Something went wrong in your care. A diagnosis was missed, a surgery had complications, a medication was prescribed that should not have been, or a hospital discharged someone who was not ready to go home. You are left with harm that you did not expect, and a growing sense that it should not have happened. The first question most people ask is whether they have a case. The honest answer is that a bad outcome, on its own, is not a claim. What matters is whether the care fell below the standard the law requires, and whether that failure is what caused the harm.
Medicine involves risk, and the law accepts that
Every treatment carries some chance of a poor result. Surgeries have known complication rates. Some conditions are hard to detect early even with careful attention. A physician who does everything a competent colleague would have done can still have a patient who ends up worse off. Ontario courts do not treat that as negligence, and a claim built only on the fact that the result was bad will not succeed.
This is worth understanding at the outset, because it shapes what a medical malpractice claim actually has to establish.
The three things a claim must prove
- The standard of care was breached. The question is not whether the care was perfect, or whether another doctor might have done something different. It is whether the care fell below what a reasonable, competent practitioner in the same field would have done in the same circumstances. A family physician is held to the standard of a reasonable family physician. A surgeon is held to the standard of a reasonable surgeon in that specialty. Hospitals and nurses are held to their own standards. That standard is proven through expert evidence: a court needs a qualified practitioner in the same discipline to review the records and explain where the care went wrong. Without that opinion, a claim cannot proceed.
- The breach caused the harm. This is often the harder part. It is not enough to show that a mistake was made. You have to show that, but for the mistake, the harm would not have occurred, or would have been materially less. If a cancer was diagnosed six months late but the treatment options and prognosis would have been the same either way, the delay may have been negligent without being the cause of the loss. Causation is also proven through expert evidence, and it is where many claims that seem obvious at first turn out to be difficult.
- The harm is significant. Medical malpractice litigation is expensive, slow and heavily defended. A claim needs to involve real, lasting harm to justify the process. Temporary discomfort or an outcome that resolved fully is unlikely to support a claim even where an error occurred.
Informed consent is a separate question
Some claims are not about how the treatment was performed but about what the patient was told beforehand. A physician has a duty to disclose the material risks of a procedure and the reasonable alternatives, so that the patient can make an informed decision. If a risk that should have been disclosed was not, and a reasonable person in the patient’s position would have declined the treatment had they known, a claim may exist even where the procedure itself was done properly.
What a complaint to the College does and does not do
Many people start with a complaint to the College of Physicians and Surgeons of Ontario, or the equivalent regulator for nurses or other professionals. That process can be worthwhile. It can result in findings about the practitioner’s conduct and, in some cases, discipline. It does not, however, provide compensation. The College’s process and a civil claim run separately, and a College finding is not a substitute for proving negligence in court.
An apology is not an admission
Ontario law provides that an apology by a health care provider is not, by itself, an admission of liability and is not admissible as proof of fault. Do not assume that because a physician said they were sorry, the claim is proven. Equally, do not assume that because nobody apologized, nothing went wrong.
Why these cases take time
Physicians in Canada are defended by a national organization that funds a full defence in almost every case. Hospitals carry their own insurers. Neither settles a claim simply because the outcome was poor. A medical malpractice claim generally involves obtaining complete records, having them reviewed by an independent expert before a claim is even started, and then litigating against defence experts of equal standing. It is not unusual for these cases to take several years. We walk through each stage in our post on how a medical malpractice claim works.
What to do now
Request your complete medical records from every provider involved. You are entitled to them under Ontario privacy law, and they are the foundation of any assessment. Write down, while it is fresh, a timeline of what happened and what you were told at each stage. Keep receipts and records of expenses and lost income. And get advice early, because the limitation period runs from when you knew or ought to have known that the harm was caused by the care, and disputes over that date are common.
How we can help
At Kabir & Alam, we review medical malpractice matters carefully before recommending a claim, because we would rather tell you early that a case is unlikely to succeed than take it forward without a realistic path. If you believe your care fell short, read more about our medical malpractice practice or book a consultation with us.
This post is general information about Ontario personal injury law and is not legal advice. Every case turns on its own facts. Speak with a lawyer about your situation before making decisions.