Medical malpractice is a complex area of law with claims that are generally rooted in negligence. Claims can be made against a variety of individuals, companies, and public bodies that provide health care to individuals. For the purposes of this article, we will consider all types of health care professionals including doctors, nurses, health care administrators, physical therapists, dentists, psychologists, and others, all of which will be referred to as “Practitioners.” If you have any questions about a specific health field, please reach out to our office and we will do our best to answer them.

Typically, claims against Practitioners can result from either a positive act or an omission by the Practitioner in their professional capacity. In Canada, physicians are insured against medical malpractice claims by the Canadian Medical Protective Association (“CMPA”), an insurer subsidized in part by the provincial governments. In many provinces, nurses and hospitals are most often insured through the Healthcare Insurance Reciprocal of Canada (“HIROC”) or other insurance companies. However, Alberta Health Services has established its own unique self-insurance system. Other health care professionals such as chiropractors, optometrists, and dentists, have various specific insurance policies in place.

MEDICAL MALPRACTICE CAUSES OF ACTION

Common causes of action in medical negligence and medical malpractice include:

• Failure to obtain informed consent: a physician must obtain informed consent from a patient before performing any treatment on the patient. Consequently, physicians have certain duties of disclosure (stemming from both the common law and from statute) to their patients, including the duty to disclose:
  • the “material, special, or unusual” risks of treatment¹Hopp v Lepp, [1980] 2 SCR 192 at 210.;
  • the risks which may be unique to each particular patient; and
  • any treatment alternatives (including no treatment).

If a Practitioner fails to obtain informed consent from a patient, whether by failing to disclose all necessary information or otherwise, then that Practitioner may be liable for any injuries sustained by the patient, regardless of whether the Practitioner was negligent in carrying out their duties.

• Failure to meet the required standard of care: although Practitioners are not held to a standard of perfection²Lapointe v Hopital Le Gardeur, [1992] 1 SCR 351 at 362-363., they are required to meet the standard of care of their profession, taking into account the Practitioner’s specialty, location, and resources, as well as other relevant circumstances.
  • the courts have consistently stated that medical practitioners must bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care;
    • The test for determining standard of care is reasonableness: what would be expected of a normal, prudent practitioner of the same experience and standing?³Sylvester v Crits et al., 1956 CanLII 34 (ON CA); Cuthbertson v Rasouli, [2013] 3 SCR 341 at para 110.;
  • Standard of care is a fact-based determination, taking into account the unique circumstances of each case. In most cases, determining the appropriate standard of care requires input from experts who have similar qualifications or backgrounds as the defendant Practitioner. Judges do not have the expertise required to make this determination and rely on the opinions of medical experts who can speak to the level of care that would be expected in the circumstances.
  • Courts distinguish between errors in judgment and negligent conduct – An error in judgment can be distinguished from a negligent act of unskillfulness, carelessness, or lack of knowledge⁴Wilson v Swanson, [1956] SCR 804.; If a Practitioner exercises reasonable care in carrying out their duties but still made an error in judgment, the Practitioner would likely not be found negligent.
  • These sorts of claims are the most common claims brought against Practitioners. They can arise from a Practitioner incorrectly performing a procedure, failing to provide an appropriate diagnosis or treatment, failing to follow appropriate medical protocols or procedures, or any other failure to meet the standard of care required of them.

• Breach of fiduciary duty: some Practitioner-patient relationships are fiduciary relationships, but medical negligence on its own is not considered to be an automatic breach of the Practitioner’s fiduciary duty (and will rarely be a breach of fiduciary duty by itself)⁵Arndt v Smith, [1997] 2 SCR 539 at para 38.:
  • The special relationship of trust and confidence between doctor and patient gives rise to specific duties, including:
    • the duty to act with utmost good faith and loyalty; and
    • the duty to hold information received from or about a patient in confidence⁶McInerney v MacDonald, [1992] 2 SCR 138.

These duties are also codified in legislation, including in the Health Information Act⁷RSA 2000 c H-5. and in the various regulatory documents that govern medical professionals. When one of these particular duties is breached, and when an element of exploitation or predation motivated by self-interest is found on the part of the Practitioner, a court may find a breach of fiduciary duty.

MEDICAL MALPRACTICE CASES IN CANADA

Medical malpractice claims do not occur in Canada as frequently as they do in the United States, and when they do, the monetary awards are often much lower. The infrequency of medical malpractice cases is due to several reasons.

First, plaintiffs are limited in their recovery for some damages. General damages, also known as non-pecuniary damages or, more colloquially, as pain-and-suffering damages, are intended to compensate a plaintiff for the unquantifiable loss they have suffered as a result of their injury. This is distinguished from pecuniary or quantifiable damages, which would include losses like lost wages for having missed work or costs of treatments for the injuries. The Supreme Court of Canada (“SCC”) imposed a limit on the award of non-pecuniary damages (i.e. damages awarded for pain and suffering) in a trilogy of cases in 1978 involving catastrophic injuries to plaintiffs⁸Andrews v Grand & Toy Alberta Ltd., [1978] 2 SCR 229; Arnold v Teno, [1978] 2 SCR 287; Thornton v School Dist. No. 57 (Prince George) et al., [1978] 2 SCR 267.. At the time, the limit was set at $100,000. It has been adjusted to account for inflation and the current maximum amount a plaintiff can recover for general damages is $401,709.

Another reason for the relative infrequency of medical malpractice cases in Canada is the financial expense and challenge presented in bringing a medical malpractice claim against a physician (who is being defended by the CMPA), which has often been likened to a “David vs. Goliath” scenario for injured plaintiffs. The CMPA is well-funded and vigorously defends physicians against medical malpractice claims. Claims against other Practitioners bring similar challenges.

These are just some reasons why retaining an experienced medical malpractice lawyer who understands how to navigate the judicial system (including the stringent evidentiary requirements for establishing a claim, as well as satisfying limitations issues which could prevent a successful claim) is crucial to ensuring the success of a plaintiff’s medical malpractice claim when a patient has been injured by a medical malpractice event. An experienced lawyer can assist an injured plaintiff in achieving a sufficient settlement or judgment due to a medical malpractice event.

Carscallen LLP’s Insurance and Tort Liability Expertise

Our team of insurance and tort liability lawyers has a range of experience in all types of negotiation, litigation, and mediation in the area of insurance and tort liability, including medical malpractice claims, and can bring an effective compromise to any dispute. Our team’s expertise in this area helps to ensure that claims and disputes are settled quickly, with fair and reasonable compensation. Our familiarity with the insurance industry allows us to assess the likelihood of bringing claims to resolution and to structure them in a way that streamlines their progress through to settlement. Where compromise is not possible, we have the experience necessary to successfully represent clients at all levels of court and before any administrative tribunal or mediator. Please contact any member of our insurance and tort liability group for any insurance law, personal injury or tort liability questions or matters you may have.

• 1
  Hopp v Lepp, [1980] 2 SCR 192 at 210.
• 2
  Lapointe v Hopital Le Gardeur, [1992] 1 SCR 351 at 362-363.
• 3
  Sylvester v Crits et al., 1956 CanLII 34 (ON CA); Cuthbertson v Rasouli, [2013] 3 SCR 341 at para 110.
• 4
  Wilson v Swanson, [1956] SCR 804.
• 5
  Arndt v Smith, [1997] 2 SCR 539 at para 38.
• 6
  McInerney v MacDonald, [1992] 2 SCR 138.
• 7
  RSA 2000 c H-5.
• 8
  Andrews v Grand & Toy Alberta Ltd., [1978] 2 SCR 229; Arnold v Teno, [1978] 2 SCR 287; Thornton v School Dist. No. 57 (Prince George) et al., [1978] 2 SCR 267.