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  • About
    • Services
      • Class Actions
      • Civil Liability
      • Medical Liability
      • Car Accidents
      • Work Accidents
      • Victims of Criminal Offence
      • Retraite Québec
      • Social Welfare
      • Disability Insurance
      • Criminal Law
      • Penal Law
      • Disciplinary Law
    • Philosophy
      • Protection of your rights
      • Personalized service
      • Trust
    • Legal Fees
      • Percentage
      • Fixed
      • Hourly rate
      • Legal Aid
      • Legal Insurance
    • Distinctions
      • Consumer Choice
      • Three Best Rated
    • Press
      • Class Actions
      • Civil Liability
      • Administrative Law
      • Disability Insurance
  • Team
    • Lawyers / Representatives
      • Mtre Jimmy Ernst Jr. L. Lambert
      • Mtre Benjamin W. Polifort
      • Mtre Loran-Antuan King
      • Mtre Yahia Belhaddad
      • Mtre Felicia Rotaru
      • Mtre Sandra H. Kim
      • Mtre Olivier Hankins-Meilleur
      • Mtre Bo Chi Zhang
      • Mtre Philippe Brault
      • Daphné McConnell
    • Assistants
      • Jeannie Nguyen
      • Céline Slamani
      • Rubi Barboza Gomez
      • Emilie Leblanc
    • Bar Students / Interns
      • Mtre Mégane Rousseau
      • Sandrine Puchin
    • Students
  • Administrative Law
    • Car Accidents (SAAQ)
      • Your SAAQ file
        • Challenging a SAAQ decision
        • Application for administrative review to the SAAQ
        • SAAQ Administrative Review Decision
        • Recourse to the Tribunal administratif du Québec
        • Conciliation at the Tribunal administratif du Québec
        • Trial at the Tribunal administratif du Québec
        • Review of the judgment of the Tribunal administratif du Québec
        • Recourse to the Superior Court
      • Dispute period
      • Income replacement indemnity claim
      • Compensation for bodily injury
      • Compensation for psychological damage
      • Determined employment and return to work
      • Relapse, recurrence or aggravation
      • Causal link
      • Personal assistance at home
      • Request for reimbursement
    • Work Accidents (CNESST)
      • Contestation of a CNESST file
      • Income replacement indemnity
      • Employment
      • Compensation for relapse
      • Civil action for a work accident
    • Victims of Criminal Offence (IVAC)
      • Criminal acts covered by the IVAC
      • Criminal Compensation Lawyer
      • Victims of physical assault
      • Compensation for unemployed victims
      • Fault of the victim
      • Rehabilitation
    • Retraite Québec
      • Refusal of a request
      • Work income
      • Family allowances
      • Surviving spouse’s pension
      • Supplement for disabled children
      • Progress of the file
    • Social Welfare
      • Marital life
      • Misrepresentation or fraud
      • Investigation
  • Civil Law
    • Civil Liability
      • How to prove the damage
      • Assessment of civil damage
      • Compensation for bodily injury
      • Injuries caused by a fall
      • Injuries caused by the ruin of a building
      • Liability of the city in case of lack of maintenance
      • Responsibility of the school
      • Fact of the goods
    • Medical Liability
      • Remedies for compensation
      • Medical negligence and unnecessary treatment
      • Surgical errors and early discharge from hospital
      • Misdiagnosis
      • Malfunction of medical devices
      • Code of Ethics of Physicians
    • Prosecuting your aggressor in civil proceedings
      • Criminal vs. civil hearing
      • Prescription
    • Contractual Law
      • Claim for damages
      • Letter of formal notice
    • Disability Insurance
      • Disability Insurance
    • Hidden Defects
  • Class Actions
    • Ongoing Class Actions
      • Coloplast
      • Canada Post
      • Nintendo
      • Samsung
      • Videotron
      • Car dealers
      • GoFundMe
      • Fever
      • Hyundai (paint)
      • Brewers
      • SAQ
      • Psycom
      • Volkswagen (water leak)
      • “Alcohol-free” products
      • Ticketmaster
      • Diocese of Gaspé
      • Diocese of Rimouski
      • Diocese of Rouyn-Noranda
      • Social media
      • Bread recall
      • Kia (paint)
      • Audi (oil)
      • Tequila
      • STM
      • DoorDash (tips)
      • Lafontaine Tunnel
      • Public Storage
      • Volkswagen (ID.4)
      • Nissan (paint)
      • Nissan (roof)
      • Nordik Spa
    • Completed Class Actions
      • Metro Metro Festival
      • Cogeco
      • DoorDash
      • Ironman
      • StockX
      • Croisières AML
      • Web Hosting Canada
      • UberEats
      • UberEats (Service Fees)
      • Laurentian Bank
    • Frequently asked questions
      • What are the steps of a class action?
      • How do I become a class member in a class action?
      • How to make a claim?
      • How much to receive as compensation?
      • When to receive compensation?
  • Criminal Law
    • Offences
      • Assault
      • Assault on a peace officer
      • Break and enter
      • Criminal negligence
      • Dangerous driving
      • Fraud
      • Hit-and-run
      • Impaired driving (DUI)
      • Mischief
      • Murder and attempted murder
      • Obstruction of justice
      • Possession of drugs and other substances
      • Possession of firearms
      • Sexual assault
      • Theft and possession of stolen goods
      • Threats
    • Procedure
      • Rights and freedoms in the event of arrest
      • Interim release
      • Elements of a criminal offence
      • Sentencing
      • Application for a record suspension
    • Charter Rights
      • Right to be informed of the reasons for arrest and right to counsel
      • Right to silence
      • Presumption of innocence
      • Right to be free from arbitrary detention or imprisonment
      • Right to be secure against unreasonable search or seizure
    • Defence
      • Coercion and necessity
      • Error of fact
      • Ignorance of the law
      • Intoxication
      • Self-defence
      • Not criminally responsible
      • Provocation
  • Penal Law
  • Disciplinary Law
    • Dentists
    • Engineers
    • Judges
    • Notaries
    • Nurses
    • Opticians
    • Optometrists
    • Psychologists
    • Real Estate Brokers
    • Veterinarians
  • Housing Law
    • Tenant Representation
      • Abandonment of housing
      • Pets and Rental Housing
      • Rent increase
      • Request for Deposit
      • Deposit: Illegal or Not?
      • Rodent infestation
      • Housing unfit for habitation
      • Obligations of delivery, maintenance, and fitness of the property
      • Repairs in the home
      • Neighbourhood disturbances
      • Validity of the lease
      • Sale of housing
    • Landlord Representation
      • Hidden defect lawyers
      • Death of the tenant
      • Eviction
      • Non-payment of rent and frequent delays
      • Repossession of accommodation
      • Termination, Sublease and Assignment of Lease
  • Aviation Lawyers
    • Passenger Rights
      • Travel insurance
      • Right to assistance
      • Right to compensation
      • Right to information
      • Right to care
      • Disclaimer
      • Carrier’s Obligations
      • Additional obligations of airlines
      • Penalties
    • Laws and regulations
      • Air Passenger Compensation
      • The Montreal Convention
      • International Civil Aviation Organization (ICAO)
      • European Regulation
    • Complaints procedure
      • Relevant documents and information to keep
      • Claim Form
      • Small claims claim
    • Special situations
      • Cessation of an airline’s activities
      • Rights of passengers with special needs
      • Denied boarding
  • Legal Capsules
    • General
      • Prescription
      • Guide to writing a letter of formal notice
      • Small Claims Court
      • Representing yourself in court without a lawyer
      • Recording a conversation
    • Civil Liability
      • Aquatic accidents
      • Boat accidents
      • Skiing accidents and other winter sports
      • Accidents during a hunting activity
      • Recreation
      • Burns caused by aesthetic care
      • Transmission of an STI
      • Dog bite or attack
      • Responsibility of a babysitter or daycare
      • Bullying at school
      • Defamation
    • Consumer Law
      • Unfair term in terms of membership
      • Punitive damages
      • Misrepresentation in advertisements
      • Cancellation fees
      • Extended warranty
      • Illegal pricing practice
        • Price Accuracy Policy
        • Additional fees in consumer contracts
      • Abusive loans
      • Flight delay, cancellation or overbooking
      • Telecommunications companies
        • Complaint to the Commission for Complaints for Telecom-television Services (CCTS)
        • Termination fees for telecommunications contracts
    • Car Accidents
      • After a car accident: the impact on victims
      • Compensation for an accident that occurred while using a vehicle
      • Accident with a snow removal vehicle
      • Injuries sustained in an automobile accident outside Quebec
      • Compensation by the SAAQ for personal assistance at home
      • The SAAQ’s no-fault regime
      • Simulation
    • Work Accidents
      • Accidents at work while working from home
      • Civil action for a work accident
      • Accident at work outside working hours
      • Presumption of occupational diseases
      • De Quervain’s tendinitis
      • Cannabis use in the workplace
      • Guide for victims of psychological harassment at work
    • Victims of Criminal Offence
      • Psychotherapy for the victim of criminal offence
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  • Reach us
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Medical negligence and unnecessary treatment

You are here: Home / Civil liability / Medical negligence and unnecessary treatment

Physicians are obligated to be diligent throughout the treatment of their patients. Again, this is an obligation of means, that is, the physician only has to show that he behaved like a prudent and reasonable physician in order to have his liability released. He is therefore entitled to error, unless it was caused by his own negligence.

It is important to specify that this rigour must be present from the moment the patient consults the doctor for the first time, until the moment when the latter or another doctor signs the discharge from the hospital to the patient.

Negligence during the consultation

The history is one of the very first steps that all reasonable doctors must take. In fact, according to the court, this would be the most important stage of the medical consultation. It consists of learning about the patient’s medical history in order to facilitate the patient’s diagnosis as well as to prevent complications that may occur during treatment.

During this step, the doctor must be attentive in order to carefully sort the information provided to him by the client. It should not focus only on the symptoms exhibited by the patient and failure to inquire about the patient’s medical history could be considered a fault by a court if this act ever causes harm.

For example, such an omission on the part of a doctor in the emergency room was the cause of the death of a 20-year-old man. The latter was taken to the hospital by his family who informed the doctor about his history of migraine, tremor and vomiting. However, the emergency physician ignores this information and focuses only on the fact that the young adult has his head leaning forward. He diagnoses him with muscle spasms and sends him home with an analgesic. The boy died shortly afterwards from an obstruction of the cerebral canals. The Superior Court concluded that this unfortunate incident could have been avoided if the physician had taken into account the patient’s medical history; he would have proceeded to a drainage of the cerebral fluid which would have saved the life of the young man.

It would be all the more serious to neglect the medical history of your patient when it comes to prescribing an operation or a drug. Indeed, some treatments may be subject to contraindications. For example, a patient was prescribed an oral contraceptive by a doctor who neglected to inquire about her phlebitis history. However, it is well recognized that the mixture of these factors may be the cause of cerebral hemorrhage and this is exactly what happened in this case leaving the plaintiff partially paralyzed. The Court of Appeal found negligence on the part of the physician and ordered the physician to compensate the victim.

Neglect during physical examinations

It is by taking into account the information provided by the patient that the doctor will choose, if necessary, the appropriate tests to complete his diagnosis. Since some tests may be invasive in nature or may pose risks, it is important not to subject the patient to them unnecessarily. Nor should we neglect to pass the tests dictated by the rules of the art. Indeed, it has often happened that the courts have condemned a doctor for not having carried out certain specific tests that a doctor with up-to-date knowledge would have passed on to the patient.

This was the case of a doctor who neglected to do an ultrasound after a patient reported that she felt a decrease in the movement of her fetus. Since an ultrasound had just been done, 15 days before the pregnant woman’s concern, the doctor did not think it wise to check the condition of the fetus. A few days later, the woman lost the child. The evidence showed that an ultrasound would have made it possible for the doctor to realize that an emergency caesarean section was needed in order to save the child’s life, and the court ordered the doctor to pay damages to the woman and her family.

Case law has also recognized that a failure to perform an X-ray constitutes a fault when it comes to diagnosing a fracture, surgical residues or cancer.

A physician may, however, be exempted in cases where the physician has performed all the recommended examinations without detecting anything, provided that he has behaved reasonably.

Consultation with a confrere

It is strongly recommended that a doctor consult a colleague before making his diagnosis, especially if he knows a colleague more specialized in the field. A second opinion is often useful in order to detect errors in the doctor’s procedure and to bring more credibility to the conclusions of the attending physician.

Moreover, the courts and the College of Physicians do not hesitate to condemn doctors who have not resorted to a second opinion, which could have avoided serious complications for their patients.

This was the case of a neurologist on call who interpreted a patient’s X-rays and diagnosed him with three metastases. The patient was then given a radiotherapy treatment to alleviate his pain. It is once the treatments are completed that another doctor realizes that the metastases were actually aneurysms requiring two specific operations. The unnecessary treatment of radiotherapy was not without risk, the patient remained with serious sequelae. The Superior Court concluded that the hasty and erroneous diagnosis could have been avoided if the neurologist had consulted or referred the patient to another physician.

If you believe you have been the victim of medical negligence, do not hesitate to contact our practice.

Related posts:

  1. Remedies for compensation for medical error or negligence
  2. Malfunction of medical devices
  3. Medical liability: misdiagnosis
  4. Medical Liability: The Code of Ethics of Physicians
Previous Post: « Medical Liability: The Code of Ethics of Physicians
Next Post: Termination fees for telecommunications contracts »

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