Suffering an injury due to a medical error is a very traumatic event. For most people, feelings of anger, frustration and confusion are common. The consequences of a medical error can be both physically and emotionally devastating. For many people, they are left with unanswered questions and want to ensure that others do not suffer the same fate.
In many cases, victims of a medical error ultimately think about pursuing a lawsuit against the doctor or health care provider involved. However, there are many important factors that go into whether suing a medical provider for a personal injury claim is the best choice to address issues of anger and accountability. Health care providers are defended by protective associations which are different than regular insurance companies. For that reason, the decision to sue a health care provider should not be taken lightly.
Doctors in Canada are defended by the Canadian Medical Protective Association. The Association is not an insurance company. It is a fund created by doctors that has been paid into by doctors for upwards of 100 years. The purpose of the Association and the fund is to protect doctors from lawsuits and to only pay if a Judge orders them to or if there is no reasonable prospect of defending the medical action. For that reason, it is important that when looking at suing a physician, proper factors are taken into account. Unlike traditional insurance companies, health care providers will not settle a claim for nuisance value, concerns over public exposure or other factors, short of losing a trial.
The primary factors to consider when suing a doctor or health care provider for personal injury include whether or not you have a claim and what the value of your claim may ultimately be. Again, a lawsuit may not be the best choice, depending on these factors.
The first consideration is whether or not you or your loved one has a valid and provable claim against a health care provider. To establish a claim against a doctor or health care provider, you must prove that they breached an acceptable standard of care and that that breach caused the injury complained of.
It is important that whoever is acting on your behalf spends the appropriate time and effort reviewing your situation to determine that a breach of the standard of care can be established and that the breach of the standard was the actual cause of the injury or outcome complained of. In some cases, the medical error may be obvious but the effect the error had on the overall outcome may not be as clear. An example is often found in the area of missed diagnosis where physicians are slow to diagnose and treat cancer. Unfortunately, because of the lethal nature of cancer, some errors may not ultimately affect the outcome. Unlike the United States, Canada does not have the loss of chance doctrine and simply being deprived of the opportunity to treat does not provide a means for compensation.
Another very important factor to consider is whether or not the injuries suffered has caused damage that warrants significant compensation. Undertaking to sue a health care provider is a significant task that can take years and may cause additional emotional stress. Further, in Canada if you pursue someone for a legal claim and are unsuccessful, they have the potential to come after you for legal costs, creating financial risk for the claimant. This can add a further insult to the already suffered injury. Accordingly, a careful review of your injury and the damages that you are entitled to is a key factor in deciding whether to pursue a claim or not. For most people, unless the money is significant enough to have a material impact on your life or is needed for essential treatment or income replacement, a lawsuit may not be the best option. There are other options to hold physicians and health care providers accountable, including reports to the various governing bodies and complaints within the hospital system.
Again, careful consideration of the potential damages for injury is a very important factor to consider.