When considering starting a medical malpractice case, it is important to understand the legal tests that must be passed, and the evidence needed to prove your lawsuit.
1. Duty of Care: The initial step in the lawsuit involves establishing that a health care provider owed a duty of care to the injured patient. In most cases, a health care provider owes a duty to their patient to provide care and treatment that is within the accepted standards of practice of the health care provider’s profession.
2. Breach of Duty of Care: Next, it must be established that the health care provider breached their duty of care to the injured patient. When a health care provider breaches their duty of care, they fail to provide treatment that meets the accepted standards of practice. Proving there is a breach in the duty of care involves showing the health care provider either did something outside the accepted standards of practice or did not do something they should have done within the accepted standards of practice. By showing the health care provider failed in their duty to their patient, they will be found negligent in the treatment they provided.
3. Causation: In order to be successful in the lawsuit, there must be a causal link between the breach of duty of care and the harm or injuries the patient suffered. Proving a causal relationship between the negligent treatment and the patient’s injuries is accomplished by establishing the health care provider’s actions (or inactions) are a cause of the injuries, but not necessarily the sole cause of the injuries.
4. Damages/Injuries: There must be measurable damages from the patient’s injuries that were caused by the health care provider’s negligent treatment. These damages can include physical pain and disability, health care costs, medical expenses, lost wages, or other losses incurred due to the negligent treatment. If the patient did not suffer lasting physical harm, but there are concerns about the treatment, a complaint can be made with the College of Physicians and Surgeons of Ontario or the College of Nurses of Ontario.
5. Evidence: All cases are proven (and won) through the evidence. It is necessary to gather evidence to support the duty of care, the breach in the duty of care, causation, and damages/injuries. Evidence in medical malpractice cases includes testimony from the complainant (if possible), medical records, expert opinions through reports and testimony, testimony from family and friends and other individuals with firsthand knowledge, financial records, and other documentation to prove the claims in the lawsuit.
6. Burden of Proof: The person (or persons) starting the lawsuit has the burden of proving there was a duty of care that was breached, a causal link, and the patient’s measurable damages/injuries. Proving the case is established on a balance of probabilities which is the way a judge or jury makes decisions about the legal issues in the lawsuit. Proving the elements of the case on a balance of probabilities means that it is more likely than not to have occurred.
Disclaimer: This content is for informational purposes only and does not constitute legal advice. Consult with a lawyer for guidance specific to your situation.