The Risks and Rewards of Medical Negligence Law

This article is the first in a series aimed at providing a detailed examination of the challenges and pitfalls in different types of medical negligence lawsuits. Each article will focus on specific injuries and will highlight the obstacles a plaintiff faces in bringing their case to a successful conclusion.

Introduction

The imbalance of knowledge and power between a health care provider and a patient is never more evident than when a patient believes they have been injured due to medical negligence. Add the discipline of law to the mix and it becomes clear why medical negligence cases have a well-deserved reputation for being intellectually challenging, laborious, and expensive. Patients who have suffered severe or catastrophic injuries while receiving health care often have the mistaken impression that it is impossible to win a case against a physician or other health care professional in Canada. While the odds may be stacked against them, in the right circumstances it is possible to successfully sue a health care provider in Canada.

Every medical negligence case is an opportunity to learn about a new area of medicine or to look at the issues in a new way. The lawyer taking on these cases must immerse themselves in complicated medical procedures and knowledge, even before the experts weigh in. This is because a significant understanding of the relevant medicine is necessary so you can ask the right questions and ensure the causation case can be made out. In addition, standard of care issues can be complex and a solid understanding of the complexities of the healthcare system is required. Care providers work in a teambased health care system where the questions of who, what, where, when and why, can become a gordian knot of overlapping responsibilities that must be teased out. The convergence of these issues makes for an environment that caused one court to note that:

  1. … Medical negligence claims are expensive to prosecute. They are not for the weakkneed. Almost invariably, they are complex and time-consuming and must be prosecuted vigorously. …1

The Impact of the Team-Based Approach in Medicine

As the provision of health care has evolved over the past decades, the court’s view of the role of various health care professionals has also evolved. Historically the health care hierarchy was viewed as a pyramid, with medical doctors at the top, assuming overall diagnostic and treatment responsibility. This was followed by the nursing profession, with allied health care professionals forming the next layer and assistants and order-lies at the base of the pyramid. This pyramid is flattening due in large part to efforts over the last two decades to bring all health care professions under umbrella legislation. 2 This revised legislative structure has been accompanied by expansion in the scopes of practice of many health care professionals. Now, the scopes of practice of regulated professions may have overlapping or shared activities and fewer exclusive practices. This, of course, has had an impact on the standard of practice expected of various health care professionals. As scopes of practice have expanded there has also been an increase in the team-based approach to delivering health care services. These collaborative approaches have been shown to improve health care quality and safety as well as patient outcomes.3


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Brenda Osmond

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