In Ontario, medical malpractice happens when a healthcare practitioner fails to meet the standard of care expected of them based on their training, experience, and other factors, causing harm or injury to the patient. To succeed in a negligence lawsuit against your healthcare practitioner, you must establish all the following:
Standard of Care: The standard of care is objective and is based on what a reasonably competent practitioner in the same field would do in similar circumstances. So, for instance, an obstetrician practicing at a prestigious teaching hospital in a large urban centre would probably be held to a higher standard than could reasonably be expected of a gynecologist in a remote area faced with an emergency C-section. However, both are medical specialists who should share most of the required medical training, knowledge, and skill to perform the procedure.
Breach of the Standard of Care: After you have determined the standard of care that applies to your case, you must demonstrate that the responsible party breached this standard. If the objectively reasonable standard of care is met, there is no negligence regardless of any diagnostic errors, unfortunate choices, or surgical mistakes, which “could have happened to anyone.” In the C-section example, if the gynecological surgeon injured the baby by cutting too deeply into the mother’s uterus, there could be grounds to start a lawsuit.
Causation: Having identified a potential breach of the standard of care, you must also demonstrate that this negligence directly caused the harm you suffered, or that it was a material contributing cause and your outcome would have been better but for the negligent conduct. If a properly performed C-section incision would or could have meant that the injured baby did not suffer the harm, causation can be demonstrated at trial.
Potential Breaches
Some of the most common types of medical negligence happen when the standard of care is breached in the following areas:
Failure to receive Informed Consent: As discussed in the sidebar urological example, healthcare practitioners in Ontario are required to obtain informed consent from their patients before performing medical procedures or treatments. This can include everyday health matters like administering flu shots, prescribing medications, or giving a therapeutic massage. As a patient, you usually will not be aware of the full scope of treatment options, risks/benefits and so on – you rely upon your providers as experts to guide you appropriately. Situations when you might have made a different choice that was not presented to you often support successful medical negligence claims.
Failure to Diagnose or Misdiagnosis: As an expert in their fields, your healthcare practitioners are expected to exercise clinical judgement based on their knowledge, appropriate investigations, and research, to provide you with a medically sound diagnosis. Failure to diagnose a condition correctly or in a timely manner, or failure to revise a diagnosis based on new evidence often establishes the basis for a successful medical negligence lawsuit.
Medication Errors: Your family physician and all prescribing specialists are expected to understand the impact of the medications they prescribe, including the interactions that can happen with your other prescriptions before adding a new drug to your existing medication regime. Obviously, as more and more medications hit the shelves, the risk of mis- or overprescribing, or intermingling potentially dangerous drugs in your system is always present and ever-increasing. When in doubt, your physician should consult a pharmacist, or perform the research required to ensure you are reasonably safe. Administering an inappropriate or incorrect medication, providing the incorrect dosage, or failing to monitor your reaction to prescribed medication can be grounds for a medical negligence claim, which might also implicate the responsible pharmacist.
Surgical Errors: Surgical procedures carry inherent risks, many of which are understood as acceptable given the potential benefits or lack of non-surgical options. And, although we can expect our surgeons to perform to a high professional standard, it would not fair to demand perfection. However, avoidable errors made during surgery can lead to a finding of negligence. Examples can include: operating with substandard technical skill or while impaired (by drugs, alcohol, fatigue, medical or psychological conditions…), performing the wrong procedure, operating on the wrong body part, failing to identify sites of internal bleeding prior to closing, leaving surgical instruments inside a patient, and providing inadequate post-operative care.
Negligent Postoperative Care: After surgery or medical treatment, healthcare providers must provide appropriate ongoing care for as long as is required to ensure your safety and optimum recovery. Far too often, patients suffer from post-operative negligence including: premature discharge or discharge without adequate instructions, failure to perform appropriate post-procedural assessments or investigations, failure to identify and treat complications, ongoing symptoms, or concerns, and inadequate wound care.
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