Answers to your Medical Malpractice questions on CanLaw
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2 01.00 You really need to consult a malpractice lawyer to determine if you have a medical malpractice claim.
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If you or your loved one has been injured there's only one smart step to take -

Use CanLaw's Lawyer Referral Services to hire a good malpractice lawyer

Doctors can and do make mistakes which can leave a patient with serious injuries
Ask a CanLaw medical malpractice or personal injury lawyer to assess your case.


Doctors, nurses, dentists and other health care practitioners can and do make mistakes.

if you are injured as a result, use CanLaw's Lawyer Referral Services to find a medical malpractice lawyer.

You may be entitled to compensation for some or all of the following:

  • Injuries, pain and suffering, usually referred to as general damages
  • Loss of income and/or ability to earn income
  • Housekeeping and home maintenance expenses
  • Health care expenses not covered by insurance or other sources

There are two areas where malpractice

injuries are actionable:

1. Negligence of a doctor or nurse.

2. Failure to obtain your informed

consent regarding any treatment


Standard of Care

There is no liability for an honest error of judgment

There is an obligation to take reasonable care to avoid risk of foreseeable harm to patients

Duty of care includes both avoiding acting in ways that could harm a patient and/or taking affirmative steps to protect a patient.

Hospitals and emergency clinics must also provide security to protect patients and their family or visitors.

Establish the standard of care by looking at what a reasonable person in the same profession would do in all the same circumstances of the case

A reasonable person was described by Laidlaw J.A. in this way in Arland v. Taylor, [1955] O.R. 131 (C.A.), at p. 142:

"He is not an extraordinary or unusual creature; he is not superhuman; he is not required to display the highest skill of which anyone is capable; he is not a genius who can perform uncommon feats, nor is he possessed of unusual powers of foresight. He is a person of normal intelligence who makes prudence a guide to his conduct. He does nothing that a prudent man would not do and does not omit to do anything a prudent man would do. He acts in accord with general and approved practice. His conduct is guided by considerations which ordinarily regulate the conduct of human affairs. His conduct is the standard “adopted in the community by persons of ordinary intelligence and prudence."


You really need to consult a malpractice lawyer to determine if you have a medical malpractice claim.

Your personal injury lawyer will assess your claim, give you an idea of what your injury case may be worth and how long it will take. There are no fast settlements.


Time Limits for filing a claim are generally two years

In Canada, the courts have capped general damages (pain and suffering) just over $300,000.00.


Malpractice and Personal Injury Lawyers often represent clients on a "contingency basis."

The lawyer does not charge for services until the case is resolved. This means that the lawyer and law firm are taking the case on the basis that they will only be paid their fees if and when they are successful in settling the injury case for the client.

Generally lawyers in malpractice actions will take on a case only if they believe the insurance company will settle out of court. They become negotiators, trying to obtain the largest out of court settlement they can get, because they take a very large piece of the settlement (often 50%) as their fee.

The contingency fees can be very, very high. 50% of the court award is not unusual. Be sure you know what you are getting into on a contingency case. Ask who will pay for disbursements and similar costs.

They are not doing you a favour in taking the case. They are doing it because they believe there will a huge pay cheque for them in the tens of thousands of dollars in the end. It is a very good sign that you have strong case and will probably win. No guarantees.

Factors the Court  Uses in

Determining Fault and Damages

  • Probability of injury arising from defendant’s conduct
  • Likelihood of severity of injury
  • Balanced against cost of avoiding risk
  • And social utility of defendant’s conduct

The first two variables are usually weighed more than the last two variables.

Finally, based on specific facts of your case using  the 4 factor test, the court  will determine if the defendant breached the required standard of care in all the circumstances.

You Will Definitely Need to

Employ Expert Witnesses

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Defence lawyers, working usually for an insurance company, will vigorously defend against any malpractice claim.

The days of easy go away money are gone.

They will have very experienced lawyers and doctors usually involved with the Canadian Medical Protective Association CMPA, which can and will dispute and deny every claim. It is entirely up to you to prove your case.

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