How Does a Medical Malpractice case proceed in Canada

If you feel that you are a victim of medical malpractice, please contact a medical malpractice lawyer at once. A lawyer’s help will be needed, because Canadian law, the insurance industry, and the healthcare industry make medical malpractice lawsuits extremely difficult.

Medical malpractice is widespread in Canada. The Canadian Medical Association Journal has reported that over 87,000 patients in Canada have suffered from an ¨adverse event¨.  An adverse event is essentially a medical mistake or poor outcome.  While adverse events do not always mean there was negligence, they may be the result of system failures or substandard medical care.

What defines Medical Malpractice?

Medical malpractice occurs “when a patient sustains injury or harm because a medical professional or a healthcare facility is medically negligent and has not provided the professional, generally accepted standard of medical care.¨  In other words, when a medical professional or healthcare facility fails to provide the accepted professional medical standard of care, causing harm to a patient, that professional or facility is medically negligent.

Not all mistakes that are made by healthcare providers are able to fall under medical malpractice.  Mistakes that occur during surgery – such as amputating the wrong limb or removing the wrong organ – are the cases that make the news, but these types of surgical errors are very rare. Prescription errors, misdiagnoses, and birth trauma are more common, and they pose a threat to everyone.

Healthcare professionals are required to…

The standard of care is the necessary type and level of care that a medical provider with similar professional training and experience would offer in a similar situation. If a medical professional or facility did not meet the standard of care, causing you injury, then you may be a victim of medical malpractice. Healthcare professionals are legally obligated to provide a reasonable standard of care. Medical professionals should be professional, and provide competent care and treatment that is comparable to what other healthcare providers would offer in the same situation.

At what point does Medical Negligence become Malpractice?

Medical malpractice happens once medical negligence reaches a point that it is the direct cause of a patient’s harm or injury. In the worst cases, a patient could be seriously injured and/or experience a rapid, alarming deterioration of his or her medical condition. Medical malpractice claims need to be scrutinized closely from both the legal and medical angles. If you and your lawyer can prove that the medical malpractice has caused you significant injury or harm, you could be entitled to compensation.

When you and your medical malpractice lawyer do decide to pursue a medical malpractice claim, the process will begin with filing a lawsuit. A lawsuit does not necessarily mean there will be a medical malpractice trial, as many medical malpractice cases are resolved outside of the courtroom. Wagners’ medical malpractice lawyers will fight for you and negotiate privately on your behalf from the beginning of the process for an acceptable out-of-court settlement.

The process of filing a medical malpractice lawsuit starts with filing a statement of claim with he court. That statement identifies the injured party, who would be then referred to as the ¨plaintiff¨ and the negligent medical provider in question as the ¨defendant¨. In some instances, medical malpractice claims can name multiple plaintiffs and/or defendants. Once this step is completed the defendant must then file a response, called the Statement of Defense.

The Discovery Process

The next step is the discovery process. At this point in the lawsuit, both sides disclose their evidence and documents to the other party.  Oral evidence is also provided by some parties.

Medical malpractice claims rely heavily on expert evidence.  Medical experts provide evidence as to the standard of care in the circumstances, as well as how the substandard care caused your injuries. Wagners’ medical malpractice lawyers have strong relationships with medical experts across the country.  Your lawyers will find the experts needed to advance your claim.

Following the discovery process, the parties can agree to the mediation process.  This provides a structured way for both parties to discuss and seek resolution. If the parties do not settle the case privately or through mediation then the case may go to trial.

In the event that the case does go to trial, the plaintiff must prove three things to be successful:

  1. The Standard of Care – Your lawyer must prove that the defendant had failed to meet both the legal and professional standard of care. The question of negligence largely is dependent on whether the care provided was reasonable in the circumstances.
  2. Causation – Your lawyer must prove the negligence caused the injury or harm that you sustained. If your condition would be the same if the medical negligence had not happened, or you’ve suffered no harm because of it, you will not be compensated.
  3. Damages – Finally, your lawyer must be able to prove that you suffered losses. Economic losses include medical expenses and lost wages or other lost income (both past and future). Non-economic damages include unnecessary personal pain and suffering.


If the plaintiff is successful, a judge or jury will order a medical malpractice defendant to pay compensation to a victim of malpractice.

In some instances, the unsuccessful party at trial has the right to appeal the verdict to the Nova Scotia Court of Appeal and from there even to the Supreme Court of Canada.

Contact a Medical Malpractice Lawyer

Medical malpractice cases are challenging to advance, and require the services of an experienced medical malpractice lawyer. If you would like to discuss your medical negligence claim, Wagners’ medical malpractice lawyers offer free consultations, and have the expertise necessary to assess your situation.

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