Medical Malpractice 101, The Top 7 Things You Need To Know About BC Medical Malpractice Cases – #3

Medical malpractice cases are very complex.

This series of articles by BC personal injury and BC 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.

Find out what is involved in these difficult cases.


If you have a potential medical malpractice case, the decision whether to proceed, or continue,, with a lawsuit involves many factors.

One of the important considerations is the potential financial downside to you personally should you lose your case.

The decision whether to proceed with a  case involves a very complicated assessment of risk.

The evaluation of risk involved is simply whether the potential benefits of proceeding outweigh the risks and costs of losing.

The risks of losing involves not only the merits of the case, and the win/lose potential of the case, but also the costs should you lose.

Your lawyer may agree to take your case on a percentage, which is  called a “contingency fee”. The lawyer’s fee is only payable on the contingency of collecting money for you, either by a settlement, or award at trial. Should you lose your case, or receive nothing in a settlement, the lawyer would get no fees, but you still have to pay out of pocket costs, which can be significant.

Our court system is a “loser pays” system. 

Should you lose your case at trial, you are  responsible for two types of expenses and costs.

You have to pay your own lawyers out of pocket expenses( called disbursements), as well as the defence costs, which includes part of the defence’s legal fees.


These costs can be significant, and include all of their disbursements (expert costs, photocopying, mail, etc.), plus all of their expert costs. These total costs can be substantial.

Medical malpractice cases often  include numerous experts on all the medical liability and causation issues,  but also include numerous experts on quantifying what your claim is worth. These  include cost of care experts, income loss experts, actuaries, economists, home care and accommodation experts, psychologists, neurologists, and the list goes one, depending on the type of injury involved.

They are all very expensive. The lawyer has to obtain a report from each expert, prepare them for trial, and often fly them in to testify.

Very expensive.

In many large cases, the costs of experts spent by your own  lawyer could easily be $50,00 to $100,000 out of pocket. If you lose, you have to pay these costs.


If you lost, you also have to pay for the other side’s experts, and part of their legal fees. These can easily be as much as your own lawyer’s costs, and sometimes more. Many cases involve multiple defendants , more than one doctor, plus a health care facility, such as the hospital.

In these cases, there are several different sets of defence teams, with their own costs and experts. You have to pay for them all if you lose. The costs can be very high, and could easily be in the $100,000 range for defence costs alone.


To make matters worse, our court system has a number of additional penalties to encourage parties to settle.

One such penalty involves “Formal Offers”.

A Formal Offer is a special document a party can serve on the other party, saying “I will settle for $ X”. This can be served at any time, but is usually the parties best “number” at the end of negotiations. Should you not accept the defense’s  “Formal Offer”, and decide instead to roll the dice by going to trial, and do not beat their offer at trial, there are punitive provisions that apply.

If you get a judgment that does not beat their Formal Offer, (even though you “won the case” by getting a judgment) then you may be responsible to pay up to double the costs of the winning party incurred after they served the Formal Offer.

Very expensive.

It is a provision in our court rules  designed to be a “hammer” to encourage parties to settle, by substantially increasing their risks and costs of losing, or not beating the other parties offer.

All of the risks associated with a medical malpractice case, including the costs payable in losing, are constantly being evaluated by the lawyer, and the client, as the case proceeds from the  initial  investigation stage, to discovery, right through to the conclusion of the case.

In summary, when a lawyer is advising the client of the pros and cons of whether to commence, or continue with,  a medical malpractice  lawsuit, the risk assessment must  involve a very realistic look at the potential costs of possibly losing the case. The client , and the lawyer,  must not only calculate, and continually revaluate, the potential benefits of winning the case, but the lawyer and client must also both be prepared to undertake the substantial risks and monetary costs of potentially losing the case.

Paul Mitchell, 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. Paul has successfully concluded BC medical malpractice cases for amounts up to 3.5 million in individual cases.

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]

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