Remedies for compensation for medical error or negligence

Physicians sometimes make mistakes in their practice; Error is human. On the other hand, their liability will not be engaged every time they commit professional misconduct, if they have acted according to good medical practice.

What are the situations that give rise to a liability claim against a doctor or hospital for medical error?

Proof of medical malpractice

Normally, the obligation incumbent on doctors, surgeons and dentists is an obligation of means, just as for lawyers. This obligation does not require the physician to guarantee a result, but to take all reasonable steps to achieve the desired result.

To establish fault, the question that must be asked is: was the physician’s conduct reasonably prudent, diligent and competent ? In other words, would another doctor in the same circumstances have acted in the same way?

In the case of a surgeon who forgets an instrument in a patient’s stomach, or amputates the wrong leg, the surgical error is clear. In other cases, it may be more difficult to establish.

Here are some examples of medical errors that have been recognized by the courts:

• Diagnostic or medication error;
• Abuse or follow-up;
• Examination or operation not in accordance with the rules of the art;
• Failure to seek consultations with specialists;
• Failure to conduct required examinations;
• Failure to obtain informed consent prior to surgery;
• Failure to inform the patient about the risks of surgery;
• Malfunction or improper installation of equipment;
• Misuse of a tool.

It should be noted that a medical error can be the responsibility of both the doctor and the staff of a hospital.

For example, a nurse who fails to contact the doctor when circumstances require it is guilty of a fault that may give rise to her liability. Similarly, an attendant who gives a different dose of medication than prescribed makes a mistake.

Harm resulting from the physician’s wrongful error

As in any liability case, it is not enough to simply prove fault. In order to bring an action before the courts, it is necessary to prove a prejudice suffered as a result of the wrongful error of the health professional.

For example, in the case of a patient who is neglected by hospital staff and suffers permanent sequelae, such as paralysis or loss of a limb, there is clear evidence of damage.

Similarly, there is harm when a baby suffers sequelae during pregnancy follow-ups or during childbirth, due to a fault committed by the obstetrician-gynecologist.

It should be noted that in addition to proving the damage, it is essential to demonstrate the causal link: it must be established that the fault is at the origin of the damage. To do this, it is often necessary to resort to medical expertise.

Medical error and the notion of consent

When surgery is offered as part of a treatment, the fault may be the failure to adequately inform the patient about the risks inherent in this procedure.

Indeed, surgeons, whether a neurosurgeon, a plastic surgeon or an orthopedic surgeon, must respect their obligation to inform and ensure that they have obtained free and informed consent from their patients before treatment.

The information a patient is entitled to receive may include:

• The nature of the operation;
• The risks associated with the operation;
• The anticipated profits and result of the transaction;
• The consequences of non-intervention;
• Other possible treatments;

A lack of free and informed consent is the case of a patient who would not have accepted an operation if he or she would have had complete information prior to surgery regarding any of the items listed above.

To assess whether a surgeon has committed a fault involving his professional liability, it is necessary to look, among other things, if he took the time to read the authorization form with the patient, if he adequately explained all the risks or if he had documents completed quickly.

In matters of cosmetic surgery, the courts are much stricter in interpreting this duty of information:

Plastic surgeons must give much more advanced and precise information about the intervention, its dangers, its chances of success and the problems that can accompany it.

Lawsuit for compensation for damage for a medical accident

Under the Code of Ethics for Physicians, a physician must communicate a diagnosis to his or her patient in a timely manner. In addition, in the event of an accident or medical error:

The doctor must inform his patient or the patient’s legal representative as soon as possible of any incident, accident or complication likely to cause or have caused significant consequences on his state of health or physical integrity.

If you believe you have been the victim of negligence or a medical accident, it is your right to request a copy of your complete medical record from the hospital.

It can be complex to bring a medical liability claim because doctors have very good liability insurance and are represented by very large practices. However, we must not be discouraged by these facts, since a fault must be compensated and compensated.

Each file is separate and must be analyzed on a case-by-case basis. Call us for legal advice for an assessment of your case.