You have decided that what happened to you or a family member deserves a closer look. Perhaps a lawyer has told you there may be a claim. What comes next is a process that looks very different from a car accident case or a slip and fall, and it helps to know the shape of it before you begin. This post walks through the stages of a medical malpractice claim in Ontario and the features that make these cases distinctive.
Stage one: the records
Nothing can be assessed without the complete medical record. That means hospital charts, nursing notes, physician office records, imaging, lab results, consultation reports and, where relevant, ambulance and pharmacy records. Under Ontario’s health privacy legislation, you are entitled to copies of your own records, and a substitute decision-maker or estate trustee can request them on behalf of someone who cannot.
Records requests often take weeks, and hospitals may charge for copying. It is worth requesting them immediately, before any decision about a claim, because the record is what an expert will assess and what the limitation period analysis will turn on.
Stage two: the expert review
A medical malpractice claim cannot be evaluated by a lawyer alone. The question of whether care fell below the standard is a medical one, and courts require an opinion from a practitioner in the same field. Before a claim is started, the records are sent to an independent expert, usually a physician practising in the relevant specialty outside the defendants’ circle, who reviews them and provides an opinion on two things: whether the standard of care was breached, and whether the breach caused the harm.
This step costs money and takes time, often several months. It is also the single most important gate in the process. If the expert cannot support the claim on either standard of care or causation, the claim should not be started. A supportive opinion is what turns a concern into a case.
The limitation period
In Ontario, a claim must generally be started within two years of the day the person knew, or reasonably ought to have known, that they suffered harm, that the harm was caused by an act or omission of the defendant, and that a proceeding was the appropriate way to address it. In medical cases, that date is frequently contested. A patient may not know for months that a complication was avoidable, or that a diagnosis was missed, until another physician tells them. There is also an ultimate limit of fifteen years from the date of the act or omission, regardless of discovery, with narrow exceptions.
Because the discovery date is so often disputed, the safe course is to treat the two years as running from the date of the treatment or the adverse event, and to get advice well before that. Special rules apply for minors and for people who lack capacity, and for claims brought on behalf of someone who has died. Our post on limitation periods covers these rules in more detail.
Who is on the other side
Physicians in Canada are members of the Canadian Medical Protective Association, which is not an insurer in the ordinary sense. It is a mutual defence organization with substantial resources, and it funds a complete defence of its members in nearly every claim. Hospitals are separately insured and defended. Nurses, midwives and other professionals have their own arrangements.
The practical effect is that medical malpractice claims are defended thoroughly and rarely settle early. The defence will retain its own experts, and the case is typically decided on which side’s expert evidence a court finds more persuasive.
Stage three: the litigation
Once a claim is issued, the process follows the ordinary civil route in the Superior Court of Justice: pleadings, exchange of documents, examinations for discovery where each side questions the other under oath, expert reports, mediation, and, if no resolution is reached, a pre-trial conference and trial. Most claims resolve before trial, but many resolve late, after expert reports have been exchanged and the strength of each side’s position is clear.
It is realistic to expect a medical malpractice claim to take three to five years from start to resolution, and longer for complex cases. The cost of experts is significant, and how those costs are handled should be discussed with your lawyer at the outset.
What damages a claim can include
If liability is established, damages are assessed under the same heads as other personal injury claims: compensation for pain and suffering and loss of enjoyment of life, past and future income loss, the cost of future care, out-of-pocket expenses, and, for close family members, claims for loss of care, guidance and companionship under the Family Law Act. Where a person has died, the estate and the family have their own claims. Ontario’s health insurer also has a right to recover the cost of treatment caused by the negligence, which is advanced as part of the claim. We explain each of these in our post on how damages are assessed.
Complaints, inquests and other processes
A complaint to the regulatory College, a hospital’s internal review, and, in the case of a death, a coroner’s investigation or inquest, can all run alongside a civil claim. None of them provides compensation, but the findings and records they generate can be relevant. Your lawyer should know about all of them.
How we can help
At Kabir & Alam, we assess medical malpractice matters by obtaining the records and arranging an independent expert review before any claim is started, so that you know where you stand before committing to litigation. Read more about our medical malpractice practice, or book a consultation with us. If the treatment in question was more than a year ago, say so when you book.
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.