Medical Malpractice

Legal duty to give proper medical care

All doctors, nurses, hospitals, and other healthcare providers have a legal duty to provide proper medical care to patients—and to any other people who need emergency medical care. But doctors do not have to accept everyone as a patient. They can refuse to take a person as a patient for legitimate reasons. For example, a doctor may lack medical knowledge and experience in a particular area. Or a doctor and person may disagree on the right medical treatment for the person. But doctors cannot refuse to take a person as a patient because of age, gender, marital status, medical condition, national or ethnic origin, physical or mental disability, political affiliation, race, religion, or socioeconomic status.

If a doctor fails to provide proper medical care, a person can sue them for medical malpractice. At the same time, the person can also complain to the College of Physicians and Surgeons of BC, the body that licenses all BC doctors, enforces standards for them, and handles complaints against them. But the College cannot order a doctor to pay you money—only a court can do that. Script 423, called “Making a Complaint Against Your Doctor” explains how to file a complaint.

The two main types of medical malpractice are negligence and failure to get a patient’s informed consent. And in some cases, the failure to get informed consent may also be an assault.

Negligence

Doctors or healthcare providers are negligent if they fail to provide the type (or standard) of care that a reasonable doctor or healthcare provider would provide in similar circumstances. If the negligence causes injuries or illness to a person, then the doctor or healthcare provider may be liable to pay damages to the person. It’s no excuse for a doctor to say, “I did my best. I just didn’t know any better.” If the doctor should have known better, they may be liable. For example, let’s say that you see your doctor because you are not feeling well and your doctor prescribes a drug to treat the symptoms you described. You take the drug and it harms you. It turns out that it was not appropriate, considering your medical history and the other drugs you were already taking. If other doctors with a similar practice would not have prescribed the drug, your doctor may be negligent. Another example: a surgeon performs the wrong surgery on a patient. The surgeon may be negligent if they did not provide the care a competent surgeon would provide, and instead made a clear mistake or omission that harmed the patient.

Not every mistake or bad result means there was negligence—doctors and healthcare providers are not liable for every mistake. The law realizes that doctors often have to make quick decisions without the best information. Let’s say you complain to your doctor of severe head pain. He pays attention and carefully takes your medical history, listens to you describe your symptoms, and orders the right tests. Then he decides that you have an ordinary tension headache that will go away. Later, it turns out that your doctor was wrong, and his mistake has put your health in danger. In this case, your doctor may have used proper care but still made a mistake. That’s probably the case if other doctors would have treated you the same way. You probably won’t win if you sue the doctor for malpractice. In other words, the key issue is whether the doctor made a reasonable decision that reasonable doctors would have made in the same circumstances—even if it turns out later to be the wrong decision leading to a bad result.

The standard of care—this differs from place to place. It also varies with the level of specialty of the doctor—the standard may be higher for specialists. And it varies with time—today’s standard may not be good enough next year. You can’t always expect the best care available at the most sophisticated research hospital. The standard of care is based on the hospital that treats you and the community it is in. You can’t judge a small-town doctor in an isolated BC town by the same standard as you judge a doctor at Vancouver General Hospital.

In summary, not every mistake or bad result automatically means there was negligence. A doctor may take all the right steps and still make a mistake or get a bad result.

Damages for negligence—if you prove there was negligence and the negligence caused your injury or illness, a court will normally order the doctor, hospital, or healthcare provider to pay you damages for things the negligence caused, including your lost earnings, medical and other expenses, pain and suffering, and loss of enjoyment of life. This last category is the court’s attempt to compensate you for the effect of an error on your life in general. The doctor is responsible only for the harm that his negligence caused. For example, say you needed surgery that would leave you with a mild disability if done properly. But the surgeon was negligent and caused you a greater disability. In this case, you would be paid only for the extra disability caused by the negligence, not for the mild disability you still would have had if the surgeon had not been negligent.

Others may be responsible—if a doctor delegates work to someone else, the doctor is generally still legally responsible for the work. If a doctor leaves a patient in the care of another doctor, both doctors are responsible. If an inexperienced intern performs the duties of a doctor, the intern has to give the same medical care the doctor gives. But a doctor can rely on the employees of a medical facility and expect that they’ll meet the standard of care required in their jobs. So if a doctor leaves proper instructions with a nurse who doesn’t follow them, the nurse, not the doctor, is normally responsible. If a person is harmed by the negligence of another healthcare professional, they can sue that professional. They can also file a complaint with the regulatory body for that profession. For example, the College of Registered Nurses of BC licenses nurses. The Emergency Medical Assistant Licensing Board licenses paramedics.

Hospitals also have a duty to exercise a proper standard of care. A hospital’s duty is to take reasonable care in running the hospital to avoid harming patients. This includes appointing enough competent staff, ensuring that the staff act within their competence level, ensuring timely treatment, and taking the right steps to protect patients from infections from other patients. Hospitals normally have someone to handle complaints about healthcare they provide. And each health authority has a Patient Care Quality Office (listed at www.patientcarequalityreviewboard.ca) to deal with complaints that hospitals cannot resolve. Above these offices is the Patient Care Quality Review Board. It reviews decisions of the Patient Care Quality Offices. For more information, call 1.866.952.2448 or see www.patientcarequalityreviewboard.ca.

Patients are responsible too—as a patient, you are also responsible for your healthcare. You must give the doctor all the important information about your condition, your medical history, and any other relevant information. If you don’t, and that leads to an error in diagnosis or treatment, it will be your fault and not the doctor’s. As well, a doctor is not responsible for problems if you don’t follow the doctor’s advice and your failure causes the problem you complain about. For example, it would be hard to prove that a surgeon was negligent in operating on you, if you don’t follow the surgeon’s instructions about diet and exercise after the operation—and then you get sick from ignoring those instructions.

Failure to get a patient’s informed consent

A doctor has to tell you about your condition, the nature of the proposed treatment, the risks of the treatment, and other options that you may have. You can’t consent to treatment unless the doctor gives you all this information. When a doctor tells you of the risks, they don’t have to explain all the possible risks—just those that a reasonable patient would want to know before deciding about treatment. If a doctor doesn’t give you all this information, the failure could be medical malpractice, but only if the failure caused your problems. Even if a doctor doesn’t give you all the information, the doctor won’t be liable if a reasonable person in your position would have agreed to the treatment anyway, even if the doctor had given them all the information.

A third, complicated type of malpractice

Besides negligence and lack of informed consent, there is a third type of malpractice. Recently, courts have said doctors may be responsible if they break the patient-doctor contract. This is a very complicated area of malpractice law, which this script does not explain. For example, one issue may be who has a contract with the doctor: you or the Medical Services Plan. You would need a lawyer to see if this applies to your case.

Suing because of malpractice—legal advice and time limits

If you have questions or concerns about your treatment, talk to your doctor. Then, if you feel that you’ve been the victim of medical malpractice, get legal advice right away.

Generally, you must start a malpractice lawsuit within two years of when the malpractice occurred. This is called the limitation period. More precisely, it’s within two years of when a reasonable person would realize malpractice might have occurred—knowing what you learned along the way. Even if you’re well during this time, you should act quickly—while witnesses are still available and their memories are fresh.

If you start a lawsuit, you have to be patient. Malpractice suits often take two to five years or more from start to finish.

Costs of suing

Some lawyers will work for a contingency fee. Their fee depends on the result of the case. If you lose, the lawyer gets nothing. If you win, the lawyer gets part of your compensation award. Win or lose, though, you usually have to pay the expenses of suing, which can be thousands of dollars, especially if you have to hire experts to help prove your case. The Law Society regulates contingency fee contracts to ensure they are fair to clients. For more information about lawyers’ fees, check script 438, called “Lawyers’ Fees”.

Complaining to the College at the same time as suing

You can also file a complaint with the College of Physicians and Surgeons of BC, the body that licenses all BC doctors, enforces standards for them, and handles complaints against them. But the College cannot order a doctor to pay you money—only a court can do that. Script 423, called “Making a Complaint Against Your Doctor” explains how to file a complaint. Contact the College at 604.733.7758 in Vancouver and 1.800.461.3008 elsewhere in BC. Its website is www.cpsbc.ca.

[updated April 2014]

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A legal obligation to do or not do a thing, whether by legislation, the common law, or an order of the court. For example, the Criminal Code imposes a legal duty on parents to provide the necessities of life to their children until they turn 16, while the Family Law Act imposes a duty on parents to make decisions in the best interests of their children. See "duty."

In law, a legal incapacity to do certain things, like enter into a contract or start a court proceeding. Legal disabilities include insanity and being under the age of majority. See "age of majority."

A mandatory direction of the court that is binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. Failing to abide by the terms of an order may constitute contempt of court. See "appeal," "consent order," "contempt of court," "decision" and "declaration."

Failing to do something that a reasonable person would do, or doing something that a reasonable person would not do, which results in harm to someone else.

(1) Agreement, or (2) the giving of permission for a thing to happen or not happen.

An award of money payable by one party to a court proceeding to another, usually as compensation for loss or harm suffered as a result of the other party’s actions or omissions. In family law, damages are usually awarded to one party in compensation for breach of contract or spousal abuse. See "breach of contract" and "tort."

In law, having the capacity, ability, or authorization to do a thing. A person who is competent to give evidence is sane and able to understand the issues and results of their evidence. A court that is competent has the authority to deal with the issues in a case and authority over the parties to that case.

(1) In law, an unintentional act or failure to act arising from a misunderstanding of the true state of affairs, from ignorance, or from an error not made in bad faith. (2) In contract law, an unintentional misunderstanding as to the nature of a term agreed to in a contract that may justify setting aside all or part of the contract. See "bad faith" and "contract."

In law, a failure to do something, whether the failure was intentional or unintentional.

(1) In law, a court proceeding; a lawsuit; an action; a cause of action; a claim. (2) A historic decision of the court; case law. See "action," "case law, " "court proceeding," and "precedent."

In law, (1) a judge's conclusions after hearing argument and considering the evidence presented at a trial or an application, (2) a judgment, or (3) the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as their findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law" and "findings of fact."

A person appointed by the federal or provincial government to manage and decide court proceedings in an impartial manner, independent of influence by the parties, the government, or agents of the government. The decisions of a judge are binding upon the parties to the proceeding, subject to appeal.

In law, the directions given by a client to their lawyer about either the conduct of their affairs or a court proceeding.

(1) Intentionally doing a thing, or (2) a law passed by a government, also called "legislation" or a "statute." See "regulations."

An agreement between two or more people, giving them obligations towards each other that can be enforced in court. A valid contract must be offered by one person and accepted by the other, and some form of payment or other thing of value must generally be exchanged between the parties to the contract.

A person licensed to practice law in a particular jurisdiction by that jurisdiction's law society. See "barrister and solicitor."

A time period after which someone may not make a claim because the right to do so has expired. The time for making a claim is set by legislation, and limitation periods differ depending on the type of claim or the relationship between people making and defending the claim.

A mandatory direction of an arbitrator, binding and enforceable upon the parties to an arbitration proceeding, made following the hearing of the arbitration trial proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to challenge or appeal the award in court. See "appeal," "arbitration," and "family law arbitrator."