You have a malpractice claim if each of the following can be proven:
- The doctor did not meet a reasonable standard of care in providing or managing medical treatment. A higher standard of care is required of a specialist than a general practitioner. An error in judgment will not necessarily be a breach of the standard of care. In the most recent birth injury case decided May 31, 2016, the BC Supreme Court stated: “Mere errors of judgment in diagnosis or treatment are not necessarily negligent. On the other hand, just because the error involves an exercise of judgment will not preclude the possibility of a finding of negligence. The determinative factor is whether the doctor exercises the knowledge, skill and judgment of the careful and prudent doctor in the same circumstances.” The total award for the child (who suffered cerebral palsy with cognitive impairment and quadriplegia) was $5,200,000.
- The failure to provide reasonable care caused you injury. A doctor may make any number of mistakes in your treatment, but one or more of those mistakes must be responsible for the injury in order for you to have a claim. If the injury was caused by an inherent risk of the treatment, especially if you were reasonably informed of the risk, you may not have a claim.
- The injury caused you damages. You are entitled to damages that can be proven to have been caused by the negligence of the doctor. Complicating factors, including prior medical problems, may in some cases be responsible for some or all of the damages.
The determination of the viability of a claim is an ongoing process which will affect your decision to commence a claim and to proceed with the claim to the point of trial. Apart from the factors indicated above, the cost of proving the claim, the risk of the claim not being accepted by the Court and the value of the damages are major considerations in determining if a claim is viable.