July 27, 2018

Alex Sayn-Wittgenstein

After experiencing an incident with a doctor, health practitioner or hospital many people know something is amiss but they are not sure what questions they should be asking their lawyer beyond whether they have a medical malpractice claim. To help put these situations in context here are five questions and answers that provide important background information about medical malpractice claims.

1. What do I need to prove in order to succeed on a medical malpractice claim? Using the example of a doctor, you will need to establish that the doctor’s care for you fell below the standard of care expected of a reasonable doctor practicing in B.C. in the year in question (negligence). You will also need to establish that the doctor’s negligence caused your injuries (causation). Expert reports are normally required to establish negligence and causation. The mere fact that you suffered serious complications from a procedure is not enough to establish a claim – you need to be able to prove the complication was due to negligence.

2. Can I just sue the hospital and leave the doctor out of it? Most cases involving errors made in hospital involve care by both doctors and nurses. It is often difficult to determine early on whether the case was a doctor-only error, a nurse-only error or errors by both doctor and nurse. Unlike nurses, most doctors are not employees of the Health Authority operating the hospital. They simply have privileges at the hospital. Our courts have stated that Health Authorities are normally not responsible for the wrongdoing of doctors who are not their employees. Therefore, in many cases it is necessary to sue both the Health Authority and the doctor(s) involved in the care that is at issue.

3. Who pays if my claim is successful? Canadian medical doctors are defended by the Canadian Medical Protective Association (“CMPA”), an organization funded by annual fees from physicians and provincial government subsidies. The CMPA currently has billions of dollars in reserve funds. In B.C., Health Authorities (the operators of hospitals and many other health care facilities) and their employees are defended by the provincial government operated Health Care Protection Program. Other health care providers (e.g. chiropractors, dentists) are required to have in place liability insurance.

4. How much time do I have to sue? The starting point is that you usually must commence an action within 2 years of the negligent procedure. For children, the two year time period only starts to run once the child turns 19. The start of the two year limit can be delayed if you did not know, and could not reasonably have known, about the possibility that the doctor (or nurse) was negligent until a later date. As an example, assume a patient had surgery in October, 2011. The patient felt increasingly unwell after the surgery and, on September 6, 2012, an x-ray revealed that surgical sponges had been left in the patient’s abdominal cavity. The patient had no reason to suspect that the surgical team had failed to remove sponges prior to seeing the September, 2012 x-ray. The patient would likely have until September, 2014 to sue. However, the maximum time between treatment of an adult and commencing a lawsuit is 6 years for medical doctors, hospitals and hospital staff.

5. My doctor apologized to me. Does that mean she has admitted responsibility? No. There is law in British Columbia that specifically prohibits the use of an apology as an admission of liability.

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