Albertans entrust our well-being to the skilled hands of medical professionals, relying on their expertise to heal, not harm. However, when the unthinkable occurs and medical treatment goes awry, the consequences can be devastating both physically and emotionally. As such, injured individuals will often be left with unanswered questions, seeking to hold the appropriate party accountable, giving rise to the intricate realm of medical malpractice claims.

From the initial realization of harm to the pursuit of settlement and recovering appropriate compensation, understanding the intricacies of a medical malpractice claim can be complex. This blog aims to peel back the layers of the unique processes involved in medical malpractice claims within the Alberta legal landscape. It will explore key elements that comprise such claims, examining the critical steps, legal considerations, and challenges inherent in seeking recompense for medical errors. 

Medical Malpractice Claims Are Complex 

At a basic level, a medical malpractice claim starts when someone is harmed while receiving treatment from a healthcare professional and they seek compensation for their losses through the legal system. Before commencing a medical malpractice lawsuit, it is important to consult with an experienced medical malpractice lawyer who can thoroughly evaluate your circumstances and help you determine whether it is in your best interests to pursue a lawsuit. If steps are taken to advance a claim, your lawyer will utilize their experience and resources to ensure that your rights and interests are defended, while advancing a sound legal argument with supporting evidence with the goal of obtaining the maximum compensation available. 

Due to the high costs of expert reports, extensive litigation, and significant resources required to pursue a medical malpractice claim are generally only started if a catastrophic and permanent injury is involved. There are also many difficulties surrounding evidence and proof in such claims. Given this, performing a cost/benefit analysis of the case from the beginning is important. 

A medical malpractice claim may involve:

• Treating a patient without first obtaining the patient’s informed consent,
• Failing to treat a patient when the patient has a right to be treated, 
• Delayed or missed diagnosis, or
• Careless treatment of a patient resulting in injury.

Establishing Your Case

To prove that you have sustained an injury due to medical negligence, you must show that you received care from a doctor, health practitioner, specialist, or hospital that did not meet the standard of care expected of and owed by, them. 

To establish that negligence has occurred, a plaintiff must show that:

1. The defendant(s) fell below the accepted standard of care;
2. The defendant(s) had a duty of care to the person they injured;
3. The defendant(s) caused the harm that was suffered as a result of the incident; and
4. The plaintiff suffered legally recognized damage.

Section 3(1) of Alberta’s Limitations Act also states that a claimant must file their claim within two years of the injury being discovered. Therefore, it is important to take quick action to ensure your rights are protected.

Determining the Standard of Care

The treating medical professional owes you a standard of care that is equal to that of a normally competent – or “reasonable” doctor. When determining what that standard is, there may be unique considerations; for example, a treating physician in the city may be held to a higher standard of care than a treating physician in a rural area. If this standard of care is breached – in other words, if the doctor does or omits something that a normally competent doctor would have done, and you sustain an injury, you may be able to commence a claim for medical malpractice. 

Breaching the Duty of Care

A court will first establish the requisite standard of care for the medical procedure involved in the claim and will then ask “what is the standard expected of a reasonably competent health professional when conducting the medical procedure that is argued to have caused a plaintiff’s injuries?” Once the court has established the appropriate standard of care, it will then consider whether the conduct of the medical professional in question fell below the accepted practice.

It is generally accepted that doctors, nurses, and hospital staff owe a duty of care to their patients. As such, they must treat them with reasonable care, skill and diligence. 

However, medical professionals are not expected to be perfect, and the standard of care provides a range of possible actions. There are likely better and worse choices for a doctor, but choosing one that is not ideal is not necessarily negligence. A surgeon, for example, will often have several reasonable options to choose from when treating a patient, including immediate intervention, a more conservative management approach, or something else altogether, depending on the patient’s risks. Since medical care is often inherently risky, many factors must be considered when determining what is often called a ‘clinical judgment decision.’ So as long as the treating medical professional made a reasonable decision, they will have met the standard of care. 

Proving Causation

When healthcare and treatment are concerned, there are almost always questions about whether or not some or all of the harm would have happened, even if the medical care was reasonable. In other words, did the improper acts of the defendant(s) cause the harm that ensued? The plaintiff must prove it is more likely than not that the defendant(s) negligence caused their injuries.

Quantifying Damages

You can seek compensation for physical, emotional and/or psychological injuries. Still, there are important factors to consider when deciding whether you can prove legally recognized harm that is substantial enough to justify. In a medical malpractice case, it is also important to consider how a court would value the injuries you have suffered. In most cases, a plaintiff will seek to recover damages relating to pain and suffering for their injuries, loss of valuable services, past and future loss of income, and future costs of care.

Contact the Injury Lawyers at Cuming & Gillespie for Advice on Medical Malpractice Claims

At Cuming & Gillespie LLP, our trusted personal injury lawyers understand the difficult questions you may be left with after suffering injuries due to medical malpractice or negligence. If you or a loved one has received medical treatment which resulted in injury, you may have a basis to commence a medical malpractice lawsuit and recover compensation for your medical expenses and other damages and losses. To schedule an initial consultation with one of our lawyers, contact us online or by phone at 403-571-0555.