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Can I win my malpractice claim?

Posted by Geoff Aylward | Jun 01, 2017 | 0 Comments

You have a malpractice claim if each of the following can be proven:

  1. The doctor did not meet a reasonable standard of care in providing or managing medical treatment. A higher standard of care is required of a specialist than a general practitioner. An error in judgment will not necessarily be a breach of the standard of care. In the most recent birth injury case decided May 31, 2016, the BC Supreme Court stated: “Mere errors of judgment in diagnosis or treatment are not necessarily negligent. On the other hand, just because the error involves an exercise of judgment will not preclude the possibility of a finding of negligence. The determinative factor is whether the doctor exercises the knowledge, skill and judgment of the careful and prudent doctor in the same circumstances.” The total award for the child (who suffered cerebral palsy with cognitive impairment and quadriplegia) was $5,200,000.
  2. The failure to provide reasonable care caused you injury. A doctor may make any number of mistakes in your treatment, but one or more of those mistakes must be responsible for the injury in order for you to have a claim. If the injury was caused by an inherent risk of the treatment, especially if you were reasonably informed of the risk, you may not have a claim.
  3. The injury caused you damages that are significant enough to justify the risk and cost associated with your claim. You are entitled to damages that can be proven to have been caused by the negligence of the doctor. Complicating factors, including prior medical problems, may in some cases be responsible for some or all of the damages.

Not every error by a doctor will result in a malpractice claim.  Doctors are not required to be perfect.  An assessment, diagnosis, procedure and follow-up could meet the usual standards followed by doctors.  If so, a claim for an adverse medical event will probably fail.

The assessment of your claim is an ongoing process from the moment you engage a lawyer.  This will affect your decision to commence a lawsuit and proceed with the various stages of the action up to and including trial..

About the Author

Geoff Aylward

Geoff graduated from Memorial University with a joint honours degree in Political Science and Economics. He received the gold medal in Economics. In 1983 he received his law degree from Osgoode Hall, York University and became a member of the Law Society of Newfoundland and Labrador. Geoff first practiced law with his father in Aylward, Morris & Pittman and continued to practice with the successor firms of Aylward, Chislett and now Aylward, Chislett & Whitten.

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