The short answer is you shouldn’t
With the huge amount of information accessible on the internet, some who believe they have been injured through medical malpractice wish to explore pursuing a claim without a lawyer. They may be able to do their own research about what may have happened to them, and how the legal system functions. But research and information are probably not enough to meet the challenges of pursuing a medical malpractice case for most.
The high cost of legal counsel is undoubtedly a prime motive for some people to pursue these difficult and challenging cases on their own. Although individuals, with some exceptions (including minors and incapable parties), have the right to represent themselves in a lawsuit, it is generally not advisable to do so, particularly when it comes to complex medical malpractice cases.
You have the right to seek justice
If you or your family member have suffered an injury due to substandard medical care, you have the right to explore the options that are available to you. Importantly, a bad outcome does not necessarily mean bad care. It is important to examine what occurred and to recognize whether something went wrong because of a failure to provide a proper level of care or from the risks associated with an underlying illness.
There is a fundamental difference between feeling that you were wronged and proving you were wronged. A person suffering an adverse outcome following medical treatment might suspect substandard care, but expert medical opinion is required to prove a medical error. Something might have happened that appears to be obviously wrong, although it may not have happened in the way you thought it did. There could be different contributing factors that resulted in the harm that you need to address.
Elements of a medical malpractice case
In order for a claimant to be successful in a medical negligence case, there are three key elements that must be proven:
It is important to remember that all three elements must be met for an injured party to be successful in a lawsuit for medical negligence.
Regarding standard of care, an injured party must be able to prove that the medical provider(s) in question either did something that they shouldn’t have done or failed to do something that they should have done, that rises to the level of a breach of the standard of care.
Damages refer to compensation for the injuries and impairments suffered by the injured party. This can include pain and suffering, the impact on activities of daily living, care and treatment needs, the ability to gain and sustain education or employment, housekeeping abilities, amongst other claims. Given the expense of pursuing a medical negligence claim, the injuries should significantly impact the injured party in order to justify the expense of proceeding.
Causation requires that the injured party show a link between the alleged substandard care and the harm suffered. The legal test, put simply, requires that the medical practitioner’s actions or inactions must have been the cause of the injuries and impairments. The causation analysis is often very complicated in medical malpractice law as pre-existing disease or injury often precede the medical treatment at issue for many people. Those underlying conditions are not caused by negligence and often expose the person to the risk of ongoing illness even with the best medical care.
There are many situations in which an injured party’s claim may satisfy some of these requirements, but not all. Unfortunately, our legal system requires that all be satisfied for a claim to succeed.
The business of medical malpractice lawsuits
Proving the case requires opinions from medical experts. These experts must review the applicable medical records, provide opinions, in writing and later in testimony, if needed, that establish a breach of the standard of care, causation, and damages.
The cost of obtaining expert opinions can be significant, and, at times, may outweigh the value of the claim itself. Regrettably, this becomes an important consideration when determining the viability of a particular case, and a reality that injured parties and their families must consider. It is not prudent for the injured party to spend tens of thousands of dollars on expert opinions, and to invest many years of their time pursuing a lawsuit if the value of the claim is insufficient to justify that expense.
Given their scientific and complex nature, medical malpractice cases are typically more challenging than other personal injury cases. Further, these cases tend to be vigorously defended by the medical profession with their ample resources. The inherent complexity of these cases also tends to make them long and drawn out, taking many years to bring to conclusion.
In terms of navigating the lawsuit itself, there are many procedural requirements and important deadlines that must be met by all parties, or they risk the Court dismissing the claim. Further, as the expert opinion is a key component of every medical malpractice case, it is important to ensure that a claimant obtains supportive opinions that meet the Court’s requirements.
Experience is a significant asset when it comes to pursuing and navigating a medical malpractice claim.
Other avenues for injured victims
Thankfully, there are other mechanisms that injured parties and their families can successfully pursue, even if their situation is such that a lawsuit is not viable.
It is important to keep in mind that a civil lawsuit for medical malpractice can only result in financial compensation for the injured party. It cannot result in disciplinary action against the health care providers, nor is it likely to result in a bigger change in hospital or clinic policies. An injured party has the right to file an official complaint against the parties involved. This can be done through the governing body that regulates the medical professional involved, such as the College of Physicians and Surgeons for doctors or the College of Nurses of Ontario for nurses. These complaints are taken very seriously by the regulatory bodies and can result in sanctions and disciplinary action (such as a requirement for further education, a monetary fine, a requirement for supervision or the suspension of a medical license) against the medical professional involved.
A complaint can also be made directly to either patient relations or administration of the hospital involved, if applicable. These departments use these complaints to determine whether broader policy changes need to be implemented in their facility to prevent these mistakes from occurring again.
Self-representation can be stressful
Representing yourself in a medical malpractice case can be an overwhelming experience. Not only do you have to relive the incident, but you also face the stressful burden of proving your case. If an injured party is unsuccessful, they have not only invested a substantial amount of time, effort and expense in a losing case, but they could be ordered to pay the other side’s legal costs.
Seek legal advice before deciding to self-represent
Given the complexities involved in a medical malpractice lawsuit, it is advisable to consult with a medical malpractice lawyer and seek legal advice to assist with investigating a potential claim before starting a lawsuit.
At Gluckstein Lawyers your initial consultation is free with no obligation. Should we accept your case, we will represent you based on a contingency fee agreement. Under a contingency fee arrangement, we don’t get paid unless you get paid.
Our medical malpractice team includes lawyers with the expertise to litigate these challenging cases along with staff who bring an intimate knowledge of the medical system.
With our extensive trial experience, excellent negotiating skills, and thorough knowledge of the medical practitioner insurance claims process, we can develop and manage your case every step of the way.
