Medical Malpractice Lawsuits: What to Expect

Medical Malpractice Can Happen

As Canadians, we share faith in our exceptional healthcare system, placing our trust in the competence, professionalism, and ethical conduct of our physicians and healthcare practitioners.

 
Regrettably, despite this trust, it is crucial to acknowledge that no guarantees can be made regarding the healthcare we receive. Mishaps can occur, leading to either failed or partially successful surgeries, post-operative trauma, complications, or unintended harm. In many instances, these adverse events transpire despite the meticulous preparation, attention to detail, and informed decisions made by our physicians, nurses, and healthcare staff.

However, there are also occasions when these injuries or suboptimal outcomes could have been prevented, attributed to a form of negligence known as medical malpractice. This encompasses acts, omissions, decisions, policies, and practices of medical professionals, including doctors, nurses, and hospital administrators, which should never have taken place and can result in avoidable harm to patients.

When this happens, it is a smart idea to contact an experienced personal injury law firm like Campisi that can evaluate your case. At Campisi LLP, we take the time to explain a reasonable range of damages you could recover before you make the best decision for you and your family.

How Campisi Can Help

The purpose of this article is to inform you about what you can expect from Campisi, should it be determined that you have a worthwhile case. 

When you have been seriously injured, your most important responsibility is to your own recovery and the well-being of your family. You must be able to focus on your rehabilitation. Legal matters should be handled efficiently and with the least impact possible on your daily routine by your lawyer and their team. 

Here’s what we’ll do for you: 

Gather the Evidence: We will order and organize your hospital records, doctor- and specialist medical files, prescription history and other information that will be used to develop your claim. You can assist us by making a list of all healthcare providers and rehabilitation professionals you have seen for the past several years and your scheduled appointments or referrals, any pharmacies you use, contact information for your employer and other information we can help you identify. More importantly, you should carefully and accurately explain all of your ongoing symptoms and functional limitations to your healthcare practitioners. They need to understand the full picture for your treatment. This type of thorough reporting by you can also strengthen the medical evidence we present in your lawsuit. 

Prepare your Statement of Claim: Once we have enough information to advance a compelling argument, we will draft the Statement of Claim for you to review. The claim will identify all the parties – you will be the plaintiff, and anyone responsible for your injuries will be named as the defendant/s. It will also: set out the circumstances leading to your injuries in detail; specify the allegations of negligence; and describe the losses you have suffered and resulting damages you are claiming, which could include amounts for:

• Pain and suffering;
• Income lost since the incident and out-of-pocket expenses;
• Future medical and rehabilitative treatment;
• Future attendant care;
• Future income loss or loss of earning potential;
• housekeeping and caregiving assistance.

The Statement of Claim will be issued and filed at the Superior Court of Justice, which starts the lawsuit against the named defendant/s. We arrange for the Claim to be personally served upon each defendant.

Advance your lawsuit: Once the defendants have been served, it can take several years for your lawsuit to resolve, either through a negotiated settlement or at trial. Because medical malpractice claims are so intricate and the stakes are so high for the defendants and the Ontario Medical Association (who safeguard the integrity of the medical profession), these lawsuits only settle when it is clear the alleged negligence did happen, it caused the injuries AND the proven damages have been reasonably assessed.  If any of these elements is in dispute, the OMA will support ongoing litigation for as long as necessary. You must be patient, allowing the claim to develop over time until it is strong enough to argue in court or a fair settlement can be reached. Know that we will be devoting our resources and expertise to your lawsuit and will keep you informed of our progress. Our job is to build the case and advise you of your options. You make all the important decisions. 

As the lawsuit proceeds, we will continue to gather evidence in support of our arguments to prove the negligence and describe the nature and extent of your losses. This can include:

Attend Examinations for Discovery: Discoveries are a crucial stage of the lawsuit and represent the best opportunity to present your story to the defendants. It also gives both sides the opportunity to test evidence, evaluate credibility and assess how well each of you will do in front of a judge and jury. Your job is to keep track of the details of your experience as best as you can, so that you can answer the other lawyer’s questions fully and accurately. Do not worry, we will make sure you are fully prepared for your examination, so that you can concentrate on your return to health. 

Seek expert medical opinions: One of the major reasons medical negligence lawsuits move towards trial slowly is the reality that two experts can reasonably disagree - about a diagnosis, treatment options, long-term consequences and prognosis, the likely cause or material contributing factors, the appropriate standard of care and if that standard was breached or not, whether the breach resulted in the losses alleged, the value of the damages to compensate those losses, and on and on. In a high-value claim (for instance, when the plaintiff will never be capable of returning to work or needs daily attendant care) or one in which the issues are particularly complex, both sides will enlist the expertise of several specialists to support their client’s case. We work with leading medical experts to assess the standard of care, causation, and the extent of your damages. Their opinions are vital to the success of the lawsuit. 

In some cases, you will be expected to attend medical examinations. This only happens when it is necessary for your case. For example, we might arrange an In-Home Occupational Therapy assessment to establish your current health and level of daily functioning. If the claim looks like it is heading for trial, the defendant’s lawyer will usually arrange for assessments to compare the opinion of their expert with the evidence they have received. Although this sounds unfair and can be intimidating, we will make sure you know about these assessments well in advance and will prepare you so that you know what to expect. Also, we can refuse assessment requests that seem unreasonable or unnecessary. All you have to do is participate in good faith to the best of your abilities and provide accurate answers to the assessor’s questions. 

Resolve the lawsuit - Negotiation or Trial: Once the evidence is gathered on both sides, the parties will have a good idea about the claim’s trajectory. Most negligence lawsuits, including most medical malpractice claims, DO NOT proceed to trial. Trials are expensive and time-consuming. No matter how confidently the plaintiff or defendant assesses their case, there is no such thing as certain victory at trial. Juries are made up of individuals with diverse beliefs, attitudes, and perspectives. One member might accept the plaintiff’s evidence that they cannot return to work, while another might believe we should all just “tough it out.” The defendant might be a charming, humble, and well-spoken physician. Alternately, they might come across as arrogant and selfish. Sometimes, the way the evidence is presented can be as important as the facts. Fortunately, you do not have to worry about these issues until much later, and even then, you will know and understand the strengths and weaknesses of your case so that you can make smart choices about how to move forward. 

Usually, there will be several opportunities to seek a just resolution of the lawsuit through negotiation. Although you have sued an individual or individuals, your damages will be paid by their professional liability insurers, which are responsible for the litigation behind the scenes. Insurance companies and professional associations have virtually inexhaustible resources to fund the lawsuit, and negotiating with them can be frustrating. In many cases, they take a “wait and see” approach, forcing you to suffer without necessary healthcare and financial support until they think you will resolve your claim to their advantage. 

At Campisi LLP, we have extensive expertise in insurance law, and will not allow you to be bullied, harassed, or intimidated into accepting an unfairly low settlement. Armed with strong medical evidence and a thorough understanding of the law and your case, we will negotiate resolutely with the responsible parties and their insurance companies to seek fair compensation for your losses. If necessary, we are prepared to argue your case in the Superior Court of Justice. You can be confident in our skill and preparation as trial lawyers, based on our proven track record of success.