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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. 

Common Causes of Action in Medical Negligence and Medical Malpractice 

Failure to obtain informed consent

Before performing any kind of treatment on the patient, the physician is required to obtain the patient’s consent. Under the statute and common law, physicians are bound to disclose health-related matters to their patients. These include unusual, special, or material risks of the treatment, risks unique to the patient, and any alternative treatment. 

If the physician fails to secure the patient’s informed consent, either by their failure to disclose all the crucial information or otherwise, they will be liable for any injury the patient may sustain. In this case, the practitioner’s negligence or diligence would be immaterial. 

Failure to meet the required standard of care

Medical practitioners are not required to be perfect in exercising their duties. Instead, they’re required to meet the standard of care required by their profession. Circumstances like resources, location, and specialty are also taken into consideration. 

Based on precedent, medical practitioners need to be reasonably skilled and knowledgeable. 

The test to determine the required standard of care is what would be expected from a prudent, normal practitioner with similar standing and experience?

It’s also important to note that the standard of care, while objective, is also fact-based and unique to every situation.

Breach of fiduciary duty

A fiduciary relationship is one that’s built on trust. The relationship between the medical practitioner and patient is an example of a fiduciary relationship. However, medical negligence per se couldn’t be considered an automatic breach of the physician’s fiduciary duty. 

Because of the trust and confidence between the physician and the  patient, these specific duties arise: 

  1. Duty to observe loyalty and good faith; and 
  2. Duty to hold in confidence information about and from the patient. 

These specific duties are codified in statutes and the Health Information Act. A breach of these duties, and when predation or exploitation premised on self-interest is proven on the part of the physician, the court could rule that there was a breach of a fiduciary duty.

Contact Diamond and Diamond Alberta today to learn more about what you can do when involved in a medical malpractice case.

Pro Tip

“Be specific with the costs that you incurred because of the damage caused by the medical malpractice.”

– Diamond and Diamond Alberta

Alberta Medical Malpractice Lawyers

If you’re a victim of malpractice, seek the help of Alberta medical malpractice lawyers from Diamond and Diamond Law. The firm’s team of lawyers has solid experience dealing with medical malpractice cases. Being experienced in different types of malpractice cases gives them a competitive advantage over other law firms. 

It may be hard to prove medical malpractice, but with seasoned lawyers helping you, you improve your chances of securing a favourable verdict. Talk to the lawyers of Diamond and Diamond Law today and take advantage of their free online case evaluation.