Script 420 gives information only, not legal advice. If you have a legal problem or need legal advice, you should speak to a lawyer. For the name of a lawyer to consult, call Lawyer Referral at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in British Columbia.
Legal duty to give proper medical care
All doctors, nurses, hospitals, and other health care providers have a legal duty to provide proper medical care to patients. Doctors can refuse to accept a patient for personal reasons or if they and the patient disagree over treatment. But doctors who accept a patient must give that patient proper medical care. If they fail to give that care, a patient can sue them for medical malpractice. The two main types of medical malpractice are negligence and failure to get a patient’s informed consent. And in some cases, the failure to get informed consent may also be an assault.
Doctors or health care providers are negligent if they fail to give you the type (or standard) of care that a reasonable doctor or health care provider would give in similar circumstances. If the negligence causes you injuries or illness, then the doctor or health care provider may be liable to you (have to pay you). It’s no excuse for a doctor to say: “I did my best. I just didn’t know any better.” If the doctor should have known better, they may be liable. For example, you may complain to your doctor of severe head pain. He doesn’t pay attention for some reason. Maybe he’s in a hurry to get to the hospital, so he tells you to take two aspirins, go to bed, and call him in a day or two if you’re not better. It turns out that you have something seriously wrong, and his failure to detect the problem puts your health in danger. If the doctor was clearly wrong, you can sue for malpractice and probably win. Whether the doctor was negligent depends on whether a reasonably competent doctor (of the same specialty) would have avoided the error or omission.
Doctors and health care providers are not liable for every mistake. The law realizes that doctors often have to make quick decisions without the best information. So taking the example above, let’s say you complain to your doctor of severe head pain. He pays attention and carefully takes your medical history, listens to you describe your symptoms, and orders the right tests. Then he decides that you have an ordinary tension headache that will go away. Later, it turns out that your doctor was wrong, and his mistake has put your health in danger. In this case, your doctor may have exercised proper care but still made a mistake. That’s probably the case if other doctors would have treated you the same way. You probably won’t win if you sue the doctor for malpractice. In other words, the key issue is whether the doctor made a reasonable judgment call that reasonable doctors would have made in the same circumstances - even if it turns out later to be the wrong judgment.
The standard of care differs from place to place. It also varies with the level of specialty of the doctor - the standard may be higher for specialists. It also varies with time - today’s standard may not be good enough next year. You can’t always expect the best care available at the most sophisticated research hospital. The standard of care is based on the community and hospital that treat you. You can’t judge a small-town doctor in an isolated BC town by the same standard as a doctor at Vancouver General Hospital.
In summary, not every mistake or bad result automatically means there was negligence. A doctor may take all the right steps and still make a mistake or get a bad result.
If you prove there was negligence and the negligence caused your injury or illness, a court will normally order the doctor, hospital, or health care provider to pay you for the things the negligence caused, including your lost earnings, medical and other expenses, “pain and suffering,” and loss of enjoyment of life. This last category is the court’s attempt to compensate you for the effect of an error on your life in general. The doctor is responsible for only the harm that his negligence caused. For example, say you needed surgery that would leave you with a mild disability if done properly. But the surgeon was negligent and caused you a greater disability. In this case, you would be paid only for the extra disability caused by the negligence, not for the mild disability you still would have had if the surgeon had not been negligent.
If a doctor delegates some work to someone else, the doctor is generally still legally responsible for the work. If a doctor leaves a patient in the care of another doctor, both doctors are responsible. If an inexperienced intern performs the duties of a doctor, the intern has to give the same medical care the doctor gives. But a doctor can rely on the employees of a medical institution and expect that they’ll meet the standard of care required in their jobs. So if a doctor leaves proper instructions with a nurse who doesn’t follow them, the nurse, not the doctor, is normally responsible.
Hospitals also have a duty to exercise a proper standard of care. A hospital’s duty is to take reasonable care in running the hospital to avoid harming patients. This includes appointing enough competent staff, ensuring that the staff act within their competence level, ensuring timely treatment, and taking the right steps to protect patients from infections from other patients.
As a patient, you are also responsible for your care. You must give the doctor all the important information about your condition, your medical history, and any other relevant subject. If you don’t, and that leads to an error in diagnosis or treatment, it will be your fault and not the doctor’s. As well, a doctor is not responsible for problems if you don’t follow the doctor’s advice and your failure causes the problem you complain about. For example, it would be hard to prove that a surgeon was negligent in operating on you, if you don’t follow the surgeon’s instructions about diet and exercise after the operation - and then you get sick from ignoring those instructions.
Failure to get a patient’s informed consent
A doctor has to tell you about your condition, the nature of the treatment proposed, the risks of the treatment, and other options that you may have. You can’t consent to treatment unless the doctor gives you all this information. When a doctor tells you of the risks, they don’t have to explain all the possible risks – just those that a reasonable patient would want to know before deciding about treatment. If a doctor doesn’t give you all this information, the failure could be medical malpractice, but only if the failure caused your problems. Even if a doctor doesn’t give you all the information, the doctor won’t be liable if a reasonable person in your position would have agreed to the treatment anyway, even if the doctor had given them all the information.
A third type of malpractice
Besides negligence and lack of informed consent, there is a third type of malpractice. Recently, courts have said doctors may be responsible if they break the patient-doctor contract. This is a very complicated area of malpractice law, which this script does not explain. For example, one issue may be who has a contract with the doctor: you or the Medical Services Plan. Your lawyer will discuss it with you if it applies to your case.
If you suffer malpractice: legal advice and time limits for suing
If you have questions or concerns about your treatment, talk to your doctor. Then, if you feel that you’ve been the victim of medical malpractice, get legal advice right away. Generally, you must start a malpractice lawsuit within two years of when the malpractice occurred. This time is called the limitation period. More precisely, it’s within two years of when a reasonable person would realize malpractice might have occurred - knowing what you learned along the way. Even if you’re well during this time, you should act quickly - while witnesses are still available and their memories are fresh.
If you start a lawsuit, you have to be patient. Malpractice suits often take two to five years or more from start to finish.
You can also contact the College of Physicians and Surgeons of BC at 604.733.7758 in Vancouver and 1.800.461.3008 elsewhere in BC. Its website is www.cpsbc.ca. The College is the organization that licenses all BC doctors. It protects the public by setting standards for doctors and by monitoring, evaluating, and disciplining them. But it cannot order a doctor to pay you money - only a court can do that. Check script 423, called “Making a Complaint against Your Doctor,” for more information.
Costs of suing
Some lawyers will agree to work for you and charge a contingency fee, meaning their fee depends on the result of the case. If you lose, the lawyer gets nothing. If you win, the lawyer gets part of your compensation award. Win or lose, though, you usually have to pay the expenses of suing, which can be thousands of dollars, especially if you have to hire experts to help you prove your case. The Law Society regulates contingency fee contracts to ensure they are fair to clients. For more information about lawyers’ fees, check 438, called “Lawyers’ fees.”
[updated June 2012]
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