, and a meritorious claim can be lost simply because it was started too late. If you think you may have been harmed, do not wait to get advice.
How Much Does It Cost to Sue a Doctor or Hospital?
A lot. Medical malpractice lawyers generally work on contingency fee agreements that also cover the significant out-of-pocket cost of hiring expert witnesses, but make no mistake, these cases are expensive to run. They are very different from standard personal injury claims such as car accidents or slip and falls, which almost always resolve for some amount of money. Because of the concern about reputational harm, malpractice claims are heavily scrutinized by defence counsel, and the patient’s lawyer has to advance a well-supported, meritorious claim or face dismissal and no payment at all.
The hard consequence is that cases of relatively modest financial value are often bad risks for a lawyer to take on. I say this with real regret, because it means that those of us who specialize in this area must turn away claims that may well have merit but are simply not large enough to justify the time, expense, and risk involved. The elderly, patients with significant pre-existing conditions, and people who were not earning an income are among those who can find it hardest to retain a lawyer, because the likely cost of the case would exceed any realistic recovery.
How Much Is My Claim Worth?
It depends. Assuming you can get over the difficult hurdle of proving liability, there are broadly three categories of compensation: pain and suffering (general damages), lost income, and the cost of care.
General damages for pain and suffering are capped in Canada, though the cap is adjusted for inflation each year. As of the date of this article, the maximum is approximately $470,000, and it is reserved for the most catastrophic injuries. That cap applies to medical malpractice claims, though the separate statutory deductible that reduces pain-and-suffering awards in car accident cases does not. There is no cap on claims for lost income or cost of care, and in serious cases those are by far the largest part of the claim.
A lost-income claim arises where someone who was working can no longer do so because of the malpractice, or, where a working person dies, where their dependants relied on that income for support. A person who was not working at the time, perhaps because of age or a pre-existing disability, will generally not recover anything for lost income. The cost of care varies enormously. Most medical treatment in Ontario is covered by OHIP, but outpatient rehabilitation such as physiotherapy, occupational therapy, and psychological counselling is not, and over a lifetime those costs add up. The largest care claims arise where a person needs full-time attendant care, meaning help with the activities of daily living such as dressing, bathing, toileting, and feeding. Claims arising from a delayed diagnosis of stroke, cauda equina syndrome, or a traumatic birth injury often involve very large cost-of-care claims.
How Long Does a Claim Take?
Four to seven years, on average. Medical malpractice claims move more slowly than ordinary personal injury claims. A careful lawyer will usually not even issue a lawsuit until completing a preliminary investigation, which means collecting the medical records and consulting one or more experts to assess whether the care was substandard and whether it caused harm. That investigation alone often takes six to twelve months, depending on expert availability.
Once the lawsuit is started, it has to work its way through the court system. The rough statistics I give clients are that about a third of claims are eventually abandoned with no payment, a third settle, and a third go to trial, and of the cases that go to trial the doctor and hospital are generally favoured to win. Every case is different, but you want to be in the settlement group, and to get there you need a lawyer who is experienced and genuinely prepared to take your case to trial. Settlements usually do not come until close to trial, which is why these cases can take years to resolve. Even a win at trial is frequently appealed by the defence, which can add another year or more. The length of time it takes a seriously injured person to receive the compensation they are owed is, frankly, outrageous. Too many victims of malpractice have to live with both a catastrophic disability and financial hardship while they wait.
Do Lawsuits Improve Patient Safety?
Some do, some do not. It really depends on the case. A great many claims arise from simple human error. Hospitals do a great deal to build safeguards against those errors, and they still happen, and a single lawsuit is not likely to prevent the next one. But some claims expose systemic problems in a hospital that lead to real changes in policy or procedure, and a claim against an individual physician can prompt them to improve their knowledge or skill in a particular area. So yes, I do believe lawsuits can improve patient safety, but I would not call them the best way to do it, and I would never bring a claim for that reason alone.
If your primary concern is patient safety rather than compensation, the better route is a complaint to the hospital, where applicable, or to the relevant regulator, such as the College of Physicians and Surgeons of Ontario or the College of Nurses of Ontario. Protecting the public from harm is precisely what those bodies exist to do.
Conclusion
Medical malpractice claims are extremely difficult to prosecute successfully. That said, there are many cases where negligence or a medical error has genuinely harmed a patient and there is a real prospect of recovering fair compensation. 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 a claim makes sense for you. Contact us to arrange a consultation.
