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Medical Malpractice – Important Facts

If you, a friend or a family member have been injured due to an error made by a medical professional or medical institution, you may be entitled to compensation for your injuries and losses. Medical malpractice claims are difficult and often complex due to the legal and evidentiary standards of proof required.

To be successful in a medical malpractice claim, you must:

• prove that there was an error in judgment or practice on behalf of the medical practitioner or medical institution
• prove that the error in judgment or practice was one that fell below the standard of care
• prove that the error in judgment or practice caused the injury

Who Defends the Medical Practitioners?

If medical doctors in BC are sued in medical negligence, the Canadian Medical Protective Association (“CMPA”) will be involved by providing a defence to the doctors. The CMPA is funded by annual fees paid by doctors and provincial government subsidies.

If hospitals or hospital employees (i.e. nurses) are sued in medical negligence, the Health Care Protection Program, which is operated by the provincial government, will be involved by providing a defence to the hospital and its employees.

Other health care providers, such as dentists and chiropractors, are required to have liability insurance which will provide a defence if they are sued in medical negligence.

Medical Malpractice Limitation Period

There are time limits to begin a lawsuit in BC which are outlined in a provincial statute called the Limitation Act. If you fail to reach a settlement or start a lawsuit before the “limitation date”, your claim will expire and you will not be entitled to any compensation.

For adult medical malpractice claims, there is a 2 year limitation date which starts from the date the error was made.

Delay of 2 Year Limitation Period

The start of the limitation date may be delayed in certain exceptional circumstances.

The limitation date may be extended if you did not know, and could not reasonably have known, about the possibility that the medical professional or medical institution made an error until a later date. For example, a patient undergoes surgery in 2017. In 2018 after feeling unwell, the patient has an x-ray which shows that a medical tool as was left in the body. Assuming there was no reason to suspect wrongdoing prior to the x-ray, the limitation date will start on the date of the x-ray when the wrongdoing was discovered as opposed to the date of the initial surgery.

The limitation will not be extended if the injuries prove to be more serious then initially believed. This issue was recently considered in Bell v. Wigmore 2017 BCCA 82 which was reviewed in a prior Holness Law Group blog post.

If you believe that you have a possible medical malpractice claim, it is important to contact us soon as possible to learn about your legal rights and obligations.

Tags: Limitation Act, limitation period, Medical Malpractice

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"Jacqueline A. Small is a personal injury lawyer with over 15 years of experience and a partner with Holness Law Group."

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