Some of the most common calls that we receive from potential new personal injury clients are inquiries about medical malpractice cases. Themes involve: a health professional made an error; suffering a poor outcome as the result of a procedure; missed diagnoses; and so forth.
The ultimate question: “Do I have a case?” The answer, like all answers in law, is generally, “It depends.”
Even cases which appear egregious on their face are often gruelling and hard fought. Medical negligence actions are among the most difficult personal injury actions.
No matter how strong or obvious a case may seem, every medical malpractice case has a high probability of going to trial. For those who think settlement should be straightforward, this can be disappointing. For those individuals who may not have suffered significant damages, embarking on a long road to trial may not make sense.
Even if a medical error appears obvious, each case will require expert evidence–usually from more than one independent expert. It is critical to understand that not every bad outcome is the result of poor medical care or negligence. Most medical procedures or medications are associated with inherent risks. The fact that an individual suffers a poor outcome as the result of a procedure may be due to an underlying risk of the procedure itself, rather than due to any negligence on the part of the treating healthcare professional. In order to understand whether there is potential negligence involved, expert evidence will be required to prove negligence was involved.
Once negligence is proven, the plaintiff must then prove something else: causation. Even if negligence is firmly established, this does not automatically equate to success in a civil action. It must be proven that the negligence actually caused a poor outcome, or “the damages.” The simple fact of a mistake does not, by itself, entitle a person to damages.
As an example, a case where a physician missed a diagnosis of cancer may seem clear. Cancer may be ultimately diagnosed months later than it ought to have been, delaying appropriate treatment. However, this does not mean automatic success in a civil action. If the plaintiff cannot prove that a timely diagnosis would have made a difference to their outcome, then the action will fail and will be unsuccessful, despite obvious or even admitted negligence.
The expert evidence may reveal that, even if the correct diagnosis had been made at the first opportunity, the outcome would have been the same, or not significantly different. The loss of a chance for a better outcome will not entitle an individual to damages–there must be proof that, with a timely diagnosis, the patient’s outcome would, more likely than not, have been better.
Unfortunately, cases are not usually as simple as that Snickers commercial would have you believe. You know the one: the doctor is hungry and accidentally sews his cellphone into his patient. Though Snickers would have you believe this was an avoidable error, if only everyone kept a stash of chocolate bars on hand, it is doubtful that “hunger” is a viable legal defence.
Most people who call in are surprised to learn this information, but are ultimately happy to have a better understanding of their rights. And of course, success is still possible in the right cases when they are supported by expert evidence.
Lauren Grimaldi is a lawyer who specializes in personal injury law at Scarfone Hawkins LLP, One James Street South, 14th Floor Hamilton, Ontario L8P4R5.
www.shlaw.ca
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