1. What should I expect at my first meeting?
You will meet with a lawyer at the first interview. Before we can discuss the medical issues and legal procedure, we need to have a general understanding of what occurred. Apart from background information (birth date, marital status, employment, medical history), we will need to know the following:
a. chronology of what occurred
b. who you saw and where
c.
what was done
d. when
At
this point, we will explain the legal issues involved (standard of
care, causation, damages and limitation period) and how we investigate
your case. Additionally, we will provide you with information dealing
with legal fees, and expenses.
2. Will you tell me if I have a case?
Depending on the amount of information you provide, we will be able to recommend whether your case is worth further investigation. Our recommendation is based upon several factors including:
a.
when the medical events occurred
b.
potential amount of damages
c. the financial costs involved
d. type of injury
3. What are the alternative options?
If the medical issue involves a doctor; then, a complaint can be directed to the
4. Would I receive compensation from the association?
No. The College or association investigates the complaint and determines if disciplinary action should be taken. The doctor or nurse or other health practitioner would have an opportunity to respond to the complaint. This response is also sent to you for any additional comments.
In
some circumstances, the investigating body will retain an expert who
would review the medical events and provide an opinion. An expert is
someone with similar professional experience as the individual in the
complaint. The purpose of the expert is to assist the association in
their investigation of the complaint. You will be advised of the investigating body’s decision.
5. If I want to sue and my case is worthwhile; then, what happens?
We would review the financial aspects of the investigation again. It is very important that you have sufficient financial information in order to make this decision. Effectively you are investing money in order to determine if you have a case. This money (retainer) is not refundable in the event the investigation does not support the case.
Retainers create the lawyer-client relationship. These monies are used to finance the investigation which includes:
a. obtaining copies of clinical and hospital records
b. in some instances, pay for court fees
e.g. the statement of claim
c. obtaining medical opinions from experts
6. Is the retainer the only money I pay?
No.
7. Does the retainer cover legal fees?
No.
8. What initial steps should I take?
Very often, the conditions that existed at the moment of your or your child's injury will be lost if not preserved either by video, photography or retention of involved equipment. Do whatever you can to preserve the evidence. As well, take photos of your or your child's injuries, bruises and cuts. They may provide valuable information for your lawyer later on about just how you were injured.
9. What opinions do you expect from an expert?
In a medical malpractice case against a doctor, we must prove the doctor did not provide the appropriate care and treatment (standard of care). For example, if it is standard for a doctor to order blood tests when a patient has specific symptoms and the doctor does not do this; then, our expert may say the doctor did not meet the appropriate standard of care.
The other primary question that must be established is- did the lack of appropriate care or treatment cause and/or contribute to the patient’s condition. For example, if the same patient develops a severe infection leading to a brain injury and the blood tests would have detected the infection and allowed early treatment; then, our expert may say the doctor’s inaction or failure caused and/or contributed to the ultimate brain injury.
These
are simplified definitions of Standard of Care and Causation. More
often than not, the medical investigation with respect to “causation”
is very complex and time consuming.
10. How long does it take to get opinions?
Generally,
once we order the clinical and hospital records, we don’t receive them
for about 3-5 weeks. We review these records in order to determine the
following:
a.
is the information the same or different from the client’s
chronology?
b.
Are we able to identify the primary targets in the lawsuit?
c. Are the medical issues the same or
different from the ones
initially discussed?
d. What
experts do we need?
The above review takes about 1 week depending on the size of the records.
Next, we contact potential experts and determine if he or she can assist us. Once an expert has agreed to assist, the records are sent. Depending upon the type of specialist, this process of retaining an expert can take several weeks.
Once the records are in the hands of the “expert”, we likely do not receive an opinion or comments for at least 4-8 weeks.
In complex cases, this entire process can last as long as 6 months or more.
11. Do I have sufficient time for this investigation?
There are deadlines for starting law suits against doctors, nurses, hospitals and other health practitioners. These are called: “limitation periods”.
For
example- the limitation period for hospitals and nurses is 2 years from
the date of occurrence. With doctors, if the medical event occurred
after
There
are exceptions to the above (children or persons with mental
disabilities) and in some instances, the Courts have interpreted the
time frame differently.
12. Do these “experts” know who I am suing? Don’t doctors help each other?
When we contact the potential “expert”, we give the names of the potential targets. An “expert” will not give us an opinion in cases where the “target” is a friend, social contact, fellow worker or there is the perception of a conflict.
Many
doctors are prepared to assist in these types of cases. It is important
that we retain someone who has experience, knowledgeable, and unbiased.
13. Will I have trouble getting medical care after I sue?
If one of your treating doctors is the target of a law suit; then, we expect the doctor will suggest you obtain treatment elsewhere. The doctor will perceive the law suit as your lack of confidence in him or her.
Treatment at a hospital should continue unless the treating doctor is involved in the law suit.
14. If the experts support my case; then, what happens?
The expert opinions must be supportive on both issues of standard of care and causation. When this occurs, we would arrange a meeting and provide our recommendations to either start the law suit or continue it.
The doctor or hospital/nurse would be informed of the law suit and a defence lawyer becomes involved. This starts the litigation process and continues until either a settlement, judgment or release is obtained.
There
are various legal steps that occur during the litigation process which
will be reviewed with you at specific points in time.
15. How long will the entire process take?
Again depending upon the complexity of the case, the various legal steps leading up to a trial may take several months or years. On average, this process takes 2-4 years.
It
is extremely important that we take time to ensure that we have all of
the necessary information, and opinions prior to proceeding to trial.
16. What happens if I die or change my mind?
Firstly, the action can continue on behalf of your estate or other family members who were affected by the medical injury. Whether it is financially realistic to continue would be discussed with the family or estate representative.
You have the option of changing your mind through out the process. The legal expenses incurred, the time spent and other factors would be discussed.
Similarly, we may advise you not to proceed further or discontinue the law suit against a particular party. We continue to evaluate the case during the litigation process. A new report, condition or opinion may affect the outcome of the law suit.
17. Why is it taking so long for my case to resolve?
A question all lawyers have to deal with from the first client meeting until the end of the case is how long will this take? There is no easy answer, but you can evaluate whether it is taking too long but considering these factors:
Do you have a prognosis?
How busy is your lawyer?
Does your lawyer have a plan
Administrative or Court delays
Legitimate defence requests
There are many factors that go into delays
in getting your case resolved. These are just a few. If you have questions,
speak to your lawyer. Please send your questions to