Medical Malpractice Claims in Ontario

What a lawyer looks at first

A lawyer assessing a possible medical claim typically asks three questions:

1. What exactly happened? This means the treatment given or not given, and when.

2. Did the care fall short of what was expected of that professional? The legal test for this is found in court decisions, which this guide does not cover. It is usually answered with the help of medical opinion, and a poor result alone does not answer it.

3. Did any shortfall actually cause the harm? This is separate from the second question and is often the harder one, particularly where the patient was already unwell.

Why causation is often the difficult part

Take a delayed diagnosis. Even if the delay was a shortfall, the other side may argue the outcome would have been the same, because the illness was already advanced or earlier treatment would not have changed it.

Answering that usually requires medical evidence about what would likely have happened with earlier care. How strictly a court requires causation to be proved is a legal question that depends on the case law and the facts.

Consent to treatment

Separately from the quality of treatment, Ontario law sets requirements for consent. Under the Health Care Consent Act, 1996, a health practitioner who proposes a treatment must not administer it unless the person, if the practitioner considers them capable, has consented, or a substitute decision-maker has consented for a person the practitioner considers incapable (s. 10(1)). The Act also contains exceptions, for example for emergencies (s. 25).

Section 11(1) lists four elements of valid consent: it must relate to the treatment, be informed, be given voluntarily, and not be obtained by misrepresentation or fraud.

Under section 11(2), consent is informed when the person received the information that a reasonable person in the same circumstances would require to decide about the treatment, and received responses to any requests for additional information. Section 11(3) names the subjects covered:

• What the treatment is
• Its expected benefits
• Its material risks
• Its material side effects
• Other options available
• What is likely to happen without it

Whether a failure to give this information supports a civil claim, and what a claimant must prove for it, are legal questions beyond this guide. A lawyer can advise on them.

Who might be involved

The Regulated Health Professions Act, 1991 lists, in Schedule 1, health profession Acts that include medicine, midwifery, nursing, dentistry, chiropractic and pharmacy. Which parties to name is a decision a lawyer makes after reviewing the records.

Complaints to a professional college

A court claim for damages is separate from a complaint about a professional's conduct. Under the Health Professions Procedural Code in the Regulated Health Professions Act, 1991, a panel of the Inquiries, Complaints and Reports Committee investigates a complaint filed with a college's Registrar about a member's conduct or actions (Code, s. 25(1)). The same Act also refers to the College of Physicians and Surgeons of Ontario, the physicians' college (for example s. 33(2)(c)).

A college complaint is not a lawsuit, and this guide does not describe how long a complaint takes or what outcome to expect.

Who defends the claim

Who defends a claim, and who pays, depends on who is named and what coverage or arrangements apply to them. This guide does not describe any particular defence organisation or predict how any defendant will respond. A lawyer can explain the position in a specific case.

Deadlines

The Limitations Act, 2002 sets a basic limitation period of two years from the day a claim is discovered (s. 4). Under section 5(1), discovery depends on when the person first knew, or a reasonable person in their situation ought to have known, four things: that the harm occurred, that an act or omission caused it, that the act or omission was the defendant's, and that a proceeding would be an appropriate way to seek a remedy.

Section 5(2) adds a presumption that the person knew these things on the day of the act or omission unless the contrary is proved. That means a later discovery date is something a claimant has to be able to show.

A separate ultimate period of 15 years from the act or omission applies (s. 15(2)). It does not run in some circumstances, including while a person is incapable of starting a proceeding and has no litigation guardian, while a minor has no litigation guardian, or while the defendant wilfully conceals that the harm occurred, that an act or omission caused it, or whose act or omission it was (s. 15(4)). The person with the claim has the burden of proving that one of these exceptions applies (s. 15(5)). For minors, the basic period also does not run while the child has no litigation guardian (s. 6). See child injury claims.

Because discovery dates are often contested, the deadline in a particular case should be confirmed with a lawyer as soon as possible.

What the process involves

1. Records. Complete hospital and physician records, imaging, nursing notes and medication records are gathered.
2. Review. A lawyer assesses the records, and may seek medical opinion, to decide whether there is a basis to proceed.
3. A proceeding is started before the limitation period ends, if the matter goes ahead.
4. Later steps follow the court's rules and depend on the case.

How long a case takes and what it costs depend on its complexity. Under the Solicitors Act (s. 28.1), a solicitor may enter into a contingency fee agreement, which must be in writing. O. Reg. 563/20 adds further requirements: percentage-based agreements generally use a standard form published by the Law Society of Ontario (s. 7(1)), and other agreements must include a statement about disbursements and taxes (s. 7(2)). The terms of any agreement, including who is responsible for disbursements, are worth reading closely.