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Medical malpractice can happen in two ways:
1. If your doctor did not have your informed consent to perform a medical procedure that caused you an injury;
2. If your doctor was negligent, and the negligence caused your injury.
Informed Consent to Medical Treatment:
Everyone has the legal right to decide what can be done with his or her own body. Because of this legal right, your doctor needs your permission, (the legal term is consent) before he or she can treat you.
What is Informed Consent?
You can only give proper consent if you are provided with all the information that is necessary to make a decision about the proposed medical treatment. It is not acceptable for your doctor to simply ask if he or she has your permission to perform a medical procedure. Doctor: “Can I take your kidney out?”
Patient: “Umm okay.”
You must be able to understand the reasonable and foreseeable consequences of giving permission (consent), or not giving permission, for the medical procedure.
In Canada, it is generally accepted that in order to provide proper permission for medical treatment your doctor must explain to you:
• The nature of the proposed medical procedure;
• The reasonable alternatives to the proposed medical procedure; and
• The relevant risks, benefits, and uncertainties related to each alternative.
Your permission or consent may be expressed in words or implied by your actions. For example, when you are undergoing a surgical procedure your doctor will usually get you to sign a consent form as part of the consent process to confirm your permission to perform the medical procedure.
Any medical procedure that is performed without proper informed consent is considered to be an assault. The doctor who performed the medical procedure is responsible for any injury suffered by the patient as a result of the medical procedure.
Unfortunately, it is very difficult to win medical malpractice cases involving allegations of informed consent. Often the question of whether the risks were properly explained to the patient boils down to the doctor’s word against the patient.
In most of the reported medical malpractice cases across Canada, judges and juries tend to favour the doctors word, unless there is clear evidence to support the patient’s version of events.
Therefore, it is important to document the consent process by making notes of any discussions that you have with your doctor before you undergo a medical procedure. Particularly any discussion you have with your doctor about the risks, benefits and alternatives of the proposed medical procedure.
What is Negligence?
People are not expected to be perfect. Just because someone makes a mistake does not necessarily mean the mistake was negligence. But sometimes a mistake is so obvious it is considered to be negligent.
Doctors and nurses are expected to use reasonable care and judgment when treating patients. Doctors and nurses are expected to meet the standard of care expected of a reasonably competent doctor or nurse. If they fail to meet the standard of care, that’s negligence.
What Do You Have to Prove to Win Your Case?
There are four things that you have to prove in order to win your medical malpractice case:
1. Standard of Care:
You will need expert evidence to show what standard of care is expected of a reasonably competent doctor. Doctors in the same specialty as the negligent doctor must be willing to testify that the conduct of the doctor fell below accepted standards. Doctors are not expected to be perfect. But they are expected to be reasonably competent.
2. Breach of the Standard:
You will need expert evidence to prove that the doctor did not meet the standard expected of a reasonably competent doctor.
In other words, did they do something that they should not have done, or did they fail to do something that they should have done?
Making a simple mistake or getting a bad result is not enough – you must prove that it was a significant error which directly led to your injury.
3. Causation:
Not only must you prove that the doctor breached the standard of care; you must also prove that the breach actually caused your injury.
It is possible that a doctor can be negligent (breach the standard of care), but the negligence isn’t what caused the injury
For example, failing to wear surgical gloves during an operation is a breach of the standard of a competent doctor. But it is not likely to have caused you to suffer a stroke during the operation.
On the other hand, failing to wear gloves may very well cause a surgical wound to become infected, leading to serious injury or death.
4. Damages:
Finally, you have to prove what the financial consequences of the injury has been so that the court can award damages for pain and suffering, and any income loss or medical expenses as a result of your injury.
You will need experts like a physical medicine specialist to prove the extent of your injuries; a vocational expert to establish how your injuries affect your ability to work; an actuarial or economic expert to calculate your past and future income loss and future pension loss.
Medical malpractice claims in Canada are complicated, expensive and risky. If you think you or a family member has been a victim of medical malpractice it is important that you contact an experienced Canadian medical malpractice lawyer to get some advice.
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