What Is Medical Negligence?
Medical negligence may arise where a healthcare professional fails to exercise the degree of skill and care reasonably expected from a practitioner in that field and the failure causes harm to the patient.
Whether treatment was negligent depends on the circumstances of the particular case. Medicine involves professional judgment, risk and uncertainty, and an unsuccessful treatment or poor outcome is not automatically evidence of negligence.
Complications can occur even where appropriate medical care was provided. The legal enquiry focuses on whether the treatment fell below the standard reasonably expected and whether that failure caused the patient's harm.
Examples of Potential Medical Negligence
Medical negligence can arise in many different clinical circumstances. Depending on the facts, potential claims may involve:
Misdiagnosis or Delayed Diagnosis
A failure to investigate symptoms appropriately or a negligent delay in diagnosing a condition may cause a patient to lose valuable treatment time or suffer additional harm.
Surgical Errors
Claims may arise from negligent acts or omissions during surgery, provided the required elements of negligence and causation can be established.
Birth Injuries
Negligent monitoring, delayed intervention or other failures during pregnancy, labour or delivery may in some circumstances cause serious injury to a mother or child.
Medication Errors
Incorrect medication, inappropriate dosage or failures relating to the administration or monitoring of medication may result in avoidable harm.
Informed Consent
Medical treatment may raise legal issues where a patient was not appropriately informed about material risks, alternatives or the nature of the proposed treatment.
Inadequate Follow-Up or Aftercare
A failure to monitor a patient's condition, respond to complications or provide appropriate follow-up care may form part of a negligence claim.
What Must Be Proven?
Medical negligence litigation requires a careful assessment of both the medical treatment and the legal requirements for liability.
A Duty of Care
The healthcare provider must have owed the patient a legal duty in relation to the treatment or care provided.
Negligent Treatment
It must be shown that the healthcare provider failed to exercise the reasonable professional skill and care expected in the circumstances.
Causation
There must be a sufficient causal connection between the negligent treatment and the injury or additional harm suffered by the patient.
Damages
The claimant must establish the legally recoverable losses resulting from the negligent treatment.
Even where treatment was negligent, it must still be established that the negligence caused or materially contributed to the harm for which compensation is sought. This is often one of the most technically complex issues in a medical negligence claim.
Who Can Be Held Liable?
The appropriate defendant depends on where the treatment was provided, who was responsible for the alleged negligence and the legal relationship between the parties.
Doctors & Specialists
A medical practitioner may face a claim where negligent treatment falling below the required professional standard causes injury.
Nurses & Other Healthcare Professionals
Negligent monitoring, treatment, medication administration or other failures by healthcare staff may form part of a claim.
Hospitals & Clinics
Depending on the circumstances, liability may arise in relation to the conduct of staff, systems, facilities or other aspects of the care provided.
Provincial Health Authorities
Claims arising from negligent treatment at public hospitals or clinics may be instituted against the appropriate government authority, subject to additional statutory procedural requirements.
Why Is Expert Medical Evidence Important?
Medical negligence disputes frequently involve questions that cannot be determined from ordinary experience alone. The court may need assistance in understanding the appropriate standard of care, what treatment should reasonably have been provided, and whether a particular failure caused the patient's injury.
Independent medical experts therefore play an important role in evaluating the records and expressing opinions within their fields of expertise.
A suspicion that medical treatment was negligent is not the same as being able to prove a medical negligence claim. The medical records and appropriate expert evidence are often central to establishing both negligence and causation.
What Compensation Can Be Claimed?
The damages recoverable depend on the injuries caused by the negligence and the effect those injuries have had, or are expected to have, on the claimant's life.
Past & Future Medical Expenses
Qualifying costs of treatment already incurred and reasonably anticipated future medical treatment may form part of the damages claim.
Loss of Earnings
Where the injury affects the claimant's ability to work, past loss of earnings and future loss of earning capacity may be relevant.
Pain, Suffering & Loss of Amenities
Depending on the nature and severity of the injuries, compensation may include appropriate general damages.
Care & Rehabilitation
Serious injuries may create future needs for therapy, rehabilitation, assistance, equipment or long-term care.
What If Medical Negligence Results in Death?
Where negligent medical treatment causes a patient's death, additional claims may arise depending on the circumstances and the relationship between the deceased and the persons affected.
Qualifying dependants may, for example, have a claim for loss of financial support where the deceased owed them a legal duty of support.
The death of a patient following medical treatment does not itself establish negligence. The treatment, cause of death and relationship between any negligent conduct and the death must be properly investigated.
The Medical Negligence Claim Process
These claims usually require substantial investigation before litigation can responsibly be pursued.
Initial Legal Assessment
The circumstances of the treatment, alleged negligence, resulting injury and potential prescription issues are considered.
Obtain Medical Records
Relevant hospital, clinical, diagnostic and treatment records are gathered so that the care provided can be properly investigated.
Obtain Expert Medical Opinion
Appropriate independent experts may be asked to assess the treatment, professional standard