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LAMBERT AVOCATS

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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
  • Career
  • Reach us
  • English
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Surgical errors and early discharge from hospital

You are here: Home / Civil liability / Surgical errors and early discharge from hospital

You are undergoing surgery on your abdomen in a hospital. The doctor allows you to return to your home the next day. Once at home, you feel pain at the level where the operation took place. So you call your doctor who does not answer. You go to the emergency room and are informed that your abdomen became infected with the flesh-eating bacteria because the surgeon had not sterilized the instruments.

What remedies are available to you when you are a victim of such situations? Did the doctor act negligently? If so, how is it possible to prove it?

Mr. Lambert explains the rules of law concerning surgical errors and early hospital discharge using examples from case law.

Elements of civil liability

The usual readers of our legal capsules probably already know that to succeed in your civil liability claim, you must successfully demonstrate three important elements: fault, harm and causation.

In cases of surgical negligence, the harm suffered will be, most of the time, of a corporeal nature and occasionally, moral. In order to successfully demonstrate the existence and extent of the damage incurred, it is strongly recommended to resort to expert testimonies and reports. This will add credibility to your case and boost your chances of success in court.

Once the harm has been established, it will be necessary to determine whether the physician’s action directly caused the damage and whether it represents a fault on the part of the doctor. Again, experts, including specialized physicians, will need to be used to demonstrate these two essential pieces of evidence.

With regard to the fault, it will be a question of whether the physician has complied with all the obligations to which he is bound towards the patient. These various responsibilities are determined by several statutes, including the Code of Ethics of Physicians. Health professionals are, among other things, bound by an obligation to care and an obligation to follow. These two obligations represent obligations of means and not of result. They are therefore not obliged to guarantee healing, but they must still act with caution and reason in order to take the best means to achieve it. A fault will then be committed if there is a marked discrepancy between the conduct of a reasonable physician and the one being sued. A doctor will therefore not be held professionally liable if his error could also have been committed by one of his prudent and diligent colleagues.

Early leave and obligation to follow

Of course, the surgeon does not have to guarantee the success of the surgery. However, it must explain the risks to which the patient is exposed, the chances of success, other possible treatments, complications and side effects that could occur following the operation. The goal at this stage is to ensure that the patient is informed so that they are able to give informed consent. Thus, if a previously disclosed complication occurs, the patient will hardly be able to turn against the doctor since he was aware and had accepted the risk. It will then be necessary to demonstrate that the complication was caused by the negligence or carelessness of the surgeon.

Once the operation is complete, the doctor has the duty to adequately advise the patient on the measures to be taken to avoid and prevent the appearance of postoperative complications. It should also provide information about the warning symptoms of a side effect that may require further follow-up.

At this stage, it is essential that the patient cooperates and accurately follows the instructions given by the doctor, otherwise, he could be blamed for having contributed to his harm. Thus, a physician could be exempted if the infection contracted by the patient is due to his or her own negligence and failure to take the antibiotics prescribed.

When it comes time to sign the discharge from the hospital, the physician must ensure that the patient’s condition is stable and that the rest of the treatment can be safely administered at home. An early leave of absence from the hospital would then represent a breach of the obligation to follow and would be likely to engage the professional liability of the doctor or institution.

For example, in a case, a patient suffering from a hernia located in his spine decides to undergo a laminectomy, that is, the partial removal of a vertebra. Soon after, the patient has to undergo a second surgery due to some complications. It is after this second surgery that the doctor commits a fault by sending the patient home, only 3 days after the operation, and this, without having checked the condition of his spine. The patient suffered a vertebral crush which made him quadriplegic. The evidence showed that this could have been avoided if the physician had exercised due diligence and ensured the patient’s stability.

The physician must also remain available and be attentive to patients’ complaints. For example, the Superior Court convicted a physician who neglected the pain reported by a patient. The latter had him answer by his receptionist and advised him not to go to the emergency room. As her condition deteriorated, she had to undergo further surgery.

If you have had an experience similar to the examples mentioned, do not hesitate to contact our firm.

Related posts:

  1. The liability of the principal for a fault committed by his agent
  2. Roof collapse due to snow accumulation
  3. Accident caused by a carport
  4. Accident with a snow removal vehicle
Previous Post: « Non-compliance with a food allergy
Next Post: Liability of the city in case of lack of maintenance »

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