Halifax Medical Malpractice Lawyer Blog

Many people know a lawyer who handles the routine legal matters that most families have to deal with from time to time; buying and selling a house, preparing a will, dealing with speeding tickets, maybe even routine personal injury claims.

So when you or a family member has been injured by a doctor or a hospital your family lawyer is probably the first person you think of to turn to for advice.

But is your family lawyer the right person for the job? Maybe, maybe not. Medical malpractice is a very specialized area of the law.

What to Look For

While it is not necessary for a medical malpractice lawyer to have a medical degree, it is helpful for your medical malpractice lawyer to have a familiarity with various medical specialties and knowledge of human anatomy.

You want your medical lawyer to be familiar with the defence lawyers that are going to be involved in defending your malpractice claim. You also want your lawyer to have experience in handling complicated medical malpractice cases.

Ask your family lawyer if he or she handles medical malpractice cases on a regular basis. Dealing with personal injury cases, or car accident claims does not necessarily provide the kind of experience you will require in order to successfully prosecute a medical malpractice claim.

Frequently I am contacted by medical malpractice victims or their family members who want to settle out of court. Sometimes the lawyers file medical malpractice claims in the hopes that the doctor’s lawyers will settle quickly in order to avoid the time and expense of a trial. That type of strategy will fail miserably in a medical malpractice case. Why? Simply because most doctors in Canada are defended by the Canadian Medical Protective Association (CMPA). The CMPA is a non-profit defence fund whose sole purpose is to “vigorously defend” any and all malpractice claims brought against doctors in Canada.

Medical malpractice claims rarely settle and when they do it is usually just shortly before trial and after the plaintiff has spent tens of thousands of dollars for experts.

Just remember, your family lawyer may be a great lawyer but you should think long and hard about whether or not you want to him or her to handle your medical malpractice case. Ask a lot of questions so you can make an informed decision.

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Continuing Treatment

Continuing treatment is a term that lawyers use to describe the length of time that you have continued to receive treatment from your doctor. In many cases, after a patient receives negligent treatment that causes an injury they continue to see their doctor or be treated in the hospital for the effects of the negligence medical care. Why is this important?

Statute of Limitations

Every province has a “Statute of Limitations” which is a time limit for filing certain kinds of claims. Generally, the time that you have to file a medical malpractice claim starts from the date the malpractice occurred.

Time Limit May Be Extended

However, the court may decide that the time to file your medical practice claim started to run, not from the date of the original malpractice, but from the last date that you received treatment from your doctor for the medical condition or complaint that was caused by the medical malpractice.

For example, if a surgeon perforates your bowel during surgery on January 1 and you suffer complications and have to undergo another surgical procedure on March 1 the court may consider that the time limit for filing a claim started to run not on January 1 but on March 1 because you were receiving continuing treatment for the medical problem caused by the negligence.

Claim May Be Barred

Once the statute of limitation runs out your right to file a medical malpractice can be barred forever. That is why it is very important for your medical malpractice lawyer to investigate the specifics timing of all of your doctor or hospital visits. This type of detailed investigation will help establish whether there was “continuing treatment” that may extend the time limit of filing your medical malpractice claim.

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The Ontario Court of Appeal recently released its decision in Rowlands v. Wright allowing an appeal by a surgeon who had been found liable for medical malpractice at trail.

Dr. Wright performed laparoscopic gallbladder surgery on Ms. Rowlands to remove her gallbladder. Dr. Wright cut the patient’s common bile duct mistakenly believing it was the cystic duct. Ms. Rowlands brought a medical malpractice claim seeking compensation from Dr. Wright and was successful at trial.

In determining whether Dr. Wright had met the standard of care required of a reasonably competent surgeon the trial judge stated:

“...a finder of fact may use common sense in assessing the surgeon’s conduct as he followed the standard medical practice described by the experts.”

The trial judge determined that, as a matter of common sense, a doctor should make sure they are aware of what they are cutting when surgery is performed.

Standard of Care is is not Common Sense

The Court of Appeal ruled that expert’s evidence at the trial determined that the standard of care required a surgeon to obtain a “critical view” of the area being operated on. It is not necessary for the surgeon to be certain exactly what organ they are cutting.

As a result, the Court of Appeal dismissed the finding of liability against the defendant and a new trial was ordered.

I have clients come to see me who are certain what happened to them is the result of medical malpractice. Sometimes when I hear their stories it seems to me that, based on common sense, the doctor must have done something wrong.

However, in order to win a medical malpractice claim, the plaintiff must establish, on the balance of probabilities, what the standard of care required of the doctor actually was, that the doctor breached the standard of care, and that the breach is what caused the plaintiff’s injury.

I have had many cases where independent neutral experts have told me that, despite what seems to be “common sense” the standard of care was not breached and therefore there was no medical malpractice. This case simply reinforces the importance of getting an appropriate expert opinion early on in the preparation of a medical malpractice claim.

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