Newfoundland Injury Law Blog

Why Most Medical Malpractice Victims Never Recover a Dime - Part 3

What is a Medical Malpractice Case?

You may have a medical malpractice case if you are injured as a result of negligent care while receiving medical treatment.  The landmark Harvard Medical Practice Study done in 1999 revealed that over half of all injuries caused by medical management (i.e., those not caused by the patient’s initial illness or injury) were preventable, and a quarter of those injuries were caused by negligence.  One-fifth of medical management errors occur outside of the hospital and inside a doctor’s office.

What Must be Proven to Win a Case?

Medical malpractice cases are among the most difficult a lawyer will ever handle.  A medical malpractice case requires the patient, the “plaintiff,” to prove that his or her doctor or hospital, the “defendant,” deviated so far from what is accepted as “standard” diagnosis and treatment that the law considers the defendant to have been “negligent.”  The plaintiff is also required to prove that the doctor's negligence was a substantial cause of the injury that the plaintiff has.  “Negligence” and “breach of standard of care” mean the same thing:  conduct which is not reasonable in all the circumstances.

Because of the tremendous hurdles to obtaining a recovery in a medical malpractice case, experienced malpractice lawyers agree that the injury suffered by the plaintiff must be significant.  The court system is simply not set up to handle “small” medical malpractice cases.  We believe that the settlement value must exceed $100,000, meaning you must have suffered a significant and permanent injury to warrant the expense and risk of prosecuting a malpractice case.

Your case must be proven by expert testimony.  That is, other doctors in the same specialty as the negligent doctor must be willing to say that the conduct of the defendant fell below accepted standards.  Simply making a mistake or getting a bad result is not enough – we must prove that it was a really major error which directly led to your injury.  Yes, it’s true.  Doctors often “get away with” malpractice because the injury they have caused is not severe.  I can’t do anything about that.

Remember, too, that just because serious injury or even death resulted from a doctor’s care, this does not mean that malpractice occurred.  People get sick and die each day from reasons other than malpractice.

Because the stakes are so high, I believe some statistics about Canadian medical malpractice lawsuits are worth considering.  95% of plaintiff successes are settlements, not judgments.  Many of those settlements occur on the courtroom steps.  Disbursements for effective prosecution of a medical malpractice action are measured in tens of thousands of dollars, with an average of $100,000 per trial. 

New Canadian medical malpractice claim filings run at about 1400 per year.  This represents one per fifty doctors.  Settlements occur at 30% as a proportion of new actions.  By contrast, the probability of success at trial is only 20%.

According to the landmark Harvard study, only about 2% of medically negligent occurrences are litigated.  Canadian studies agree that less than 10% of those suffering avoidable injury in the healthcare system are compensated.  In many cases, the patient does not know of the malpractice!  By contrast, more than 19 out of 20 medical malpractice enquires are ill-founded or have a fatal flaw.

The chances of successful judgment after trial are very low, and the costs very high.  Therefore, the first focus must be on establishing whether the action has sufficient promise to persuade the defence organization to make an offer of settlement.  For promising cases, the value of that offer can be maximized by robust expert written opinion.