Medical Malpractice Litigation

February 2014

Disclaimer: This article is written for informational purposes only and should not be relied upon as legal advice. In each case, specific legal advice should be obtained which will be responsive to the circumstances of the individual requiring it (Copyright and Disclosure).

A lawsuit against a medical professional is generally a complex and risky matter. Doctors, in particular, have unlimited funds and resources to defend themselves and their reputations. Any consideration to sue a doctor must be canvassed thoroughly with your counsel. The counsel you choose is very important unless you want to waste your time and money prosecuting a poorly prepared or presented case.

As a client, you must be prepared to see the issue through, including a trial if necessary, and agree to have your case prepared properly from the beginning. The initial retainer will involve your counsel obtaining an opinion on the viability of your case. This will involve getting a detailed medical history and all relevant medical records, including your family doctor’s notes and records, consultations, hospital and operative records. These records will then be reviewed in detail to determine that all of the records have been produced and to identify possible medical-legal issues.

The records will then have to be made available to a medical expert or, in some cases, to several medical experts, to comment on consent to treatment issues, issues of substandard care, misdiagnosis, and causation. These opinions should be obtained, if possible, before proceeding with an action against a doctor and/or a hospital. Without such opinions supporting your case, in most cases, your claim will fail and you could incur significant costs. In some medical legal cases, these preliminary opinions can cost in excess of $5,000.00. These are costs that will have to be incurred if you are serious about pursuing an action against a doctor or hospital. The counsel you choose should have an understanding of medical-legal issues and an ability to retain the necessary experts to establish both liability and to prove damages. Remember, not every poor medical result is a result of malpractice.

Recent information from a report of the CMPA (Canadian Medical Protective Association) would suggest that there is more of a willingness on their part to settle meritorious cases. Presently, about 30% of all new cases settle. However, settlement will only be achieved if the CMPA and their counsel are satisfied that your counsel is prepared to prove his case at trial. In fact, 95% of Plaintiff successes are achieved by settlement. In those cases the Defendants took to trial in 1997, only one in five was successful (ie. resulting in a judgment for the Patient). The CMPA reports that for every case that goes to trial, they invest an average of $100,000.00 in disbursements. While most Plaintiffs don’t have the resources to match these expenditures, it is important to make sure your counsel has the background and expertise to properly represent you.

Deciding to proceed with medical-legal litigation should be taken very seriously and not without extensive consultation. Often, you will have to put aside your anger with the medical professional to make cost-benefit analysis of not only the merits of your case but the quantum of damages that could be recovered if successful. A qualified counsel should discuss this with you very early in your legal relationship and perhaps before he or she is retained. You should always ask about your downside. A qualified counsel will understand this and often provide their initial advice to you and not charge you a fee.

In most cases, counsel who do this work will require a monetary retainer. This should be discussed at the first meeting with the lawyer you consult. This retainer is used to cover some of the costs involved in getting the medical records and a preliminary opinion.

Finally, it is important that you be forthright with your counsel. What you tell him or her is privileged and thus confidential. Both your lawyer and experts must have all the facts in order to provide an opinion that will withstand the scrutiny of the defence and be accepted by the court.

Should you need to speak to a lawyer about a professional malpractice issue, please contact John Makins by e-mail, or by phone at (519) 672-9330. If corresponding by e-mail be sure to include your name, your telephone number, and a brief message.

Author

John has 37 years of experience representing clients in personal injury, insurance and medical malpractice litigation. He has appeared at all levels of Court in Ontario and has instructed and lectured on various civil litigation issues at Fanshawe College, the Bar Admission course, Western University Law School and various continuing education courses. John was certified as a specialist in Civil Litigation by the Law Society of Upper Canada between 1991 and 2010. More →