Medical malpractice is one of the most complex personal injury cases. Aside from being adversarial, it’s also time-consuming. This is also apart from the fact that most of the medical malpractice cases in Canada are reviewed by the Canadian Medical Protective Association (CMPA). It would seem like you’ll file a lawsuit against someone who’ll review your claims. 

Fortunately, over the past three decades, various routes have opened for Canadian patients to resolve their complaints against their healthcare providers. However, while the number of complaints against healthcare professionals and the CMPA decreased, the claims and payouts have likewise dramatically declined as well. 

An investigative report published by the Canadian Broadcasting Corporation (CBC) revealed that even though the number of doctors has steadily increased, fewer patients sued their doctors for malpractice. Moreover, of the cases that get to court, only a handful are won. This is true in Alberta and the rest of Canada. 

Unfortunately, this is not surprising because a malpractice case is an uphill battle. In this complex and adversarial situation, you can improve your chances of securing a favourable decision by hiring a seasoned and reputable Alberta malpractice lawyer. 

Medical Malpractice in Alberta

Medical mistakes, such as removing the wrong organ or amputating the wrong leg, may make the news, but they rarely happen.

What’s more common are medical misdiagnoses and prescription errors. These pose a more significant threat since they could happen without you even knowing about them. 

Remember that not all mistakes committed by a healthcare provider constitute  medical malpractice. Then again, if the healthcare facility or the medical professional fails to provide medical care to the standard required of them, then they can be held liable for medical malpractice. 

Medical malpractice is when a patient sustains  an injury or is harmed because of the negligence of the healthcare facility or medical professional. For such an action to be successful, the patient must show that the care provided by the medical practitioner failed to meet the standard of care as required by doctors.

The necessary standard of care from a healthcare professional is one that a typical medical practitioner with comparable experience and training could offer in a given situation. If the medical professional or facility fails to deliver this standard, you can hold them liable for medical malpractice. 

Common Medical Malpractice Claims in Alberta

Medical malpractice is a complex area of the law and cases aren’t as frequent or as common as medical negligence in the United States. Additionally, when cases are filed, it often results in lower monetary rewards.

Here are some common malpractice claims handled by medical malpractice lawyers in Alberta:

Failure to diagnose or misdiagnose a medical condition

The doctor must make a diagnosis and inform the patient about it. If they can’t diagnose the problem, they are responsible for referring the patient to another doctor. The fine line between negligence and error in judgment must be ascertained. If the doctor made an erroneous diagnosis, it doesn’t automatically qualify as a negligent act so long as the required standard of care is observed. 

However, if the doctor did not follow the said degree of care, he could be liable for medical malpractice. The case of Webb v. Motta is an example of negligence tantamount to medical malpractice. In this case, the obstetrician failed to notice the caecum perforation, which lead to intra-abdominal abscesses, when the baby was delivered. As a result, 14 subsequent surgeries had to be performed before the mother was discharged.

The court held that the medical professional was negligent in his duty to make a diagnosis and was ordered to pay damages to the injured party. 

Failure to secure consent 

In the landmark case of Hopp v. Lepp, Chief Justice Laskin ruled that a doctor has to answer all the patient’s questions regarding the material risks of the procedure. However, the context must be considered in determining whether this standard was met. This case gave rise to the standard used to determine whether the doctor received informed consent from the patient regarding the medical procedure. Essentially, the doctor must  divulge all the necessary information about the procedure without being asked. 

This ruling was reiterated in the subsequent case of Reibl v. Hughes.  However, in this case, the modified objective test of informed consent was introduced. This time, informed consent came to mean divulging information a reasonable patient should know.  Furthermore, the case discussed the correct test for causation. Accordingly,  liability arising from malpractice will only attach when a patient in a similar situation would forgo the procedure if they were properly informed of its material risks. 

Breach of fiduciary duty

The relationship between the patient and the doctor is fiduciary in nature. The Supreme Court of Canada ruled that to assert the fiduciary nature of the relationship, there must be pieces of evidence that both parties mutually agreed that one of the parties has freely relinquished their self-interest and has assigned the other party to act on behalf of the former party. Put another way, the doctor must act to your benefit. 

The fiduciary nature of the doctor-patient relationship was emphasized in Norberg v Wynrib. In that case, the doctor was held liable for breach of fiduciary duty, as he engaged in a sexual relationship with the plaintiff and took advantage of her addiction to Fiorinal, which showed a complete disregard to the patient’s best interests.   

Seek the help of medical malpractice lawyers Alberta to lodge your complaint properly. 

Compensation and Medical Malpractice Lawyers Alberta

When you file a medical malpractice case, depending on the kinds of injuries you sustained, you can request the court for different types of damages. While you can ask the court for all types of damages, make your claims conscionable, as they could be significantly reduced if the court finds them exorbitant. 

Here is an exhaustive list of the damages you can claim.:

• General damages: This is also known as non-pecuniary damages and are awarded for the pain, suffering, and loss of enjoyment of life. The maximum amount of general damages you can claim in Canada is $360,000.00 and is only awarded if the victim suffered life-altering and most catastrophic injuries. 
• Special damages: Special damages are generally known as out-of-pocket expenses. An example is where a fractured leg does not heal because of the doctor’s negligence, for which you now have to always rely on pain medications, physiotherapy, or a cane. Your Alberta medical malpractice lawyer knows how to prove this claim. 
• Loss of income or potential earnings: If the medical negligence left you with a disability or injury and that renders you incapable of being gainfully employed, you can seek reimbursement for lost income and unrealized possible income opportunities. 
• Loss of home maintenance capacity: If your injury limited your home maintenance or housekeeping capacity, you can ask for damages to answer for the costs of home upkeep. For example, you may ask for the cost of hiring a maid who will maintain your house.
• Cost of future care:  You can also ask for payment of damages to answer for future care, such as life-long medication, therapy, medical supplies, home modifications, home support, transportation, and housekeeping assistance. 

How a Medical Malpractice Lawyer in Alberta Resolves Claims

Most cases involving medical malpractice in Alberta are amicably settled outside the courtroom. This is why you need a medical malpractice lawyer in Alberta to lobby for your cause and negotiate favourable terms on your behalf. They will be there to assist you from the beginning until an acceptable and humane out-of-court settlement is reached. 

FAQ

How long does a medical malpractice claim take?

Unfortunately, there is no simple way to answer this question. While some medical malpractice lawsuits are resolved before trial, others are resolved before you even file a case. However, many lawsuits go to trial, which may take years to resolve. 

Moreover, if you or the other party aren’t satisfied with the court’s verdict, you can appeal, which will further lengthen the resolution process. Essentially, settling a medical malpractice lawsuit may take years.

Is there a time limit for bringing a medical malpractice claim?

In many circumstances, you cannot file a lawsuit once a specific amount of time has passed. We refer to this as a limitation period.

If you have any questions concerning the statute of limitations that applies to your case, as time restrictions are a complicated area of the law, you should speak with a lawyer.

A medical malpractice claim may be made under section 3 of Alberta’s Limitation Act two years after the claimant first learned of the misconduct or, under the circumstances, should have learned of it.

Can I file a medical malpractice claim in Alberta if I'm below 18 years old?

You must be 18 years old to file a civil claim. If you are under 18, you must find someone who will take on the responsibility, including the financial burden of the case. This person will act as a “Litigation Representative.”

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