3 Types of Medical Malpractice

The Canada Health Act is a wonderful document that entitles all legal residents of the country to health care. The law also requires all levels of government to participate in providing that health care. Most importantly, it provides for a citizen’s right to pursue a doctor for medical malpractice when that care fails. Here’s how you can go about that if you ever need to.

Malpractice in Canada

Nearly all civilian doctors in the country belong to a medical defense organization. These operate much like insurers and protect doctors in lawsuits. Some hospitals also have this type of insurance, and nurses have started their own similar union.

Canadian law also puts caps on pain and suffering awards in general, especially in the case of medical malpractice. These caps are adjusted for inflation but tend to be very firm.

The three types of malpractice

Lack of informed consent: In the past, the test for informed consent was to ask whether a doctor had given a patient information that a “reasonable physician would choose to disclose.” The Supreme Court, in Reibl v. Hughes, changed the test standard to what a “reasonable person in the patient’s position would want to know.”

In effect, that means doctors must disclose all possible risks associated with a test or procedure. The doctor should also take time to find out if any special factors, like age, medical history, or family situation, could affect a particular patient. If doctors fail in this area, and you are harmed as a result, you have the right to compensation.

Failure in the doctor-patient relationship: In the past, Canadian federal law and Ottawa provincial law held that the doctor/patient relationship was essentially just a contract. After several groundbreaking court cases, the law now considers the doctor/patient relationship to be “fiduciary”.

Previously, for example, patients couldn’t have access to all their medical records since those were considered the property of the doctor. Now, in most cases, doctors have a fiduciary duty to give patients access to their own records. If they don’t, your Ottawa lawyer can make a case for breach of trust.

Failure in duty of care: The common law of Ottawa states that doctors owe their patients reasonable care that follows all accepted medical standards for any particular situation. When a doctor fails to do this, you have the right to compensation if that failure hurts you.

Some cases are very clear: if a physician doesn’t give a patient a lead apron for x-rays, this is a clear breach of accepted standards of care. Other cases are less clear: if a doctor counsels a patient not to drive but fails to alert provincial authorities, and the patient keeps driving and is injured in an accident, the courts may or may not find that the doctor failed in duty of care.

What complicates medical malpractice suits?

Medical malpractice suits in Canada can be complicated, and there are some important reasons for this. For one thing, a plaintiff must establish three things without doubt:


  • A physician or other medical professional failed in some way
  • The patient has been genuinely harmed
  • The harm is directly related to the failure and would not have happened otherwise

What makes these decisions so complicated is that medicine is not always cut and dried. Experts may differ on a diagnosis or on a cause. Another problem is the difference between the legal definition of causation (which the courts use) and the scientific definition (which doctors use).

For the most part, Canada’s healthcare system works, and works well. Like any system, however, there are bound to be hiccups along the way. Sometimes doctors fail in their duty, in their relationships with patients, or in their explanations.

When those failures cause harm, it is appropriate to seek compensation. Given the complexities involved, it’s always wise to have the counsel and assistance of a skilled lawyer to ensure that all your rights are protected.

Image Credits: Medical Malpractice from designer491 /Shutterstock

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