At the most basic level, a medical malpractice claim begins when someone is harmed in the course of receiving treatment from a healthcare professional and seeks compensation through the legal system. While it is easy to understand that medical negligence happens – and that its consequences can be extremely serious – the process of pursuing a claim in this area of law is far more complex. Medical malpractice cases have a unique anatomy made up of many interlocking parts. A successful plaintiff must know how each part relates to their situation and must be constantly mindful of the difficulties surrounding evidence and proof.
Although there are many important distinctions, it is important to remember that medical malpractice is a specific type of negligence claim. There are four crucial parts of a claim in negligence, which will be explained in greater depth below:
- The defendant(s) fell below the accepted standard of care.
- The defendant(s) had a duty of care in relation to the person (or people) they injured.
- The defendant(s) caused the harm that was suffered in the aftermath of the incident.
- The plaintiff suffered legally recognized damage.
Each of the above elements of a negligence case in general – and a medical malpractice case in particular – sounds simple but requires a significant amount of knowledge and experience. In what follows, each of these aspects of a potential case will be discussed both in terms of its legal meaning and particularly in light of how it might affect a case in medical malpractice.
- The Standard of Care
The cornerstone of negligence is the “standard of care” requirement, which asks whether an improper act or omission occurred. There is a baseline standard that must be attained in any activity that puts others at risk. Where this is not met, a cause of action begins to form.
It is not negligent to be imperfect. Instead, the test is what the reasonable person would do (or not do) in the relevant situation. While this sounds easy to understand, the so-called “reasonable person” has been the subject of considerable debate. In many negligence cases, there are real questions surrounding whether the defendant acted unreasonably. Given that this word means different things to different people—and can vary considerably across cultures, customs, and professions—it is worthwhile to understand how a court is likely to assess the reasonableness of a defendant’s actions.
At the outset, the standard of care question can be partially defined by what it is not. It is an objective, as opposed to a subjective, inquiry.1 This means that someone’s individual capacities and abilities are largely irrelevant to determining whether they met the standard of care. So long as there is no legal disability or incapacity, the law of negligence is unconcerned with what the defendant thought or whether they were, for instance, naturally clumsy or careless. As an objective standard, the reasonable person test asks whether a person, who “the law presumes or requires … to possess ordinary capacity to avoid harming his neighbors,”2 acted reasonably in the circumstances.
As such, the reasonable person depends greatly on context, which is perhaps best demonstrated by way of example. In the famous Canadian case of Vaughan v. Menlove, the Court was faced with an unusual standard of care question: Does a reasonable person build a haystack on the edge of their property?3 This question arose out of the surprising ability of hay to spontaneously burst into flames when stacked improperly. When the Defendant built his haystack improperly and it did, in fact, combust on the edge of his property—burning down the Plaintiff’s cottages on neighbouring land—the Court decided that this storage method was unreasonable. The normally sensible person, it is said, does not create a fire risk adjacent to someone else’s property.
Standard of Care in the Medical Context
In medical cases, the reasonable person becomes the reasonable physician, the reasonable healthcare professional, or the reasonable hospital administrator. They will be judged in relation to their professional colleagues. The question, as it pertains to physicians, was formulated by the Ontario Court of Appeal more than 50 years ago. A doctor is expected to know more about your health than the average person. The law takes their years of training and experience into consideration.
It is important to note, however, that doctors are not expected to be perfect. The standard of care provides a range of possible actions. There are likely better and worse choices for a doctor to make but choosing one that is not ideal is not necessarily negligence. In many cases, for instance, a surgeon will have several reasonable options, which might include immediate intervention, a more conservative management approach, or something else altogether depending on the patient’s risks. Medical care is often inherently risky, and there are many factors that will be considered in reaching what is often called a ‘clinical judgment decision.’ So long as the doctor makes a reasonable decision, they have met the standard of care.
Medical Expert Evidence
Since the question of whether a doctor breached their duty to a patient is more complex than simply asking whether a mistake was made, you may wonder how a lawyer or judge can determine whether a doctor acted reasonably. The answer is simple: Medical malpractice cases are driven by expert medical evidence. This is true at various points of the process, but in terms of the standard of care, this means that a plaintiff must hire a medical expert to comment on their case. Beyond the fact that legal professionals are not doctors – and, so, will rely upon medical specialists to understand the facts of their case – using expert evidence to support your claim of medical malpractice is also a legal requirement.
In 1995, the Supreme Court of Canada held that “courts do not ordinarily have the expertise to tell professionals that they are not behaving appropriately in their field.” As a result, where an allegation of medical malpractice is “beyond the ken of the average juror,” expert evidence is required. In practice, this is required in virtually every case where a doctor or hospital is sued. While it is easy to see how medical expertise is helpful in determining whether a physician acted appropriately, this requirement also raises the costs associated with pursuing a medical malpractice claim. Whether or not this is fair, a successful plaintiff must generally find a medical expert to provide evidence on the breach of the standard of care.
The fact that expert evidence is required on the standard of care does not tell a plaintiff which expert to retain. Medicine is, after all, an extremely varied profession – for example, a family doctor would not be a legally recognized expert on neurosurgery. As a general rule, when looking for an expert to comment on whether the defendant fell below the standard of care, you will look for the same type of medical professional you are suing. In other words, where malpractice is alleged against an oncologist, you would need an independent oncologist to assess the care and give an opinion on whether or not it was reasonable.
Where multiple physicians are sued, multiple experts are required and their expertise must match, or at least be similar to, the practice area(s) of who you are suing. This is also true of hospitals, but the exact nature of the expertise depends on the nature of the claim against the hospital. If you claim that the hospital staff (i.e., hospital employees other than doctors) was negligent, you will generally need a nursing or technologist expert to opine on the care received. One common example is inadequate monitoring of a patient in the hospital. In that case, you will require an independent nurse to give an opinion on whether it was below the standard of care. Similarly, when the systems, equipment, or technology of the hospital are allegedly negligent, the plaintiff must retain an expert on hospital systems to give their opinion on the reasonableness of those mechanisms.
- The Duty of Care: A Brief Summary
As discussed above, the successful plaintiff in negligence must prove four things. The first of which is a breach of the standard of care. The second is the existence of a “duty of care.” This means that the defendant has an obligation to take reasonable care to avoid harming you. If there is a breach of the standard of care, but that person did not owe you a duty of care, you cannot succeed in a negligence claim.
The nature of this requirement is best explained through an example. In the event of a motor vehicle accident, the driver has a duty of care to avoid hitting other people with their vehicle. So, if that driver is negligent and, as a result, hits somebody, they have breached their duty of care to that person. Everyone has a duty to people who we can reasonably expect to harm through our actions. If, however, this motorist startles a pedestrian by going too fast and that pedestrian later develops a nervous condition, it may be argued that no duty of care existed. The driver arguably has no duty to protect against causing that type of harm. In such a case, it would be argued that the harm is too “remote” – which is a legal term for an injury that falls outside the normal risk of an activity.
While proving the duty of care is an essential part of a negligence claim, it is rarely even argued in medical malpractice. This is because it is already accepted that doctors, nurses, and hospital staff owe a duty of care to their patients and have an obligation to treat them with reasonable skill and diligence. Defendants will not generally argue that no duty of care was owed to a patient because that argument has already been declared incorrect by our courts.
It is well-settled that a doctor owes their patient a duty of care even where that patient is unconscious.8 There is no lesser expectation for physicians to act in the best interests of their patients when they are in this vulnerable situation. The test remains the same: We require medical professionals to use reasonable skill and judgment.
In some circumstances, a doctor may also owe a duty of care to someone other than their patient. The test is said to be one of a “requisite proximity of relationship.”9 While that language may appear confusing, it simply means that health professionals must follow the same rule as everyone else: If your actions may foreseeably cause harm to someone if performed negligently, then there is generally a duty of care that requires you to be careful and avoid causing foreseeable injuries.
- The Causal Relationship
The third requirement that every successful plaintiff must prove in a negligence case is called causation. This means that the improper acts of the defendant must have caused the harm that ensued. In other words, if you receive negligent treatment, but the outcome would have been the same either way, you cannot succeed in medical malpractice. While the idea itself is relatively simple, this is generally the most difficult element to prove in a claim for medical negligence.
Causation is a complex area of the law because there are many competing ideas about how we determine whether one event caused another. In Canada, courts address this question using the “but for” test – or the “counterfactual” method of assessing a causal link. Simply put, this means a judge will examine the alleged negligence and ask, “but for” that event – i.e., if the negligence had never happened – what would the outcome look like? If the court determines that, in a hypothetical world where the negligence never occurred, the plaintiff is in the same position, causation is not established and the claim fails.
Sometimes, the causal link is obvious. Things are rarely so simple in medical malpractice. When health and treatment are involved, there are almost always questions about whether some or all of the harm would have happened even if the medical care was reasonable.
Consider, for instance, the famous case of Barnett v. Chelsea & Kensington Hospital Management Committee.10 The Plaintiff in that case was the wife of a man who drank tea that had been contaminated with arsenic. He sought medical attention but was promptly dismissed from the hospital and told to go home. He died shortly thereafter from the poison. While sending this man home clearly breached the standard of care, the claim failed on causation. Even if the husband was admitted and a physician was called immediately, by the time arsenic poisoning was diagnosed and the antidote was administered, it would have been too late. The man would have died in any event, so the negligence did not cause the death.
This is a clear example of an unfortunate reality – substandard medical care does not always equate to success in medical malpractice. The plaintiff must prove it is more likely than not that the negligence caused their injuries, and that simple sounding requirement can quickly become problematic in medical treatment. In cases where there is a delayed diagnosis of cancer, for instance, the plaintiff will face an uphill, and arguably unfair, battle. Remember, it is not enough to show that, in this example, there was negligence. The plaintiff will have to prove that the exact delay from the time the doctor should have diagnosed her to the time it was caught is what caused the injuries. You need to prove that your delayed diagnosis of the precise type of cancer you have caused the exact injuries you are suing for. Those are the only injuries for which you will receive compensation.
Experts in Medical Causation
In medical malpractice claims, there is usually significant debate about whether the negligence caused the harm. In situations as diverse as surgical error, poor obstetrical care, and failure to get informed consent, there will likely be at least some argument from the defendant that some or all of the injuries would have happened in any event. These arguments are fought with medical expert evidence. A plaintiff must retain another expert to comment on whether the breach of the standard of care caused their injuries. The type of expertise required depends on the circumstances underlying the case, but it will almost certainly be from a different medical subspecialty than the expert hired to comment on the standard of care.
Take, for instance, the case of someone who presents to their family doctor with a “thunderclap” headache (i.e., the sudden onset of their worst ever headache). Often, this is grounds for immediate testing, as there could be a hemorrhage that needs prompt treatment. Where the family doctor simply dismisses the patient and an aneurysm bursts causing severe harm, the ensuing medical malpractice case will require several different experts. You may remember that the expert for standard of care should match the defendant’s specialty, so, here, you would hire an expert family physician to determine whether the defendant family physician was negligent by not testing for the brain bleed. For causation, however, you would need to hire a neurologist or neurosurgeon – someone capable of explaining what the bleed in the brain did to that person and the injuries that were caused by the delayed treatment.
The more general rule is that you need an expert in the area of the harm that was caused – so, a neurologist where a brain injury occurs, a cardiologist or cardiothoracic surgeon where harm was done to the heart, etc. Much like the standard of care expert, it can be difficult and expensive to find the right expert to provide an opinion and write a report, but this remains an important part of advancing your claim. Causation will often be a major battle in your medical malpractice claim, but with highly trained lawyers who work in this field exclusively, and the right experts giving a supportive opinion, it is not an insurmountable obstacle.
- Legal Harm
The last element you must prove in a medical malpractice claim, and negligence more generally, is the presence of harm. While that sounds obvious – few would sue if they had not been injured in some way – there is a separate, legal definition of harm that must be considered before pursuing a case. Given the need for costly experts, along with the fact that medical malpractice claims generally extend over a period of several years from the date of filing to any resolution, it is important at the outset to perform a cost/benefit analysis of the case. In other words, we always keep your interests in mind by screening heavily to ensure that there are legally recognized harms in your case, and that they will be compensated enough that, if you win, the pay-off is worth the time, expense, and risk of litigation.
Legal harm simply means that your injuries would be recognized by a court and could ground a successful result at trial. You can seek compensation for either physical or psychological injuries, but there are important factors to consider when deciding whether you can prove legally recognized harm that is substantial enough to justify moving forward with your case.
When determining whether you have suffered legal harm, there are two main things to keep in mind. First, the only thing you can gain in a medical malpractice case is money, so when assessing whether or not a case is worth pursuing, it is important to ask how a court would value the injuries you have suffered. If, for instance, you experience several sleepless nights after a medical error incorrectly diagnoses you with terminal cancer, you have suffered an injury in the ordinary meaning of the word, but you are unlikely to receive much, if any, compensation from a court.
In Canada, we calculate the monetary value of an injury based on a system called restitutio in integrum, which is a Latin phrase for the idea that the person who negligently caused your injuries must restore you to the place you were in before, to the extent that money can do so. Like many legal concepts, this sounds simple, but it can be challenging to assess in practice. Money, after all, is an imperfect way to make you whole after a catastrophic injury.
It may be helpful at this stage to distinguish between two terms that are often used in the legal community. Harm is what you have suffered when you can prove a breach of the standard of care caused your injuries. A “damage award” is what you are likely to receive as compensation for those injuries. That award is calculated based on the above formula – restitutio in integrum – which is broken into several different categories explained below. Essentially the law assesses the harms you have suffered and provides a damage award that has various components, each aimed at putting you back in your original position in terms of the various ways the injury has affected you.
Past and Future Cost of Care
In medical malpractice, one common category of your damage award (often called a “head of damage”) is called past and future cost of care. As the name suggests, this is the amount of money a court would award to cover the costs of your treatment and therapies for recovery, as well as to manage your symptoms. It also includes things like prescriptions and assistive devices you may require. The basic rule, as mentioned above, is that if someone negligently causes an injury, they should have to pay the full costs of putting you back in your original position. As a result, if negligent medical care injures you in a manner that requires treatment, the negligent party will have to pay for it.
Obviously, your “past cost of care” refers to the treatments you have received up to the current date. If successful at trial, you would be reimbursed for the money you spent on treatments, prescriptions, and other medical necessities related to the injuries caused by the malpractice. The “future cost of care” calculation is more difficult. Even where your injuries and prognosis are known, it is impossible to predict your future course of treatment with absolute certainty. Depending on the type of injury you have, this may require further expert evidence to establish your most likely path forward; in other cases, you will simply try to project your needs forward.
Remember, the law will only compensate you to the point where you are placed back in your original position prior to the incident, which generally means a reduction of your care costs as you age. The rationale is that, unfortunately, as we age, we become likely to need medical intervention in any event; both a healthy person and someone severely affected by medical malpractice are both vulnerable to the aging process. Whether your future care needs are assessed by an expert or put forward on a yearly estimate, multiplied by the number of years you are likely to require care, courts will generally avoid ordering a damage award that goes deeply into old-age.
An important benefit of this “restitutio in integrum” principle – where the law tries to put you back in your pre-injury position – is that cost of a therapy or medical device is not a factor in determining whether you will receive something. For example, if a doctor’s error causes you to lose your leg, your “cost of care” award might entitle you to several different prosthetic devices. You do not have to settle for just a single device if you can show how, for instance, some prosthetic legs will allow you to swim while another will enable you to run as you once did. The test is not whether a treatment or device is “good enough” to treat your injury; it is about putting you back to where you were, to the fullest extent that money can do so.
Past and Future Loss of Income and Earning Capacity
When someone is injured in a medical malpractice incident, there is often a period of significant financial hardship. Not only do you need to pay any treatment costs that insure will not cover – you may also be unable to work. Since the goal of the law is to put you back to the position you were in before the negligence, a second major component of your damage award is likely to include compensation for lost wages.
It is important to note the distinction between loss of income and loss of earning capacity. Loss of income refers to a precise calculation that can be made on your behalf for worktime missed as a result of your injury. It is usually assessed as “past loss of income” where, for instance, you were scheduled to work for a period of time and then miss those shifts because of the injury or treatment for it. Loss of earning capacity, on the other hand, is more of an estimate. It refers to your reduced ability to earn money after the malpractice. Where negligent medical care results in a brain injury, for example, you may have a claim for loss of future earning capacity if you can no longer do the job for which you were trained.
These calculations may require the use of an expert called an actuary, which will be discussed later. At this point, the important thing to remember is that the perpetrator of the medical malpractice has to restore the injured victim to their previous position – and that includes the money they would have made if the negligence never happened. If you are forced to miss work while you recover, then the person who negligently injured you will generally have to pay your salary during that time. If the injury is such that you can never return to your old job, or advance in your career as you would have done, you may even have a claim for the money you likely would have received as your career would have progressed. Like everything in a medical malpractice case, the plaintiff must prove that these damages exist. Where you were working at the time of the injury and can no longer do so, however, any damage award you receive is likely to include a component for lost wages.
Loss of Valuable Services
Another loss you may experience in the aftermath of a severe medical injury is an inability to do work around your house. Everyday tasks like housecleaning, doing the dishes, mowing the lawn, and cooking dinner often become difficult or impossible after a medical malpractice incident. As a result, the law’s commitment to returning victims of negligence to their previous position is expressed in this context by a category of damage awards called “loss of valuable services.” If you can no longer do the work you once did to maintain your property or perform routine chores, these damages are awarded to allow you to pay someone to do those tasks for you.
Much like cost of care and lost earning capacity, this type of damage award can be hard to put an exact figure on. It can be hard to predict how long you will need assistance and the price of the labour you will need to hire. In many cases, this award is confined to more physically demanding chores, like clearing snow or deep cleaning, but the extent of the award depends on the injury suffered due to the malpractice.
Pain and Suffering
Perhaps the best-known part of a damage award for a medical malpractice incident is called “pain and suffering,” otherwise known as “general damages” within the legal community. This part of an award is different from all others in several respects. First, it is not meant to quantify an exact type of loss. Unlike your care costs or lost income, courts are not trying to value your pain and suffering to replace something exact. Instead, this award is meant to compensate you for the pain, stress, and inconvenience caused by the negligence.
Secondly, and unlike other types of legal compensation, pain and suffering awards are subject to the “general damages cap” in Canada. In 1979, the Supreme Court of Canada decided that the most anyone could receive for pain and suffering was $100,000. While that seems like a lot of money, it is important to remember that (a) very few people will ever get close to the limit and (b) that amount of money becomes far less substantial when you are so injured you can no longer enjoy your former leisure activities, or when you face a life of constant pain, mobility issues, or cognitive challenges. Since 1979, that amount has been adjusted for inflation, which brings it to around $380,000 in today’s dollars, but that amount is reserved for the worst imaginable injury – generally a situation where, for instance, a baby has been permanently hurt and will be paralyzed for life.
Finally, unlike most other components of a damage award, general damages are calculated on the basis of precedent. For things like cost of care, the court will not consider what other people have claimed, since everyone’s care needs are unique. With pain and suffering, courts will be persuaded by looking at other decided cases to see what another judge ordered in a similar situation. These amounts can vary drastically depending on which jurisdiction your case resides within.
Other Components of Your Damages Claim and Damage Experts
The above components of a damage award in medical malpractice are not exhaustive. Depending on the circumstances, you may have fewer than those listed above, and you may have more. Other examples include “punitive damages,” where you claim that the court should punish the defendant for conduct that was so horrible that it deserves extreme consequences, and “out-of-pocket expenses,” where you claim miscellaneous out of pocket costs you would not have incurred but for the negligence complained of. At Wagners, we have decades of experience in this area, which will help identify both the areas of harm you can claim and the experts you may need to be successful.
In situations involving severe damages where home modifications or ongoing therapies are required after a medical error, the plaintiff will need an Independent Medical Evaluation or a Life Care Plan. The first type of report simply involves having an objective doctor assess your condition and write a report of your diagnoses and symptoms. A Life Care Plan is generally written by a rehabilitation specialist who will outline your future needs in terms of assistive devices and treatments, and will project your future needs after consulting your records and performing an assessment of your condition. Similarly, some cases may require expert reports on things like home modifications, which may be necessary to put the injured patient back in their pre-negligence position. If you have mobility problems, for instance, the cost of an accessible kitchen or washroom may be part of your claim.
In these claims, you may also need an expert called an actuary to assess your damage award. Actuaries have special mathematical and statistical training, which allows them to put a current price of future, uncertain costs. Their work is complex, but it involves accounting for the interest rate you might benefit from if you gain a lump sum of money, and they will also take the job market and your skillset into account when they estimate how much you would have made over an entire career.
Ultimately, the question of legal harm is a lot more complex than it might appear when you begin trying to claim compensation for your medical malpractice injuries. It is an area full of legal rules and can often require expert evidence to establish your entitlement to a given sum of money. By understanding the often complicated ways a court will try to calculate the damage award, the malpractice team at Wagners will provide advice and experience at every step of this process.
Wagners Law Firm offers it’s services in Halifax and throughout Nova Scotia. For more information, please visit https://wagners.co/. Wagners Law Firm would like to thank online marketing agency dNovo Group https://dnovogroup.com/ for help with this article.
Lyndsay C. Jardine
Barrister & Solicitor
1869 Upper Water Street, Suite PH301, Historic Properties
Halifax, NS B3J 1S9 Canada ׀ www.wagners.co