An Overview: Bringing a Medical Malpractice Claim

Bringing a Medical Malpractice Claim

As a result of a negligent act or omission by a health care professional, you may have a meritorious medical malpractice claim. However, to support your claim, you must obtain a number of medical files including your complete hospital chart and all related medical records. In addition, you must hire one or more qualified health care practitioners to review and provide expert opinion on your documentation.

If, on review of the documents, the healthcare expert believes that the offending healthcare professional did not meet the standard of care required, and that this failure was likely the cause of injury, then the expert provides you with a report in support of the claim you’re making. Obtaining these records is expensive, as is the hourly billing of the healthcare expert.

Until the lawyers have the right information and the answers coming out of these medical documents and expert opinions, inquiries into the chance of the claim succeeding will only be met with uncertainty.

Limitation Periods

Limitation periods place a restriction with regards to the time in which you can bring a medical malpractice claim to court. You have to bring a claim within two years of the date when you knew or ought to have known of the facts giving rise to the claim. There are exceptions to this rule: 1) case involving children under the age of 18; and 2) cases involving victims without the mental capacity to make legal decisions.


The following are a list of awards and damages, with a brief explanation adopted from LexisNexis, that can be ordered by the court in favor of the complainant.

1)      Non-Pecuniary Damages

“Awards for non-pecuniary damages is to provide solace to a plaintiff for his or her losses. In making such an award, courts consider damages for similar injuries awarded in other cases. Even in the case of the most severe injury, courts may not award more than approximately $350,000 in non-pecuniary damages, having regard to the Supreme Court of Canada “trilogy” — Lara Fitzgerald-Husek, Oatley Vigmond Personal Injury Lawyers LLP.”

2)     Damages for Psychological Injury or Nervous Shock

“Damages may be awarded for psychological injury or nervous shock if the plaintiff is able to establish that it was reasonably foreseeable that a person of ordinary fortitude would have suffered such injury as a result of the defendant’s negligence. In Ontario, additionally, the plaintiff must suffer from a “recognizable psychiatric illness” in order to recover damages — Lara Fitzgerald-Husek, Oatley Vigmond Personal Injury Lawyers LLP.”

3)     Future Expenses and Losses

“Damages that a plaintiff may claim with respect to future (post-trial) expenses or losses. Included in such claims are loss of earning capacity, ongoing costs of care, loss of housekeeping services and loss of pension income/contributions — Lara Fitzgerald-Husek, Oatley Vigmond Personal Injury Lawyers LLP.”

4)     Past Expenses and Losses

“Special damages that may be awarded to a plaintiff, with respect to losses incurred by them up to the date of trial. Such damages include past loss of income and cost of care. For persons injured in a motor vehicle accident, the Insurance Act limits the liability of certain defendants for awards of pass income loss, earning capacity and healthcare expenses — Lara Fitzgerald Husek, Oatley Vigmond Personal Injury Lawyers LLP.”

5)     Loss of Income and Earning Capacity

“Awards for loss of income and earning capacity, which compensate for loss of income and earning capacity to the date of trial and to future loss and incapacity. The plaintiff is not required to have been employed at the time of the accident in order to be entitled to this award, as it may also be based on a loss of competitive advantage and opportunity, in addition to loss of ability to earn income — Lara Fitzgerald Husek, Oatley Vigmond Personal Injury Lawyers LLP.”

6)     Loss of Housekeeping Capacity

 “A claim for loss of housekeeping capacity may relate to work that the plaintiff did not do after the accident, work that the plaintiff did, but with increased inefficiency and pain, and to work that others did for the plaintiff, with or without remuneration — Lara Fitzgerald-Husek, Oatley Vigmond Personal Injury Lawyers LLP.

Expectation Setting

There are about 1,000 medical malpractice cases across the country each year, out of which one-third end up being dismissed. Many of the remaining ones are settled or for those that go to trial, the doctors win more than the patients. In the event that your case gets to trial, a case takes six years on average. Even the ones that get dismissed carry on for an average of three and a half years before getting thrown out.

It is crucial at this time to make sure that your finances are in order and to budget accordingly to ensure that you and your family don’t suffer economic hardship for the duration of the case. Find plaintiff support groups for tips and best practices to weather the storm. 

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