Sandra Zisckind, Lawyer, Founding & Managing Partner

Sandra Zisckind practices exclusively in the area of Plaintiff Personal Injury Litigation. Sandra received her Bachelor of Arts degree from York University where she specialized in Political Science. Learn more

Mar 24, 2021 | See all posts

What Is Medical Malpractice?

Most patients walk into a hospital or clinic trusting that the people treating them will meet a reasonable standard of care. When that trust is broken, when a preventable mistake causes real, lasting harm, the question quickly becomes: what counts as medical malpractice, and what can you actually do about it?

This guide explains what medical malpractice is under Canadian law, the kinds of situations that may qualify, who can be held responsible, and the steps patients and families typically take when something goes wrong.

Medical Malpractice, Defined

Medical malpractice happens when a health care provider fails to meet the accepted standard of care, and that failure causes injury to a patient. The standard of care is the level of skill, knowledge, and caution that a reasonably careful professional in the same field would provide under similar circumstances.

A poor outcome on its own is not malpractice. Medicine is complex, and not every complication is preventable. What turns a bad outcome into a potential legal claim is the link between a provider’s negligent conduct and the harm the patient suffered.

The Four Elements of a Medical Malpractice Claim

To succeed in a medical malpractice claim in Canada, a patient generally has to prove four things:

• Duty of care — the health care provider had a professional obligation to the patient.
• Breach of the standard of care — the provider’s actions, or failure to act, fell below what a reasonably competent professional would have done.
• Causation — the breach actually caused the injury, not something else.
• Damages — the patient suffered measurable harm, such as physical injury, additional medical costs, lost income, or pain and suffering.

Each of these elements has to be supported with evidence, including medical records and opinions from qualified medical professionals who can speak to what the standard of care required in that specific situation.

Common Examples of Medical Malpractice

Medical malpractice is a broad category. It can happen at any point in a patient’s care, from the first appointment through surgery, recovery, and follow-up. Some of the situations that commonly lead to claims include:

• Misdiagnosis or delayed diagnosis of serious conditions such as cancer, stroke, heart attack, or infection.
• Surgical errors, including operating on the wrong site, leaving instruments behind, or causing preventable damage to nerves, organs, or blood vessels.
• Birth injuries to the baby or mother, including injuries related to cerebral palsy, hypoxic ischemic encephalopathy (HIE), shoulder dystocia, or mismanaged caesarean sections.
• Medication errors, such as prescribing the wrong drug, the wrong dose, or a medication the patient is known to be allergic to.
• Anesthesia errors during surgery or other procedures.
• Failure to obtain informed consent — proceeding with a treatment or surgery without clearly explaining the known risks, benefits, and alternatives.
• Hospital errors, including patient falls, medication mix-ups, inadequate monitoring, and infections linked to poor infection control.
• Pediatric malpractice, where children are harmed through negligent diagnosis, treatment, or monitoring.

A single incident can also involve more than one provider or institution. A missed ultrasound finding, for example, might involve a technologist, a radiologist, the referring physician, and the hospital or imaging clinic.

Who Can Be Held Liable?

Many patients assume a medical malpractice claim is always against a single doctor. In practice, claims can be brought against any licensed health care provider or institution whose negligence contributed to the injury. That can include:

• Family doctors and general practitioners
• Specialists such as obstetricians, surgeons, anesthesiologists, and radiologists
• Nurses and nurse practitioners
• Midwives and doulas
• Pharmacists
• Hospitals and clinics (for their own negligence and, in some cases, for the conduct of their staff)
• Long-term care facilities

Doctors in Canada are typically defended by the Canadian Medical Protective Association (CMPA), which provides legal representation and funding for its members. Hospitals and nurses are usually covered by separate insurers or provincial arrangements. Claims against public hospitals often involve different procedural rules than claims against private clinics, and more than one defendant may be named in the same lawsuit.

Bad Outcomes vs. Malpractice

It is worth repeating: not every medical mistake, and certainly not every disappointing result, is malpractice. Courts recognize that medicine involves judgement calls and that reasonable professionals can sometimes arrive at different decisions without any of them being negligent.

A claim becomes viable when the evidence shows the provider’s conduct fell below what a reasonably competent professional would have done, and that this failure caused real harm. That is why early review of the medical records by qualified medical reviewers is such an important part of any case.

Deadlines Matter: Limitation Periods

Medical malpractice claims are subject to strict time limits, known as limitation periods. In Ontario, for example, the general rule under the Limitations Act, 2002 is that a claim must be started within two years of the date the patient knew, or ought to have known, that they had a claim. Other provinces, including Alberta and Saskatchewan, have their own limitation rules, and some situations; such as claims involving minors or patients who were not capable of recognizing the injury; follow different timelines.

There are also shorter notice periods in some cases, particularly for claims involving public hospitals or government-run facilities. Missing a limitation period can end a case before it begins, no matter how strong the underlying facts are. For anyone considering a claim, getting legal advice early, well before the two-year mark, is the safest approach.

What Compensation Can Cover

When a medical malpractice claim succeeds, compensation is meant to put the injured patient in the position they would have been in had the negligence not occurred, as closely as money can. Depending on the case, damages can include:

• Past and future medical expenses, including rehabilitation, assistive devices, medications, and in-home care
• Lost income and loss of future earning capacity
• Costs associated with long-term disability, including modifications to the home or vehicle
• Pain and suffering (subject to a cap set by the Supreme Court of Canada)
• Loss of care, guidance, and companionship for family members, where available under provincial law

Children with serious, lifelong conditions such as cerebral palsy caused by a birth injury may require care for decades. In those cases, economists, life-care planners, and medical professionals are typically involved to estimate the real long-term cost of care.

What to Do if You Suspect Medical Malpractice

If you or a family member may have been harmed by substandard medical care, a few practical steps can help protect both your health and any future legal claim:

• Get appropriate medical care first. Addressing ongoing health issues is the priority.
• Request your complete medical records from every provider and facility involved.
• Write down what happened while the details are fresh: dates, names, conversations, symptoms, and who you spoke to.
• Keep receipts and records of out-of-pocket expenses, missed work, and any assistive equipment or services.
• Speak to a medical malpractice lawyer early so the file can be reviewed before limitation periods become an issue.

How Diamond and Diamond Can Help

Medical malpractice cases are among the most document-heavy and medically complex claims in Canadian civil law. They usually require review of extensive hospital records, opinions from qualified medical reviewers, and detailed evidence of how the injury has affected the patient’s life now and in the future.

The team of lawyers at Diamond and Diamond has experience handling medical malpractice claims across Ontario, Alberta, Saskatchewan, and beyond, including birth injury cases, delayed cancer diagnoses, surgical errors, and hospital negligence.

If you believe you or a loved one has been harmed by negligent medical care, call our 24/7 injury hotline 1-800-567-HURT or visit diamondlaw.ca to speak to someone now. We offer free consultations and case evaluations.