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Difference between revisions of "Medical Malpractice"
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'''Medical malpractice''' occurs when a health care provider gives substandard treatment that causes harm to a patient. Learn your rights in getting medical care and what can constitute medical malpractice. | '''Medical malpractice''' occurs when a health care provider gives substandard treatment that causes harm to a patient. Learn your rights in getting medical care and what can constitute medical malpractice. | ||
== | ==What you should know== | ||
===The legal duty to give proper medical care=== | ===The legal duty to give proper medical care=== | ||
All doctors, nurses, hospitals, and other health care providers have a legal duty to provide proper medical care to patients — and to anyone needing 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. | All doctors, nurses, hospitals, and other health care providers have a legal duty to provide proper medical care to patients — and to anyone needing 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 health care provider fails to provide proper medical care, a person can sue them for damages by bringing a claim for '''medical malpractice'''. The two main types of medical malpractice are when a health care provider is '''negligent''' and when a doctor does not get '''informed consent''' from a patient. | If a health care provider fails to provide proper medical care, a person can sue them for damages by bringing a claim for '''medical malpractice'''. The two main types of medical malpractice are when a health care provider is '''negligent''' and when a doctor does not get '''informed consent''' from a patient. | ||
{| class="wikitable" | {| class="wikitable" | ||
|align="left"|'''Tip''' | |align="left"|'''Tip''' | ||
If you are concerned with a doctor’s conduct or the treatment you received, you can '''make a complaint''' to the College of Physicians and Surgeons of BC, the body that licenses doctors in British Columbia. | If you are concerned with a doctor’s conduct or the treatment you received, you can '''make a complaint''' to the College of Physicians and Surgeons of BC, the body that licenses doctors in British Columbia. We explain [[If You Have a Problem with a Doctor|how to make a complaint]]. | ||
|} | |} | ||
===If your doctor or health care provider is negligent=== | ===If your doctor or health care provider is negligent=== | ||
A doctor or health care provider is '''negligent''' if they fail to provide the '''standard of care''' a reasonable doctor or health care provider practising in the same area would provide in similar circumstances. If the negligence causes injuries or illness to a person, the doctor or health care provider may be liable to pay '''damages''' (money to pay for the harm done) to the person. | A doctor or health care provider is '''negligent''' if they fail to provide the '''standard of care''' a reasonable doctor or health care provider practising in the same area would provide in similar circumstances. If the negligence causes injuries or illness to a person, the doctor or health care provider may be liable to pay '''damages''' (money to pay for the harm done) 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 you see a doctor because you’re not feeling well. The doctor prescribes a drug to treat the symptoms you describe. You take the drug and it harms you. It turns out the drug was not appropriate, considering your medical history and the other drugs you were already taking. If other doctors with a similar type of medical practice would not have prescribed the drug, the doctor may be negligent. | 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 you see a doctor because you’re not feeling well. The doctor prescribes a drug to treat the symptoms you describe. You take the drug and it harms you. It turns out the drug was not appropriate, considering your medical history and the other drugs you were already taking. If other doctors with a similar type of medical practice would not have prescribed the drug, the doctor may be negligent. | ||
====Not every mistake or bad result means there was negligence==== | ====Not every mistake or bad result means there was negligence==== | ||
Doctors and health care providers are not liable for every mistake. The law recognizes that doctors often have to make quick decisions without the best information. The key question is this: did the doctor make a '''reasonable''' decision that other reasonable doctors would have made in the same situation — even if later it turns out to be the wrong decision that caused a bad result. | Doctors and health care providers are not liable for every mistake. The law recognizes that doctors often have to make quick decisions without the best information. The key question is this: did the doctor make a '''reasonable''' decision that other reasonable doctors would have made in the same situation — even if later it turns out to be the wrong decision that caused a bad result. | ||
For example, you complain to your doctor of severe head pain. They examine you, carefully take your medical history, listen to you describe your symptoms, and order the right tests. Using the results of this examination, they decide you have an ordinary tension headache that will go away. Later, it turns out your doctor was wrong, and the pain was not caused by a tension headache. The doctor’s diagnosis was wrong. But your doctor still provided the proper standard of care, the same care that other doctors would have provided in this case. The doctor was not negligent and you probably won’t win if you sue the doctor for malpractice. | For example, you complain to your doctor of severe head pain. They examine you, carefully take your medical history, listen to you describe your symptoms, and order the right tests. Using the results of this examination, they decide you have an ordinary tension headache that will go away. Later, it turns out your doctor was wrong, and the pain was not caused by a tension headache. The doctor’s diagnosis was wrong. But your doctor still provided the proper standard of care, the same care that other doctors would have provided in this case. The doctor was not negligent and you probably won’t win if you sue the doctor for malpractice. | ||
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===If there is a delay in your diagnosis=== | ===If there is a delay in your diagnosis=== | ||
If a doctor fails to diagnose a medical condition that a reasonable doctor in the same situation would have diagnosed, they would be negligent. The question then becomes whether the failure to diagnose ''' | If a doctor fails to diagnose a medical condition that a reasonable doctor in the same situation would have diagnosed, they would be negligent. The question then becomes whether the failure to diagnose caused any '''injury or loss''' to the patient. Sometimes, a delay in diagnosis can mean the difference between curing or not curing the condition. Other times, a delay in diagnosis may not have made a difference. In that case, the patient could not recover anything from the doctor. | ||
===If you prove negligence, a court may award damages=== | ===If you prove negligence, a court may award damages=== | ||
If you prove there was negligence and the negligence caused your injury or illness, a court may order the doctor, hospital, or health care provider to pay you '''damages''' for the harm the negligence caused. The damages can include 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 the negligence on your life, in general. | If you prove there was negligence and the negligence caused your injury or illness, a court may order the doctor, hospital, or health care provider to pay you '''damages''' for the harm the negligence caused. The damages can include 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 the negligence on your life, in general. | ||
The doctor is responsible only for the harm their negligence caused. For example, say you consented to surgery that would require you to take two months off work to recover, if done properly. But the surgeon was negligent and as a result you had to take six months off. In this case, you would be paid for the extra four months of lost earnings caused by the negligence. You would not be compensated for the first two months off, as you had consented to taking that time off already. You still would have had to take the two months off if the surgery had gone as planned. | The doctor is responsible only for the harm their negligence caused. For example, say you consented to surgery that would require you to take two months off work to recover, if done properly. But the surgeon was negligent and as a result you had to take six months off. In this case, you would be paid for the extra four months of lost earnings caused by the negligence. You would not be compensated for the first two months off, as you had consented to taking that time off already. You still would have had to take the two months off if the surgery had gone as planned. | ||
===If others may be responsible=== | ===If others may be responsible=== | ||
If a doctor delegates work to someone else, the doctor may still be legally responsible for the work. If a doctor leaves a patient in the care of another doctor, both doctors may be responsible. If an inexperienced intern performs the duties of a doctor, the intern has to give the same medical care the doctor would give. | If a doctor delegates work to someone else, the doctor may still be legally responsible for the work. If a doctor leaves a patient in the care of another doctor, both doctors may be responsible. If an inexperienced intern performs the duties of a doctor, the intern has to give the same medical care the doctor would give. | ||
But a doctor can rely on the employees of a medical facility and expect 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, may be responsible. Or both may be responsible. | But a doctor can rely on the employees of a medical facility and expect 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, may be responsible. Or both may be responsible. | ||
If a person is harmed by the negligence of another health care professional, they can sue that professional. They can also file a complaint with the regulatory body for that profession. For example, a complaint about a nurse can be made to the BC College of Nursing Professionals, the body that licenses nurses in the province. | If a person is harmed by the negligence of another health care professional, they can sue that professional. They can also file a complaint with the regulatory body for that profession. For example, a complaint about a nurse can be made to the BC College of Nursing Professionals, the body that licenses nurses in the province. | ||
====Hospitals’ duties==== | ====Hospitals’ duties==== | ||
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====Complaints that hospitals can’t resolve==== | ====Complaints that hospitals can’t resolve==== | ||
Each health authority in British Columbia has | Each health authority in British Columbia has [https://www.patientcarequalityreviewboard.ca/makecomplaint.html a Patient Care Quality Office] to deal with complaints that hospitals cannot resolve. Each health authority also has [https://www.patientcarequalityreviewboard.ca/ a Patient Care Quality Review Board]. They review complaints that the Patient Care Quality Offices have not resolved. For more information, call 1-866-952-2448 or [http://www.patientcarequalityreviewboard.ca/ see the Boards’ website]. | ||
===If a doctor doesn’t get your informed consent=== | ===If a doctor doesn’t get your informed consent=== | ||
Doctors must fully inform their patients about the risks involved in any proposed medical procedure or treatment. In both medical and legal terminology, this is called | Doctors must fully inform their patients about the risks involved in any proposed medical procedure or treatment. In both medical and legal terminology, this is called '''informed consent'''. If a doctor does not get informed consent from a patient, and the patient is injured, the patient may have grounds to sue the doctor for medical malpractice. | ||
A doctor has to tell you about your condition, the nature of the proposed treatment, the risks of the treatment, and other options you may have. You can’t give informed consent to treatment unless the doctor gives you all this information. A doctor does not have to explain every possible risk, just the risks a reasonable patient would want to know before deciding on treatment. This includes explaining what could happen and the likelihood of it happening. | A doctor has to tell you about your condition, the nature of the proposed treatment, the risks of the treatment, and other options you may have. You can’t give informed consent to treatment unless the doctor gives you all this information. A doctor does not have to explain every possible risk, just the risks a reasonable patient would want to know before deciding on treatment. This includes explaining what could happen and the likelihood of it happening. | ||
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===There are time limits to sue for medical malpractice=== | ===There are time limits to sue for medical malpractice=== | ||
Generally, you must start a medical malpractice lawsuit within '''two years''' of when the malpractice occurred. This is called the '''limitation period'''. | Generally, you must start a medical 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 have realized they suffered an injury from the health care provider’s actions and that the court system is an appropriate place to seek a remedy. Even if you’re well during this time, you should act quickly — while witnesses are still available and their memories are fresh. This is the general rule, but there are exceptions when the two-year limitation period starts running at a different time. To learn more about how the limitation period might affect your ability to bring a lawsuit, seek legal advice. | More precisely, it’s within two years of when a reasonable person would have realized they suffered an injury from the health care provider’s actions and that the court system is an appropriate place to seek a remedy. Even if you’re well during this time, you should act quickly — while witnesses are still available and their memories are fresh. This is the general rule, but there are exceptions when the two-year limitation period starts running at a different time. To learn more about how the limitation period might affect your ability to bring a lawsuit, seek legal advice. | ||
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Suing for medical malpractice can take a long time — often two to five years or more from start to finish. | Suing for medical malpractice can take a long time — often two to five years or more from start to finish. | ||
Some lawyers will work for a '''contingency fee''', meaning the 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 of BC has rules governing contingency fee agreements to ensure they are fair to clients. For more details, | Some lawyers will work for a '''contingency fee''', meaning the 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 of BC has rules governing contingency fee agreements to ensure they are fair to clients. For more details, [[Lawyers' Fees|see our information on lawyers’ fees]]. | ||
===Making a complaint about a doctor at the same time as suing=== | ===Making a complaint about a doctor at the same time as suing=== | ||
If you are concerned about a doctor’s conduct or the treatment you received, you can make a complaint to the College of Physicians and Surgeons of BC, the governing body for doctors in the province. There is no time limit for complaining to the College. And you can do this at the same time as you sue for malpractice. The College cannot order a doctor to pay you money — only a court can do that. But they can discipline the doctor or have them take remedial steps. | If you are concerned about a doctor’s conduct or the treatment you received, you can make a complaint to the College of Physicians and Surgeons of BC, the governing body for doctors in the province. There is no time limit for complaining to the College. And you can do this at the same time as you sue for malpractice. The College cannot order a doctor to pay you money — only a court can do that. But they can discipline the doctor or have them take remedial steps. We explain [[If You Have a Problem with a Doctor|how to make a complaint about a doctor]]. | ||
== | ==Who can help== | ||
===With more information=== | ===With more information=== | ||
The '''College of Physicians and Surgeons of BC''' website explains the process to make a complaint about a doctor, and has a complaint form you can download. | The '''College of Physicians and Surgeons of BC''' website explains the process to make a complaint about a doctor, and has a complaint form you can download. | ||
* Call 1-800-461-3008 (toll-free) | |||
* [https://www.cpsbc.ca/for-public/file-complaint Visit website] | |||
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