Are you or a loved one the victim of a medical error? Are you unsure of what to do next? When a doctor or staff member at a healthcare or social services institution makes a medical error that results in harm, what type of help is available to the victim? What does case law say? What are victim rights and remedies? How can you file a complaint?
In this article, the medical liability lawyers at MedLégal share everything you need to know and explain what to do if you have been the victim of a medical error.
Definition of medical error
In Quebec, a medical error is defined as an action or failure to act by a healthcare professional that is contrary to recognized rules of practice, and which causes harm to the patient. Such errors include misdiagnosis, inappropriate treatment, surgical errors, incorrect drug prescriptions, or any other form of negligence or medical malpractice. Medical mistakes can be made by doctors, but also by hospital staff and nurses. In general, for a medical error to be recognized as such, it must be deemed avoidable according to accepted standards of medical care.
How to prove a medical error
In Quebec, proving that there has been a medical error can be a complex process, and usually requires a thorough investigation as well as the expertise of specialized medical and legal professionals. Here are some common steps involved in determining whether there has been a medical error:
Proving fault
A physician or other healthcare professional is found to be at fault if they failed to act with the diligence and prudence expected in similar circumstances. Medical experts are often consulted to evaluate the actions of the healthcare professional concerned and to determine whether they conformed to accepted standards of medical practice. It must be established whether the physician behaved according to the expected behavior of a prudent, diligent and competent physician. This analysis can help identify whether there has been an error or any type of negligence.
Demonstrating injury
Whatever harm the victim has suffered will be considered a loss if it was caused by the medical error. This can include lost wages, treatment costs and even psychological after-effects.
Establishing a causal link
There must be a direct link between the medical error and the damage suffered. If the error is only partially responsible for the damage, the doctor may be held only partially liable.
It’s important to note that proving medical error can be difficult and is not always guaranteed to succeed. You will need to prove that the medical error caused your injury and that your original health issue was not the cause of your suffering. In other words, if it is unlikely that a treatment error was the primary cause of your injury, it will be difficult to win your case. Each case is unique and must be assessed individually by competent professionals.
Physicians’ legal and ethical obligations
In Quebec, physicians are subject to an obligation of means, not of results. This means that they must use all necessary means to promote a favorable outcome, without however guaranteeing the absolute success of a medical intervention. Prior to any intervention, the physician must legally ensure the following:
- Communicate the necessary information before the procedure: The doctor must explain the risks of doing or not doing the procedure, the expected benefits, possible alternatives and their respective risks and benefits.
- Confirming that the patient understands: In addition to providing information, the doctor must also verify that the patient fully understands it and can make an informed decision.
- Obtain the patient’s free and informed consent: After disclosing all information and verifying that the patient has understood it, the physician must obtain the patient’s consent to perform the treatment.
- Obligation of confidentiality: Once you are over the age of 14, no one can obtain your medical information without your consent, including doctors.
- If any of these obligations are not met, the doctor may be held liable.
Common medical errors
Although medical errors can occur in countless situations, our experienced medical liability and health law attorneys have identified certain areas of medicine where the risk is higher than in than others. Here are just a few examples of common medical errors:
- Faulty administration of medication (wrong drugs, wrong doses, etc.)
- Diagnostic error
- Poor follow-up after remission or treatment
- Lack of supervision related to preventable falls
- Faulty triage in the emergency room
- Technical error during surgery
- Surgical site error
- Forgetting instruments or compresses related to surgery
- Mistake during childbirth
- Delay in the diagnosis or treatment of cancer or other pathology
- Error during pregnancy or childbirth follow-up
- Use of faulty equipment
- Failure to seek the advice of a specialist or to recommend necessary medical exams
- Absence of clear patient consent
- Interventions carried out with a lack of diligence and caution
- Etc.
Who can sue after a medical error?
If the patient is alive
The immediate victim of the medical error, if still alive, can take legal action. Any other person who has suffered direct harm as a result of the medical error may also file a lawsuit against the person(s) at fault.
If the victim has died
If the victim of the medical error has died, the victim’s heirs also have the right to sue on the victim’s behalf, as does any person who suffered direct harm caused by the victim’s loss. They can also sue on their own behalf for the loss of their loved one.
Types of compensation for medical error
Medical malpractice lawsuits are designed to compensate victims for harm suffered as a result of a medical error. Monetary damages awarded are intended to compensate the victim for any financial losses, therapeutic costs and psychological suffering caused by the medical error, once the harm has been proven to be a direct result of the medical error.
In the event that a victim dies as a result of a medical error, their heirs may also sue for compensation to cover the cost of funeral expenses, loss of economic support, and suffering. Financial compensation is not intended to enrich the plaintiff, but to provide a fair indemnity relative to the harm suffered. We recommend discussing all options with a specialized lawyer to understand fully what the results of suing could be.
Time frame to file a lawsuit following a medical error
Once you have determined that there has been a medical error, you have a maximum of three years in which to file a medical liability lawsuit. The limitation period begins when the injury appears, not on the day of the medical intervention. In fact, some physical and psychological after-effects do not appear directly after the event, but a few days or even weeks later. After 3 years, your right to claim will be revoked.
Once you have filed a lawsuit, you will need to complete a series of steps that can last between 18 to 24 months before a trial date is set. Where applicable, the conviction amount bears interest throughout this entire process and while waiting for judgment.
How to file a complaint and sue for medical malpractice
A medical malpractice lawyer can help assess the viability of your lawsuit. They can advise on the applicable laws and standards, as well as the options available for obtaining redress.
If a medical error is suspected, you first need to file a complaint with the corresponding professional order, such as the Collège des médecins du Québec. That institution can then investigate the complaint and take disciplinary action if necessary.
Sometimes it is impossible to reach a satisfactory resolution through the complaint and mediation processes. In such a case, it may be necessary to take legal action against the healthcare professional or medical institution concerned. During this process, you will need to present your case before a court, after which a judgment will be rendered.
Contacting a lawyer for help following a medical error
If you believe you have been the victim of a medical error, you should contact lawyers with the right experience and training to assist you during this complex and unique type of litigation. The lawyers in our firm have all completed post-graduate education in health law and are fully trained to assist and represent victims of medical error and malpractice.
Our lawyers can help you understand the circumstances surrounding a medical error and the reasons why you suffered harm.
If you need to file a lawsuit, a lawyer offering these legal services will formulate a claim that takes into account all damages suffered according to the rule of law and applicable jurisprudence.
MedLégal: Helping victims of medical error
Visit our blog to learn more about the world of health law. You can also contact us with questions or to speak with one of our lawyers. We are at your service.
