Medical malpractice cases are very complex.
This series of articles by BC personal injury and medical malpractice lawyer Paul Mitchell, Q.C., will explain the Top 7 things you need to know about medical malpractice cases, including when a medical malpractice case should be commenced, the legal and medical issues involved, and why they are so hard to win.
Paul Mitchell Q.C has successfully concluded BC medical malpractice cases for amounts up to 3.5 million in individual cases.
Find out what is involved in these difficult cases.
#6 Proving Negligence in Medical Malpractice Cases
In order to succeed in a malpractice claim, it is necessary to prove that the doctor (or health care worker, nurse etc ) was negligent. This is often not easy, for a variety of reasons.
Although it may seem obvious that there was negligence in a particular case, looks can be very deceiving.
The burden of proving that a doctor was negligent is very high in Canada. Many cases are lost that often look like they should be a “sure winner”.
The courts in Canada have set the bar very high for a plaintiff to prove negligence.
It is not enough for the doctor to have an “error in judgement”. You must prove, on the balance of probabilities, that the doctor fell below the standard expected of reasonably competent doctors of similar training, and experience, in the manner of treatment.
This can often be very difficult to do. Doctors and health care providers are not liable for every mistake. The law realizes that doctors often have to make quick decisions without the best information.
The standard of care doctor must adhere to also differs from place to place. It also varies with the level of specialty of the doctor .The standard is often higher for specialists.
It also varies with time. Last year’s standard may not be good enough next year. The standard of care also varies according to the community and hospital that treat you.
A rural based doctor in a small BC town does not have as high a standard as a doctor in a large urban centre.
You must prove your case by expert evidence, with expert witnesses comprised of doctors in the same field and experience.
You have to prove, on the balance of probabilities, with expert evidence, that the doctor either did something that no reasonably competent doctor would have done or, alternatively, that he failed to do something that every reasonably competent doctor would have done in the circumstances.
It can often be exceedingly difficult to find doctors who are prepared to testify against one of their own. We must often go out of province, or the US, to find an appropriate expert, often at very great expense.The defence has a tremendous advantage in this area. They will be able to summon numerous experts (doctors) who will testify that in their experience, the doctor in this case was not negligent.
The judge will not make a decision based on what you would think should be “common sense” . He or she will only find a doctor negligent if the balance of expert evidence finds him or her negligent. These case are won and lost on expert evidence. These case end up often being a “battle of the experts”, with the defence having a distinct advantage in the battle, as they have many more experts prepared to testify in defence of the doctor, than the plaintiff can usually find who will testify against the doctor.
The odds are stacked against the injured person from the start.
The lawyer reviewing your case will want to know exactly what happened, with the history being investigated in excruciating detail, from witnesses, and the medical records.
The lawyer will then locate appropriate experts ( not an easy task as above described)and try to obtain sufficient expert evidence to prove that the doctor was indeed negligent.
The case is always being reviewed by the lawyer, with a balance of risk vs reward, as the case progresses. The costs of losing the case can be very high, so the lawyer will always be assessing the strenghts and weaknesses of the case, as the case and expert evidence unfolds.
If the court finds that the doctor was negligent, on the balance of probabilities, it is then necessary to overcome the next hurdle, which is proving “causation”.
This means you must then prove that the negligence of the doctor actually caused the injury or harm. We have to prove, on the balance of probabilities, again with expert evidence, that had the treatment been done differently , the result would have been better.
The complex issue of proving “causation” will be dealt with in next month’s article.
Paul Mitchell, Q.C.is a BC personal injury lawyer who has extensive experience with severe injury claims, including brain injury claims, spinal injury claims, death claims, ICBC claims, medical malpractice claims, and other catastrophic injury claims.
He acts for injured clients all over BC and Alberta, and will not act for ICBC or any other insurance company.
For more information on this article, or for a confidential discussion of your injury claim, contact Paul Mitchell, Q.C. at 250-869-1115 (direct line), or send him a confidential email at [email protected]
