All professionals are bound by laws that they must abide by. This differs depending on the professional body. For example, in the field of medical care, there is a standard by which professionals must conduct themselves.
When they fail to do so, they may be held accountable. This is why you must know how to bring a professional malpractice lawsuit, should this ever happen to you.
In this guide, we look at what constitutes professional and medical malpractice or negligence and what you need to do to be successful in such a claim against any professional.
What Is Professional Malpractice?
You may be quite familiar with the word “malpractice,” but to better understand it, we need to look at the definition.
Professional malpractice is sometimes also referred to as professional negligence. It involves any behaviour by a professional in the carrying out of their duties that can be deemed as signs of incompetence or negligence. Essentially, it is when a professional fails to perform their job with the relevant standard level of care for their profession.
When a professional fails to provide the appropriate care, their inappropriate action (or lack of appropriate behaviour) can have a direct effect on the client. Errors or omissions that cause damage or harm may be considered malpractice or negligence.
Common Types Of Professional Malpractice
There are several different types of professional malpractice. But three of the most common examples are engineering, legal and medical malpractice.
Legal malpractice occurs when a lawyer causes a negative legal outcome or monetary loss for their client or a third party. This may be caused by the lawyer’s error, omission, or disregard for the justice system process.
Examples of this would be a failure to file necessary documents or not showing up for a court appearance.
Medical malpractice is a legal cause of action that happens when a health care professional fails to comply with the standard level of care, resulting in harmful consequences for the patient.
To successfully bring a claim of medical malpractice or medical negligence, you need to prove that the professional or medical institution deviated from the accepted standard of medical care.
This violation could be in the form of improper conduct, an error or omission that resulted in pain, suffering, disability, or loss of income for the patient.
It applies not only to doctors but to any other health care providers as well. Anyone in the medical field, from a dentist to a general practitioner to a surgeon, can find themselves in a medical malpractice case.
Engineering or architectural malpractice occurs when engineers, architects, or design/build contractors do not comply with industry standards when completing their work. For example, if a building is designed with improper structural integrity for its intended use, this could amount to malpractice.
Malpractice vs Negligence
While the two tend to overlap, there is a distinct difference between malpractice and negligence. This difference lies in the action taken or not taken. However, malpractice is generally seen as a form of negligence.
Professional malpractice refers to a breach of a standard of conduct by a member of that profession when their misconduct harms a client.
For example, medical malpractice refers to unnecessary or incorrect actions on the part of health care providers that lead to further consequences and harm to their patients.
When a standard of conduct is not upheld due to inaction or inadequate care, this is called negligence.
Medical negligence, for example, is when a lack of necessary actions on the part of health care providers leads to consequences for the patient. In order to bring a claim, the negligence must have resulted in harm to the patient.
How To Bring A Professional Malpractice Lawsuit
Certain professions carry a certain level of inherent risk. Because of this, professionals such as doctors will generally have insurance against malpractice and medical negligence claims.
In the case of hospitals, there will be a legal team in place to handle such claims against the institution or its staff. If you have been the victim of professional malpractice or negligence, follow these steps to bring a professional malpractice lawsuit:
Inform The Professional
Inform the professional that you have the problem with that you are unhappy with the treatment or care you received. If they cannot or will not resolve the matter to your satisfaction, legal recourse is your next step.
Consult A Lawyer
Malpractice cases can be very complex. This is why you must consult a qualified lawyer without delay. And it needs to be a lawyer who deals specifically with malpractice cases.
Also, a malpractice lawyer will review all of the facts before they can advise you whether or not you have a case.
When it comes to medical malpractice, a qualified lawyer who deals with medical malpractice litigation and claims will be able to advise you on what to do. In some cases, a civil action may be more successful, for example.
Our personal injury lawyers are uniquely qualified to give you the very best advice in cases of malpractice leading to personal injury and wrongful death.
Medical Malpractice Claims
Medical malpractice cases are only successful if the patient experiences harm or an injury due to a medical practitioner’s actions. If this happens, you can make a case against the hospital for the treatment you received there.
Medical malpractice claims can be brought against a doctor, nurse, hospital, or other medical staff.
Note that even if you prove that a mistake or negligence took place, you cannot make a malpractice claim if no damage ensued.
File A Case
To bring a professional or medical malpractice lawsuit in Canada, you will need to start by filing a case. Your lawyer will assist you with this process. A court document called the Statement of claim will name all parties to the lawsuit and set out the allegations and facts of the case.
If you are seeking damages, you will also need to include a description of the types of damages you have suffered in this document.
Medical Malpractice Cases: When Is A Health Care Professional Held Liable?
A health care professional is obligated to fully explain a procedure and any associated risks before administering medical treatment. Other options, if any, should be discussed.
Common examples of medical malpractice and negligence include:
- Misreading laboratory test results
- Unnecessary surgical procedures
- Surgical procedure errors
- Incorrect dosage of medication
- Prescription errors
- Inadequate follow-up care
- Premature discharge of a patient
- Disregarding the patient’s medical history
- Failure to interpret symptoms of disease or medical emergency
- Administering the wrong medication
- Incorrect medical treatments
- The misdiagnosis of a medical condition
When Is A Medical Professional Not Held Liable?
Medical malpractice lawsuits can be very challenging to pursue.
However, this does not mean that justified cases of medical malpractice or negligence are not pursued. For example, if you suffer a brain injury caused by negligence or accidental surgery at the wrong site due to incompetence, you should file a medical malpractice claim.
You just need to be very certain of what you are getting into. This is why excellent legal counsel and representation are so important.
What Is Not Considered Malpractice?
In some cases where you or a loved one suffered as a result of a physician’s treatment decisions, you may not be able to prove malpractice or negligence.
This is because the law recognizes that even professionals can make mistakes. Even the most qualified and experienced medical professionals are not infallible.
For example, a wrong diagnosis or unsuccessful treatment does not always constitute negligence even if the patient suffers harm as a result.
If a qualified medical professional upheld an acceptable standard of care and performed all the proper and necessary steps in diagnosing or treating a patient, they will not be held liable for complications that arose.
They also will not be held liable for injury or loss if any reasonable medical practitioner may have made the same error in those circumstances.
Things To Consider Before Filing A Medical Malpractice Case
Here are some important things to know before filing a medical malpractice claim.
Legal Protection Of Medical Professionals
Canadian physicians and hospitals are covered by medical liability insurance. The Canadian Medical Protective Association is one such body of protection.
The Onus Of Proof Is On You
The onus is on you to prove that the medical professional in question did not act reasonably or follow the correct procedure. Remember that the doctor or hospital involved will have a tough legal defence.
Because this can be a very stressful situation, proper legal representation is necessary. Complete honesty and transparency on your part are just as essential.
The courts follow strict guidelines when determining if a patient’s injury is a result of medical malpractice. And you cannot always expect a large settlement, even if you prove malpractice or negligence.
Malpractice cases usually include claims for a variety of things, including medical bills not covered by OHIP, income loss and pain and suffering. In Canada, the Supreme Court has capped the damages amount that one can claim for pain and suffering in all claims, including malpractice claims.
However, the claims for medical care-related costs and loss of income are not capped.
There are important deadlines to adhere to when starting these lawsuits, known as limitation periods. These time limits require you to file your claim within a certain period.
This period is determined by when the malpractice or negligent act is said to have occurred. Failure to file your claim in the stipulated time frame will result in you waiving your rights to be awarded damages for your loss or injuries.
As this would negatively impact your case, you must not delay reporting any incidence of malpractice. Consult a lawyer right away.
Your claim must usually commence within two years of the date of the last treatment in question. Alternatively, no more than two years should have elapsed from when you were first aware of the doctor’s negligent or improper conduct.
This is a very complex area of the law that depends on the facts of each case and you should always talk to a lawyer as soon as possible to avoid missing a limitation period to bring your claim.
What Elements Are Required For A Medical Malpractice Claim?
You will need to prove the following to bring a successful medical malpractice case against a doctor or medical institution:
- There must be proof of a verifiable patient-physician relationship. This will show that the doctor owed you a certain duty of care.
- The doctor (or other professional) must not have provided a reasonable standard of medical care.
- The injuries or losses that were suffered should have been reasonably foreseeable to prove that the doctor is guilty of malpractice.
- Proof that the doctor’s medical treatment and accompanying behaviour caused the injuries or loss.
- Any consequences suffered need to be actual, demonstrable damages.
You will need to furnish the court with all medical records and reports that can support the above elements.
Compensation For Professional Or Medical Malpractice
The court may award you damages for any future medical expenses and lost income that resulted from a professional’s malpractice or negligence when treating you.
Compensation can also cover the legal costs involved in bringing a malpractice case to court. In addition, you may be awarded a settlement for any pain and suffering you endured as a result of professional or medical malpractice/negligence.
Most doctors are members of the Canadian Medical Protective Association (CMPA). The CPMA is well-funded and defends member physicians and hospitals from malpractice lawsuits. But, if you have experienced harm as a result of medical malpractice, you are entitled to receive financial compensation.
Professional malpractice cases are not without their difficulties. This is especially true of medical malpractice and negligence claims cases. But with the right advice and support, you will get the justice you deserve.
Have you or a loved one been the victim of a professional’s malpractice or negligence? Contact us today for a free consultation.