Doctors are respected professionals of utmost importance in any community.
This makes it even harder to undertake any kind of legal action against them. However, it does not mean that you can’t and that you are not entitled to seek compensation. In fact, you’d be amazed to learn that all you need is a specialized medical malpractice lawyer by your side.
Let's face it, everyone makes mistakes, including doctors. However, some errors are less forgivable than others, especially when they are the result of a medical standards violation and cause permanent physical harm. This is where medical liability claims become highly relevant.
First things first, do you qualify as a victim of a medical malpractice?
JuriGo can help you look into this by laying out the most critical principles of medical liability in Quebec & connecting you with a field specialized attorney.
Unveiling Medical Malpractices: Are you a victim?
Typically, most people associate medical errors with botched surgeries.
However, this legal area is much broader and covers a wide range of breaches of duty by healthcare professionals. Generally, medical errors refer to any action or omission by a healthcare professional that causes harm to the patient.
Whether it’s during diagnosis, surgery, treatment, or follow-up care – physicians have a duty of care towards their patients. Similarly, nurses are also bound by ethical and professional obligations, and their civil liability may be engaged if they fail to provide the necessary care or inform the competent physicians in a timely manner.
If you suspect a medical error, the hardest part is proving the fault, the harm suffered, and the causal link. These elements help build your case, JuriGo can help connect you with an attorney to alleviate this process. In Quebec, you must provide convincing evidence to support your claim. In the following we’ll briefly look at what’s involved in such a case.
How do you prove medical malpractice?
Alleging medical malpractice is one thing but proving it in court is another. In Quebec, medical liability follows the same principles as civil liability, but requires more specific proof that takes into account the standards of the medical field.
Needless to say, the proof can be all the more complex to make, since it requires an understanding of a highly specialized field like medicine.
1) Fault: the central element.
Proving a fault in the medical field can be a complex undertaking. Doctors are held to the standard of reasonable, prudent and diligent behavior. Therefore, it’s usually impossible to establish a fault when one fails to act in conformity with this standard.
Often, even when there is failure to act in accordance with professional and ethical guidelines demonstrating this level of fault requires an expert witness who’ll testify on the observed behavior and characterize it as falling short if that is the case from the standard of reasonable prudent and diligent behavior.
2) Seeing is believing: Proving the harm.
All losses suffered by the victim may be part of the alleged injury if they were caused by the doctor's fault. Lost wages, the cost of therapeutic equipment and prostheses, treatments and sometimes even psychological after-effects may fall into the category of injury.
3) When correlation does equal causation.
The fault and the injury must be causally linked! In other words, it must be the physician's fault that caused the injury. If the fault was only partially responsible for the damage, the physician may only be liable for partial compensation.
What is the burden of proof in a medical malpractice lawsuit? In other words what is the required level of proof in a lawsuit regarding medical malpractice?
Since this is a civil (not a criminal) action, the burden of proof is on a balance of probabilities. This means that you will have to prove that it is more likely than not that the doctor's mistake caused your injury.
An expert is essential to win a medical liability case because the dispute revolves around the doctor's failure to follow the rules of the trade, the medical principles are extremely complex, and it is essential to have an expert testify to give an opinion on the conformity of the accused doctor's intervention.
The role of your expert will be to enlighten the court on the standards of practice in the medical field.
What obligation is the doctor under while providing patient care?
First and foremost, it is important to remember that in Quebec law, the physician is bound by an obligation of means and not an obligation of result.
What does this mean? It means that he is not required to guarantee the success of a surgical procedure or a diagnosis, but rather that he is obliged to take all the means at his disposal to promote such an outcome.
The first obligation assumed by the physician is to ensure that you have given your free and informed consent before proceeding with an intervention. This means that a health professional has an obligation to inform you, but what information must be disclosed to a patient before an intervention?
A careful and diligent physician should make sure that all of the following information is communicated to the patient before proceeding with the procedure !
- The risks of having the procedure
- The risks of not having the procedure
- The expected benefits of treatment
- The possible medical alternatives
- The nature of the care provided
The physician must ensure that the patient understands the information provided before proceeding! Not only must the above list be disclosed to the patient, but a prudent and diligent physician must go beyond this simple disclosure to ensure that the patient understands the information provided in order to make a truly informed decision.
If a physician performs risky surgery without adequately informing the patient of the dangers involved, the professional may be held liable.
That said, when a failure to disclose risks is alleged, the physician may attempt to defend himself by alleging that even if the victim had known of the risks, he would still have accepted the procedure because of its necessity.
What kind of medical errors warrant compensation?
It's not just surgical errors that can warrant a lawsuit! While a surgeon's mistake during an operation is the most obvious scenario, medical liability extends beyond surgical errors.
As mentioned above, health professionals also have obligations to inform and follow up with their patients. A breach of these obligations can also justify a lawsuit against the offending physician!
Here are the main examples of situations that can lead to a medical lawsuit!
Misdiagnosis and error in prescribing medication
The physician's legal duty of care does not require him or her to guarantee the accuracy of the diagnosis, but he or she is required to take all reasonable steps that a prudent and diligent physician would have taken in the same circumstances to make a correct diagnosis and to prescribe appropriate medication.
With respect to misdiagnosis, recent court decisions have reiterated that the physician must recommend the necessary tests, take all appropriate steps available to him or her, including the data of modern science and the advice of peers, in order to make a correct diagnosis. If the physician fails to take such initiatives, he or she may be reproached for failing to respect the obligation of means.
Failure to comply with the obligation of medical follow-up
Once the treatment has been applied to the patient, the physician is not relieved of his or her obligations towards the patient, on the contrary. Health care professionals have an obligation to follow up on the patients they treat to ensure that the patient's condition is progressing appropriately.
For example, a physician who treats a patient with cancer not only has a duty of care to make the correct diagnosis and provide the appropriate treatment, but he or she also has a duty to monitor the patient's remission once the treatment is completed. Should the patient's condition deteriorate due to a lack of follow-up, the physician's liability may once again be engaged.
Failure to refer to a specialist and failure to recommend necessary tests
When a patient's condition is beyond the scope of a physician's competence, the physician is obliged to recommend further examinations and referral to specialists. Compliance with this obligation is obviously assessed on a case-by-case basis with reference to the conduct of a reasonable physician.
Lack of informed consent by the patient.
In medical law, the patient's mere agreement to receive care is not sufficient to form an adequate consent. Indeed, in order for the patient's consent to be given in a free and informed manner, the physician must adequately inform the patient of the risks incurred by the intervention and the expected benefits.
Moreover, this consent must be maintained throughout the medical intervention and must be reiterated if new facts arise. With respect to the risks disclosed, it is recognized that the physician is required to disclose all normal and probable risks, not all possible risks.
Unprofessional Intervention
This is a general breach where a physician's conduct causes harm and deviates from that which a prudent and diligent physician would have done in the same circumstances.
Breach of duty of confidentiality.
After the age of 14, no one can access the information in your medical record without your consent, not even your parents! Your right to privacy and confidentiality is protected by law, and a doctor who would release information without your consent is violating that same obligation.
You now realize that medical liability is about more than missed surgeries
A wide range of professional misconduct can form the basis of a civil liability claim, as long as the physician was actually at fault and you were harmed.
Hurry: Time is running out for your lawsuit!
The right to file a medical malpractice lawsuit does not last forever!
There are maximum time limits for filing a lawsuit to prevent a personal injury dispute from ending up in court decades after the event.
This is why the law provides that you have a 3-year time limit to file a personal injury lawsuit, which obviously applies to medical liability lawsuits and explains why you must act quickly to maximize your chances of being compensated.
When does the time limit start to run? The time limit does not begin to run on the day of the medical intervention, but rather on the day the injury first manifests itself. This nuance is explained by the fact that not all physical or psychological after-effects of an intervention will manifest themselves immediately after the intervention.
Explained differently, the prescription period for medical liability begins to run from the moment the victim becomes aware of the error of which he or she has been the victim. But what if you cannot file a lawsuit during this 3-year period?
Without a valid excuse, your right to recourse will be barred after the expiry of the 3-year period, unless you can prove that you were in fact unable to act. This impossibility may be physical and, to a lesser extent, psychological, but in either case, it is a difficult defense to allege.
It is best to consult a competent professional and a lawyer as soon as you suspect you have been the victim of medical malpractice in order to avoid exceeding the statute of limitations.
Who can file a medical liability lawsuit in Quebec?
Obviously, the patient himself or herself has a sufficient legal interest to bring a medical liability lawsuit. However, he or she is not the only person who can bring a medical liability lawsuit in order to obtain compensation. In fact, the patient's loved ones, if the patient is deceased, also have an interest in bringing such an action!
Do health care professionals defend themselves against liability claims? Health care professionals have professional liability insurance coverage that allows them to be represented by their insurer in the event of a medical liability claim.
Because health care professionals have such allies in their corner, winning your case is not a foregone conclusion, and you will need to team up with an experienced lawyer.
What will you get for medical malpractice compensation?
The purpose of a medical malpractice lawsuit is to compensate for an accidental injury, not to enrich the victim at the expense of the health care professional. Therefore, the compensation awarded should only be used to compensate the victim for the personal injury they suffered as a result of the medical malpractice.
The most common form of compensation awarded will be monetary compensation.
This compensation will be intended to cover financial losses and therapeutic costs, but it may also compensate for psychological suffering caused by the medical intervention, provided the victim can prove this.
Can the heirs claim compensation in the event of the victim's death? In the event that the medical error caused the victim's death, the victim's heirs can take legal action against the doctor to obtain compensation for funeral expenses, for the loss of economic support (if the victim was supporting his or her family), and for the suffering the victim experienced as a result of the error
Restitution in a medical malpractice action may not seek to enrich the plaintiff, but it is certainly effective in obtaining just compensation for the suffering experienced. It is in your best interest to explore this option thoroughly with a medical malpractice lawyer!
Let JuriGo help you find a medical liability lawyer!
The legal practice of medical malpractice requires in-depth knowledge of two specialized fields: medicine and law. Not just anyone can do it, especially if you hope to win your case! That's why you should hire a medical liability lawyer.
Many of JuriGo's partners throughout Quebec work in this field and can quickly give you the facts about the chances of success of your lawsuit, the compensation you can expect and the efforts required to bring the case to a successful conclusion.
Are you interested in such expertise? If so, fill out the form at the bottom of the page and JuriGo will put you in touch with a lawyer in your area, free of charge and without obligation!
Our services are free and allow you to find highly qualified medical liability lawyers. What are you waiting for? Get closer to the justice you deserve today.