In Canada, cases against doctors, nurses and hospitals are the most difficult and complex lawsuits that personal injury lawyers handle. These actions are vigorously defended by publicly funded insurance companies and are rarely settled before going to trial. Very few law firms in Ontario are well recognized as expert in this area of the law. Walker, Head is one of those firms.
It is important, but often difficult, for clients to understand that these cases are not about retribution or apology. These actions, like all other injury lawsuits, are commenced for the sole purpose of recovering money compensation for victims of negligent or wrongful conduct. Also, these claims are not akin to a complaint process. Although a client often ends up with better information about the actual cause of their predicament or disability, in the end the lawsuit is about money compensation. Investigation of, and sanctions for substandard medical conduct are the function of the various regulatory agencies governing each medical provider.
In the case of a complaint against Ontario doctors patients contact and work with the College of Physicians and Surgeons of Ontario (“CPSO”). The CPSO process is ponderous and slow but often very effective. It costs the patient nothing and can occasionally offer the patient and his or her lawyer some insight as to whether particular claims will be viable in Court.
Medical malpractice claims usually take between 2 to 5 years to complete, depending upon complexity. It is important to understand that, unlike automobile accident claims, medical negligence litigants do not receive on-going compensation (which is often much needed) while the lawsuit slowly progresses. The delay is usually for three reasons; first, your lawyer must wait until your treating doctors are able to say that you have achieved your maximum recovery. Second, many independent experts must be identified and retained by your lawyer. This is one of the most critical and difficult functions your lawyer will perform. Willing and qualified medical expert witnesses are busy, expensive and often not close by. Finally, the Courts in our Province are extremely busy with many matters that take precedence over civil lawsuits.
The CMPA is a largely publicly funded organization dedicated and devoted to protecting and defending doctors throughout Canada. It is the only insurance company for doctors in Canada and public funds pay for approximately three-quarters of Canadian doctors’ protection/insurance premiums. It has long been the policy of the CMPA that patient claims will be vigorously resisted with all of its vast resources.
There are items of compensation sought from doctors in a medical negligence lawsuit which are much the same as those sought in any other personal injury lawsuit. Compensation can be sought for the cost of past and future medical care and attendant care, the loss of income, out-of-pocket expenses, cost of housekeeping or home maintenance services, the cost of specialized housing or assistive devices and last (and usually least) payment for loss of enjoyment of life, commonly referred to as general damages. The maximum award for general damages in Canada was set by our Supreme Court in 1978 at $100,000.00. With inflation, that sum has increased to a maximum of about $385,000.00 in 2014.
A note of caution: even the most obvious claims should rarely be pursued unless the value of damages makes it worthwhile. That value is generally thought to be well over $75,000.00. Successful claims for less than that usually end up being exhausted by legal fees.
Speaking of legal fees, in medical negligence claims most lawyers expert in this field will take them on a contingency basis. That is to say that the lawyer will not be paid unless the client wins by way of settlement or judgment. However, unlike automobile injury cases, most lawyers (the ones that do this work well) will require that the client contribute to the up-front cost of having the case analyzed by a medical expert. This up-front cost can range from $5,000.00 to $25,000.00 and is no guarantee of success. It is an often made mistake that lawyers take these cases on without a reliable, preliminary, medical opinion. The CMPA will not even consider your claim unless there is solid, supportable expert opinion that sub-standard medical practice occurred and caused you harm. Small value claims should not be pursued. Only the lawyers will benefit.
“Contingency” is not to be confused with the way in which legal fees are calculated if a claim is successful. Contingency simply means “no win – no pay”. When retaining a lawyer (for any legal services for that matter) the client/lawyer agreement should be clear and written and should provide the basis for calculation and payment of legal fees. Legal fees can be calculated as a percentage of the money recovered or on an hourly basis (with or without a premium for an excellent, efficient results) or a flat fee. The latter would be unusual in a medical malpractice claim.
Lastly, and most importantly, you should know that, (like most lawsuits) a claim against a medical professional must be commenced (not completed) within 2 years. Two years from when? The safest and best advice is that the two-year deadline starts to run the day the medical malpractice occurs. There are exceptions, but good lawyers don’t wait to rely upon them.
Contact Walker Head Lawyers today if you are in need of a medical malpractice lawyer to assist with your medical negligence claim.