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Medical Malpractice

What should I expect at my first meeting?

You will meet with a lawyer at your initial consultation. Before any medical issues and legal procedures are discussed, 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:


  1. Chronology of what occurred
  2. Who you saw and where
  3. What was done
  4. When was it done


At this point, we will explain the legal issues involved (standard of care, causation, damages and limitation period) and how we will proceed to investigate your case. Additionally, we will provide you with information dealing with legal fees and expenses.


If you have any additional questions, please feel free to contact us.

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:

  1. When the medical events occurred
  2. Potential amount of damages
  3. The financial costs involved
  4. Type of injury

If you have any additional questions, please feel free to contact us.

What are the alternative options?

If the medical issue involves a doctor, a complaint can be directed to the College of Physicians and Surgeons. Similarly, if it involves nursing care, the College of Nurses of Ontario is the appropriate association to which to direct a complaint. There are governing associations for most medical and health practitioners.


If you have any additional questions, please feel free to contact us.

Would I receive compensation from the association if I make a complaint?

No. The college or association investigates the complaint and determines if disciplinary action should be taken. The doctor, nurse or other health practitioner involved 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 will review the medical events and provide an opinion. An expert is someone with similar professional experience as the individual in the complaint and the purpose of the expert is to assist the association in its investigation of the complaint. You will then be advised of the investigating body’s decision.


If you have any additional questions, please feel free to contact us.

What initial steps should I take?

Very often, the conditions that existed at the moment of your injury will be lost if not preserved either by video, photography or retention of involved equipment. Therefore, you must do whatever you can to preserve the evidence. As well, take photos of your injuries, bruises and cuts as they may provide valuable information for your lawyer later about how you were injured. If you kept notes or a journal of events as they happened, provide them to your lawyer.


If you have any additional questions, please feel free to contact us.

What are the next steps when I want to sue?

If you want to sue for a personal injury claim, and together we have determined that your case should be further investigated, our next step will be to review the financial aspects of the investigation again. It is very important that you have sufficient financial information in order to make the decision to move forward with your case. Effectively, you are investing money in order to determine if you have a case. This retainer fee is not refundable in the event the investigation does not support the case.


Retainers create the lawyer-client relationship. This money is used to finance the investigation, which includes:


  • Obtaining copies of clinical and hospital records
  • Conducting medical research
  • Obtaining medical opinions from experts
  • In some instances, paying for court fees to commence a lawsuit to protect your rights while the investigation continues
  • Providing an opinion to you about your case

If you have any additional questions, please feel free to contact us.

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 (i.e. did not meet the 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 answered by an expert is whether or not failure to provide appropriate care or treatment caused or contributed 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 or contributed to the 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.


If you have any additional questions, please feel free to contact us.

How long does it take to get opinions?

Generally, once we order the clinical and hospital records, we do not receive them for several weeks. Once received, we review the records in order to determine the following:


  • Is the information the same or different from the client’s memory of events?
  • Are we able to identify the primary targets in the lawsuit?
  • Are the medical issues the same or different from the ones initially discussed?
  • What experts do we need?

The above review can take a week or more depending on the volume of the records.


Next, we contact potential experts and determine who can assist us. Once an expert has agreed to assist, the records are sent to the expert for review. Depending upon the type of specialist, the 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.


If you have any additional questions, please feel free to contact us.

Do I have sufficient time for this investigation?

There are deadlines for starting lawsuits against doctors, nurses, hospitals and other health practitioners. These are called “limitation periods”. Determining the limitation date for commencing a lawsuit can be somewhat complex depending on the specific circumstances of the case. Generally, the limitation period for starting a lawsuit against hospitals and nurses is two years from the date of occurrence, if it occurred after January 1, 2004. If it occurred before January 1, 2004 the limitation period to start a lawsuit against a doctor could be one year. There are exceptions to the general rule (children or persons with mental disabilities) and in some instances, the Courts have interpreted the time frame differently.


Because the investigation of your case can take some time, you should not wait until the last minute to decide to speak to a lawyer.


If you have any additional questions, please feel free to contact us.

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 and it is important that we retain someone who is experienced, knowledgeable, and unbiased to help with your case.


If you have any additional questions, please feel free to contact us.

Will I have trouble getting medical care after I sue?

If one of your treating doctors is the target of a lawsuit, then we expect the doctor will suggest you obtain treatment elsewhere. The doctor will perceive the lawsuit as your lack of confidence in him or her. Treatment at a hospital should continue unless the treating doctor is involved in the lawsuit.


If you have any additional questions, please feel free to contact us.

If the experts support my case then what happens?

The expert opinion must be supportive on both issues of standard of care and causation. When this occurs, we will arrange a meeting and provide our recommendations to either start the lawsuit or continue it. The doctor, hospital or nurse will be informed of the lawsuit and a defense 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.


If you have any additional questions, please feel free to contact us.

How long will the entire process take?

Depending upon the complexity of the case, the various legal steps leading up to a trial may take years. On average, this process takes 2-5 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.


If you have any additional questions, please feel free to contact us.

Why is it taking so long for my case to resolve?

There is no precise timeline for completion of the litigation process. However, you can evaluate whether it is taking too long by considering these factors:

  1. Do you have a prognosis? This is the most important factor of all in determining how long it will take your case to get to trial. Your prognosis determines everything from the amount of pain and suffering damages, to your long-term care needs and future wage losses. Until your lawyer knows from the doctor what the medical future holds for you, it is difficult, if not impossible, to settle your case or take it to trial. In many cases, that can take years. Once the prognosis is known, then you can expect a number of assessments to take place to properly evaluate your claim.
  2. How busy is your lawyer? Good lawyers are busy and insurance companies appoint good lawyers to defend cases. This means that scheduling is often delayed because of the lawyers’ time constraints, ultimately delaying your case.
  3. Does your lawyer have a plan? Business is not, however, an excuse for drifting. Your lawyer should have a plan for your case and if you have questions, ask. Firmly and politely enquire about what the plan for resolution of the case is. You will likely be reassured by asking those questions. If you are not, you may wish to get a second opinion.
  4. Administrative or court delays Problems often arise with scheduling cases due to lawyer time constraints as many busy lawyers double book and even triple book to take into account the possibility of settlements. If your case is considered long, over two weeks, the courts have less flexibility in giving you a date, especially outside major settings where there is only one judge or limited court space. Your case in those jurisdictions can get bumped by murder and rape trials, for example, because not every case is treated with the same urgency. The rule of thumb for trials in London is the trial will be held about one year from the point your lawyer will appear before the court to set the trial date.
  5. Legitimate defence requests Unfortunately, things change in personal injury cases. New problems develop, surgeries take place, jobs are taken on or lost, and training succeeds or fails. All of this changes the face of the case and the damage assessment. It may lead your lawyer to another set of assessments and every time this happens, the defence may wish to have the change evaluated by its own expert. It is disheartening, but a carefully prepared case must take into account change; including changes in the law itself. 

If you have any additional questions, please feel free to contact us.

What happens if I die before a case is concluded or I change my mind about pursuing the case?

If you were to die before the case is concluded, a lawsuit against a healthcare professional 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 throughout the process of suing. The legal expenses incurred, the time spent and other factors would be discussed. Similarly, we may advise you not to proceed further or to discontinue the lawsuit against a particular party. We continue to evaluate the case during the litigation process and a new report, condition or opinion may affect the outcome of the lawsuit.


If you have any additional questions, please feel free to contact us.

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