Medical Malpractice (No. 420)
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Lindsay Johnston, Harper Grey and Dionne Liu, Harper Grey in June 2018.|
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.
- 1 Understand your legal rights
- 1.1 The legal duty to give proper medical care
- 1.2 If your doctor or health care provider is negligent
- 1.3 If there is a delay in your diagnosis
- 1.4 If you prove negligence, a court may award damages
- 1.5 If others may be responsible
- 1.6 If a doctor doesn’t get your informed consent
- 1.7 Your responsibilities as a patient
- 2 Practical considerations
- 3 Get help
Understand your legal rights
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.
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 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. Our information on if you have a problem with a doctor (no. 423) explains how to make a complaint about a doctor.
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.
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
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.
Your doctor or health care provider must meet a standard of care
The standard of care 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 may be affected by the level of hospital that treats you.
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.
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 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 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.
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.
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.
Hospitals 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 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 health care they provide.
Complaints that hospitals can’t resolve
Each health authority in British Columbia has a Patient Care Quality Office to deal with complaints that hospitals cannot resolve. Each health authority also has 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 see the Boards’ website.
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 "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.
If you suffer an injury or illness after medical treatment, and it was a known risk that your doctor did not tell you about before you agreed to the treatment, it could be malpractice. A court will consider whether a reasonable person would have consented to the treatment if they had been told of the risks. In some cases, the failure to get any consent at all may also be an assault or battery. If you have experienced an assault during medical treatment, you can contact the police.
Your responsibilities as a patient
As a patient, you have the power to manage your health care. 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, 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. For example, if you get sick after surgery, it would be hard to prove that a surgeon was negligent in operating on you, if you don’t follow the surgeon’s instructions for recovery.
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.
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.
If you have questions or concerns about medical treatment you received, talk to your health care provider. Then, if you feel there may have been medical malpractice, get legal advice right away.
The time and cost to bring a lawsuit
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, see our information on lawyers’ fees (no. 438).
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. Our information on if you have a problem with a doctor (no. 423) explains how to make a complaint.
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.
- Toll-free: 1-800-461-3008
- Web: cpsbc.ca
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