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PUBLICATIONS
Suing a Health Professional
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by William R. Hunter
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Suing a health professional can be one of the most challenging lawsuits anyone can undertake as it is complex and will usually be vigorously contested. Therefore, a careful analysis should be completed at the outset, before incurring substantial costs, to determine whether there are reasonable prospects of success. To do the analysis, a detailed understanding of the law is necessary. Often lay persons equate bad results from a medical procedure with the negligence of the health professional and assume that since they have been harmed they will be successful in their lawsuit. This assumption is a recipe for disaster as Canadian law only attaches liability to a health professional in specific circumstances and not simply because of an unsuccessful procedure. In short, the health professional is not responsible for unfavourable results unless the health professional has not conducted his or her practice in accordance with the conduct of a prudent and diligent health professional in the same circumstances.
There are two broad areas where liability may be found. The first is in negligence, part of which is the informed consent of the patient, and the second is in battery.
Negligence
To be successful in a claim for negligence, the plaintiff must prove the following elements:
- A duty of care was owed by the medical professional to the plaintiff;
- That there has been a breach of that duty in that the health professional's conduct which is negligent or in breach of the standard of care required of him or her;
- Damages have been suffered by the plaintiff which have been caused by the conduct of the health professional;
- The damages are reasonably foreseeable as arising from the health professional's conduct.
Battery
Battery is an unprivileged and unconsented-to invasion of one's bodily security. It casts upon the health professional the onus of proving consent to what was done.
Battery is confined to those cases where (emergency situations aside) surgery or treatment has been carried out without any consent at all, or has gone beyond or differed from the procedures to which consent was given; or to those cases where the consent given, has been vitiated by the fraud or misrepresentation used to obtain it.
The cause of action appropriate in a case where a plaintiff claims that he was not informed of all of the risks involved in the medical treatment so that he could not give an informed consent is in negligence as opposed to the tort of battery.
Consent to a medical procedure may be expressly given or merely implied. It may be either oral or written. The onus of proving there was consent rests with the physician.
The health professional is required to make sure the patient understands the information given to the patient. The test is whether a fully informed reasonable person in the same circumstances would have chosen to consent to the procedure.
Limitation of Actions
Usually, any action against a health professional must be commenced within one year from the date that the injury occurred.
There are many subtleties in these actions which should be thoroughly discussed with your legal counsel before instigating an action.
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