Frequently Asked Questions
What is medical malpractice?
Medical professionals owe their patients what is known as a “duty of care”. This means that they are responsible for providing an acceptable level of care and for protecting you from harm. As a patient, you are entitled to expect reasonable standards and if these are not met, your doctors and other health professionals may have committed a breach of their duty of care. Medical malpractice is the term we use to describe cases where this duty of care is breached.
For your health provider to be liable to pay compensation for this breach of duty it is necessary to prove that this mistake caused you to experience a worse outcome.
As well as caring for you, doctors are also responsible for making sure that you properly understand all the risks that might be involved in your treatment, including any surgery. This allows you to give informed consent for your treatment. If you are not given all the appropriate information, you may have a claim for medical malpractice.
There are many types of medical malpractice. The following gives you an idea of how broad malpractice can be:
- Delay in diagnosing of a treatable condition which results in your chances of recovery being reduced or having a poorer recovery
- Misdiagnosis of your condition, which may lead to inappropriate treatment or failure to treat
- Poorly performed surgery and/or post-surgical care
- Drug reaction or overdose
An example of a delay in diagnosis may include failure of the attending physician or midwife to recognize an abnormal fetal heart trace indicating the fetus is in distress, causing damage to the baby.
Misdiagnosis may occur when abdominal pain is diagnosed as gallstones and treated with medication when in fact it is appendicitis.
Poorly performed surgery may involve damage to internal organs or nerves causing permanent damage and disability. Poor post-surgical care may involve failure to deal promptly with infection which causes loss of muscle, seeding of infection elsewhere in the body or failure of grafts etc.
Mistakes with drugs or drug administration are alarming common. A drug can be administered to the wrong patient, or in a dose that is harmful rather than therapeutic.
Something to remember about medical malpractice:
Medicine is an imperfect science. No doctor can guarantee the outcome of surgery, treatment or a reasonable care plan. A poor outcome is therefore not always a sign of negligence.
At Angela Price-Stephens we will give you down-to-earth, candid advice on the prospects of success of a potential claim. We also recognize that your recovery comes first.
What are my options if I think I have suffered a medical mistake?
Having placed your faith in medical experts, it may be difficult to accept that your care may not have been all that it should. Medical professionals can make mistakes and if you are worried that your treatment was not up to standard you should first ask for an explanation. Ask in a direct and respectful manner to avoid giving the physician an excuse to cut the conversation short.
It is rarely a good idea to “threaten” legal action or to mention lawyers at this stage.
If you do not get a satisfactory explanation you have the option of making a complaint to the College of Physicians and Surgeons and/or considering a legal claim.
It is preferable to consult a medical malpractice lawyer for advice before submitting a complaint. If a legal claim is a viable option it may be preferable not to make a complaint but to proceed directly to a legal claim.
How do I make a complaint about my treatment?
A complaint can be made to the College of Physicians and Surgeons. The complaint process is designed for patients to use without the assistance of a lawyer. It involves the completion of forms and a written explanation of your concerns. Please see www.cpsbc.ca
There is no specific deadline for making a complaint.
Is bringing a legal claim going to cost me anything?
An initial consultation is completely FREE.
If we do proceed with a claim our clients are usually offered a contingency fee (otherwise known as a “no win, no fee”). This means that the lawyer’s fees are contingent (or dependent) on the level of compensation. If we do not secure compensation, you will not owe fees for your lawyer’s time and expertise.
Expenses in pursuing your claim, however, remain the client’s responsibility. We carry these expenses until the conclusion of the case.
How much is my claim worth?
If your claim is successful, you will be awarded compensation. This payment is meant to put you in the same position you would have been in if you hadn’t been injured (as far as money is able to do so).
The court will decide on the amount of compensation by evaluating and assessing all the evidence. The “bottom line” or total award of compensation is made up of a number of different categories of claim. These categories may include the following (but note there are many other categories which may be relevant to your claim:
- Pain and suffering (and general loss of enjoyment of life)
- Out of pocket expenses
- Past wage loss
- Future wage loss
- Loss of opportunity
- Cost of future care
- Loss of housekeeping capacity
- Loss of interdependent relationship
- Loss of insurability
- Intrust claims (for additional care provided by your family)
- Management fees for large awards
Future loss of capacity (for example, as a result of no longer having certain types of work open to you as a result of your injury. This category is often based upon loss of future wages. If so, it is an “assessment” not a strict “calculation” of future wage loss based on a specific job).
Cost of future care (for example, ongoing therapies, the cost of making necessary alterations to your home to accommodate the ongoing disability, ongoing assistance of care providers etc)
In Trust Claim (based on the personal care and assistance provided to you by family and friends as a result of the injury)
Management fees (for the cost of ongoing professional financial management of a large award)
There are other potential categories (or heads of damage). Not all of the above categories may apply in your case. Each case is unique.
In assessing the compensation award for “pain and suffering” the court will look to make an award which is in keeping with previous cases (dealing with similar injuries) to maintain some degree of fairness and predictability in the compensation awards. In medical malpractice cases, the injuries are typically more complex to assess due to the lack of similar awards. It is important to have an experienced medical malpractice lawyer to assess your claim and to provide a realistic valuation of your case. This is especially the case where a patient was receiving hospital treatment for a pre-existing medical condition which may be argued to have adversely affected your quality of life and/or your future earning capacity and/or future ability to live independently before the medical event happened.
I believe I may have a claim. What should I do?
Time is of the essence. This means you should act quickly to take legal advice. Remember our initial consultation is free and without obligation. We would much prefer to have been involved at an early stage and assisted you, or your loved one, through the early decisions than being consulted when many decisions have already been made which may be a detriment to bringing any future claim.
We are concerned to protect your legal interests. We are also concerned that you receive the best care. We are often able to assist clients in a practical way such as securing an early consultation for a second opinion or to initiate home support, much earlier than otherwise would be the case.
Keep all receipts relating to expenses you and your family and friends incur as a result of the injury. We cannot claim these expenses without receipts. If you are in doubt as to whether an expense is recoverable, keep the receipt.
Keep a diary of events, feelings and conversations with doctors ONLY AFTER you have spoken with a medical malpractice lawyer. Any notes taken before legal advice has been given in this respect are in danger of being found by the court to be subject to the normal rules of discovery. This means those lawyers acting for the defense will be entitled to see these documents. We have a particular preference as to how a diary is to be kept and what it contains. Please consult us for advice relating to your potential claim.
In certain circumstances, we are also able to assist with finding accommodation for family members close to hospitals to be with their loved ones. We may also be able to assist in finding rehabilitation facilities for severely injured clients – both within and outside the Province.
The earlier you contact us the better opportunity we have of assisting you.
Can you take over from my current lawyer?
If you are using a lawyer, we understand that you want to know that you are using the best in the business to bring your claim to a successful conclusion. You may have previously experienced poor quality service, suspected periods of inactivity and may be concerned about whether you are getting the right advice.
Your concerns are likely to be magnified by the feeling of having been let down or poorly treated by a doctor you trusted. This may make it more difficult to place your trust in other professionals.
If you are concerned about the way in which your claim is being handled we urge you to raise those concerns with your current lawyer. If you feel your concerns are not dealt with properly, it is reasonable for you to consider a “second opinion.” This is something all professionals (medical or legal) should be open to considering.
We have helped many clients who have been dissatisfied with their previous lawyers.
If you would like advice on how to obtain this free “second opinion” please do not hesitate to contact us.
If you do decide to move your case to us then you don’t have to worry about dealing with your previous lawyer. We make all the necessary arrangements for you.
What type of accident can lead to compensation?
If an accident occurs as a result of someone else’s fault and that accident results in injury to you it is possible you may have a claim for compensation. If an accident was inevitable or did not occur as a result of someone else’s fault you will have no claim for compensation. Similarly, if your own actions contributed to the cause of the accident you may be held partially at fault and your compensation would likely be reduced accordingly.
The most common types of incidents resulting in claims for compensation including motor vehicle collisions (ICBC claims), work-related injuries, slips and falls, sporting injuries involving powered vehicles/equipment and medical malpractice.
How long do I have to consider bringing a claim for personal injury?
The law places a time limit on bringing a claim. The time generally runs from two years after you knew, or ought to have known, that you suffered an injury as a result of someone else’s wrongdoing. In most cases, this “knowledge” will be the same day as the actual injury. If a driver hits you in the crosswalk with his vehicle and knocks you down causing injury the limitation date will run from two years from the date of the collision. However, in some cases it may be months or years before you discover that your symptoms, pain or other medical complaints were as a result of someone else’s wrongdoing.
The law on limitation has changed in recent years and can be quite complex. It is essential you take legal advice as soon as possible after the injury has been inflicted or as soon as you receive an indication that your complaints may be a result of someone else fault.
For children, the general two year limitation period does not begin to run until the child reaches the age of majority which in BC is the age of 19 years unless the defendant serves a notice to proceed. It is essential however that any injury involving a minor is dealt with quickly and legal advice is obtained promptly. In the majority of claims for personal injury, there is a relatively short window of opportunity to have injuries treated to ensure the best possible recovery is made. For children, this window of opportunity can be even narrower.
For adults who are under a disability and not able to take care of their own affairs, the limitation clock does not run while that person remains under a disability. However, this type of “disability” does not include the disability arising from the emotional pain, disruption to life and day to day disability which affects most clients who have been injured unless other more serious disability is evident. Waiting to see how you recover from your injuries before deciding whether to consider your option to sue for compensation is never a good idea; although it typically remains one of the most common reasons why potential clients miss their limitation dates. Do not hesitate to call Angela Price-Stephens and receive a free consultation on the merits of your potential claim and the rehabilitation options available to you or your loved one.
I was injured while on someone else’s property, what should I do?
Whether you have a potential claim for personal injury will depend on the circumstances. When someone invites you onto their property (or simply leaves access open to their property) the owner/occupier of those premises is liable for maintaining the premises in a safe manner and to ensure there are no hidden dangers. Typical places for such “occupier liability” claims to be made include rental accommodation, private accommodation, restaurants, shops, and recreational facilities.
Generally in these types of cases, it is essential to act swiftly to protect evidence before it is lost. This will likely include taking photographs of the scene before it changes or is changed by the owner/occupier. Identifying witnesses (who may be guests, employees or other individuals whose identifies are not readily known). It may also be essential to give notice to a local authority which must be done within a very short period of time to keep the option open of pursuing a claim. Call Angela Price-Stephens for free legal advice.
Under no circumstances, is it possible to retain our services by sending one, or more, emails to us as we cannot guarantee all emails are received.
We aim to respond to your email with 24 hours.