WHAT IS A MEDICAL MALPRACTICE CLAIM?

by Chris Wullum

Medical malpractice claims refer to lawsuits brought against health care professionals, such as doctors, nurses and hospitals, where substandard medical care was provided that resulted in preventable injuries. It is important to remember that not all adverse outcomes from medical care are the result of medical malpractice. Some complications and poor outcomes are simply unavoidable as there is never a guarantee of a perfect outcome from medical care, even if the treatment appears to be routine.

However, every year, a significant number of preventable adverse medical events occur in Canada that may involve substandard care, or negligence, by health care professionals. These situations may be suitable for pursuing a medical malpractice lawsuit.

There are many different types of cases that can result in a medical malpractice claim. Some of the more typical cases include:

  1. Diagnosis Error. A diagnosis error or misdiagnosis may occur as a result of a failure by a doctor, nurse or other health care practitioner to properly recognize a patient’s symptoms, order appropriate tests, or diagnose a patient’s condition or disease. Timeliness in making a proper diagnosis may also be a significant factor for a patient’s wellbeing.
  2. Emergency Room Errors. Errors in hospital emergency rooms may occur as a result of a misdiagnosis, delayed diagnosis, a mismanagement or failure to obtain timely tests, or a failure to consult with appropriate specialists. Frequently, an emergency room error can result in an improper discharge of a patient home or a lack of timely care leading to greater complications and injury.
  3. Surgical Errors. Every time a person undergoes a surgical operation at a hospital or clinic, under the care or a doctor or nurse, there are risks of surgical and medical malpractice. Surgical errors may occur during the pre-operative care, during the course of the surgery, or during post-operative care. They sometimes involve the care and treatment of a post-operative infection that may develop. Some complications from surgery are simply unavoidable risks and therefore do not constitute medical malpractice. However, if the surgery or post-operative care was done negligently and results in a preventable injury, the patient may have a claim for medical malpractice.
  4. Medication Errors. Medication errors can result where the wrong medication or the wrong dosage of a medication is prescribed either due to an erroneous diagnosis, misinterpretation of orders, or an error by a doctor, pharmacist or pharmacy. Such errors may results in greater injury or complications for the patient or a delay in treatment for the patient resulting in further injury.
  5. Informed Consent. Informed consent is the requirement that a doctor or physician explain to a patient the nature of a medical procedure or treatment and all special, material or unusual risks or complications associated with it prior to proceeding with the procedure or treatment. In some instances, a doctor is also required to discuss any alternative treatments reasonably available for the patient. In Canada, a claim for lack of informed consent requires proof not only that the patient would not have undergone the procedure or treatment in question if the appropriate information was provided, but also that a reasonable person in the same circumstances as the patient would not have consented to the treatment or procedure had all of the appropriate information been provided.
  6. Birth Injury and Birth Trauma. Unfortunately, every year children are born suffering from serious permanent neurological or intellectual problems. Often these injuries could have been prevented with appropriate monitoring, intervention, diagnosis or treatment by a doctor, nurse or other health care provider. In some cases, there are signs that the unborn baby is not developing in a healthy manner or is in fetal distress. In some cases the mother’s history can include factors that may make the pregnancy or delivery high-risk. For greater detail and insight on birth injury claims, please see the resources of the Birth Injury Lawyers Alliance.

Medical malpractice is a complex and challenging area of law. The success of any malpractice claim is dependent on the underlying merits of the case and the experience of the lawyer assisting on the claim. If you would like further information on medical malpractice or have a situation for which you would like specific legal advice, please feel free to contact one of the lawyers in this practice area at Tapper Cuddy LLP.