There are two key challenges to litigating medical malpractice cases on plaintiffs’ behalf in Ontario. First, the subject matter is extremely complex. Most medical procedures are understood in their entireties by only a small percentage of the population. A medical malpractice lawyer must have at least a basic understanding of the medicine their case revolves around, while also being able to argue persuasively from a legal context.
Second, the odds of winning a malpractice case in Canada are systemically stacked against plaintiffs. In order to prove that malpractice has occurred, a plaintiff must establish that they were owed a duty of care by the defendant, that the defendant breached the duty of care, that the breach caused the plaintiff’s injuries, and that the injuries resulted in damages.
These challenges are exacerbated in cases involving complex medical practices, such as surgeries. Physicians, including surgeons, aren’t expected to deliver perfect care; they’re expected to deliver a similar standard of care to what another competent physician in a similar position would provide. In other words, just because you’ve been injured during a medical procedure doesn’t mean that malpractice has occurred. Injuries during surgeries are relatively common, even when the operation has been performed perfectly.
“In surgery there’s always the potential for damage even if the surgery is done perfectly,” one Toronto medical malpractice lawyer recently told Canadian Lawyer in an interview. “There could be complications that nobody predicted. In many complications cases the defence will say ‘this wasn’t negligence, it’s a known complication’… Unfortunately, this ‘known complication’ defence has been extremely successful.”
Considering these challenges, it shouldn’t be a surprise that successful surgical malpractice cases are relatively rare in Canada; those that are successful tend to rely on the testimony of expert medical witnesses.
“You want really well qualified experts,” the medical malpractice lawyer said. “You want them to be articulate, and you want them to rely on objective factors that are not matters of opinion to support why they suggest this was a breach of the standard of care.”
The most sought-after expert witnesses are able to speak clearly and authoritatively on the subject at hand; are experts in the particular of area of medicine under examination; are highly credentialed; and have a history of testifying on both sides of medical malpractice disputes. Many malpractice lawsuits are won by the side with the more credible expert witnesses. The expert your medical malpractice lawyer chooses to provide testimony in your case could mean the difference between fair and reasonable compensation and compensation denied.
If you or a member of your family has been injured in a medical accident, contact Neinstein Personal Injury Lawyers today to schedule a free, no-obligation consultation.
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