Quality assessments - timely reporting
Introduction to Medical Malpractice Cases

Posted on August 15th, 2019 by Don Kunkel

A case of medical malpractice occurs when a doctor or medical professional harms a patient or fails to competently perform their medical duties resulting in a breech in the established standard of care for the medical discipline.

Basic Requirements for a Medical Malpractice Claim

To prove that medical malpractice has taken place, four basic requirements must be present. Medical Malpractice Cases

  • A relationship between the doctor and patient existed.Proof of an existing relationship between the doctor being sued and the patient in question is necessary. For example, you cannot sue a doctor you overheard giving advice to another patient. However, if a doctor began seeing and treating you, a doctor and patient relationship clearly existed.
  • The doctor was negligent.Being unhappy with the care, treatment, or results you received does not necessarily mean the doctor is guilty of medical malpractice. It must be proven that the doctor who treated you caused harm that a competent doctor, working under the same circumstances, would not have. Care by the doctor is not required to be the best possible care, but the doctor must be reasonably skillful and careful. This distinction falls under the medical standard of care.
  • Negligence by the doctor caused harm. Malpractice cases often involve patients who have a pre-existing illness or injury, so it can be difficult to prove if the doctor’s negligence caused further harm, or if the illness or injury simply progressed. It must be proven that, more likely than not, the doctor’s negligence directly caused harm.
  • The harm caused damages.
    • Some examples of damages include:
      • physical pain
      • mental anguish
      • additional medical bills
      • lost work and lost earning capacity.

How a Medical Malpractice Review or Assessment Proceeds

Law surrounding medical malpractice is regulated by a complex body of rules which may vary depending on the province you live in. It is imperative that you seek representation from a lawyer before proceeding with your claim. A general limitation period exists depending on which province you are pursuing a legal claim. If you file a medical malpractice claim after the limitation deadline, the claim may be invalid because it was files to late.

Medical malpractice can also arise due to hospital system failures, and the hospital can also be held accountable at times for breach in standard of care.

Once you have found a lawyer to represent you, the evaluation proceeds as follows:

  • No Charge Pre-Screen. Once your lawyer contacts AssessMed, senior management and the medical directors of AssessMed will review the case with the plaintiff’s lawyer to get a summary of the events and potential damages. The IME provider will then provide the lawyer with appropriate experts who can perform a file review to give the lawyer an indication of if the expert feels there has been a breach in the standard of care, and potentially if there are damages arising from the breach in standard of care
  • Expert Selection. The lawyer will decide on most appropriate expert, and before any medical information is shared with the expert, AssessMed senior management checks for any conflicting relationships between the expert who will be reviewing the file, and the doctor who’s standard of care is in question.
  • Initial File Review. Once the expert is chosen and conflict is cleared, AssessMed will send the medical file along with letter of direction from the lawyer to the medical expert. Once the expert has reviewed the file, a teleconference will be set up between the lawyer and expert to discuss initial thoughts on standard of care, potential documents that may be missing, and potential alternative specialties of experts that may need to be involved to discuss standard of care or assess damages. The lawyer will decide at this time if they want to proceed with an in person assessment or a full report based on what the medical expert has to say. This limits costs in the event that the expert feels there was no breach in the standard of care, the lawyer can decide to not proceed with a written report.
  • Additional Cost and Written Report. After the phone call, a quote is provided with the additional cost to proceed with a written report, or in person and written report.
  • Diagnosis, Prognosis, Function, and Future Care Assessments. The medical expert, if able and willing, will complete an independent medical assessment to answer or clarify any questions surrounding the damages resulting from the confirmed breach in standard of care. There are times when an additional expert of a different specialty is required to assess decreased function as a result of the damages arising from the breach of standard of care and/or negligence of the doctor in question.

Choose an IME Provider to Manage Your Entire Assessment Process

Finding appropriate medical experts can be difficult, as these experts must appear in front of the Canadian Medical Protective Association (CMPA) and criticize fellow specialists. Some medical experts will avoid doing this at all costs.

It is important to choose an IME provider that is experienced at managing cases of this nature and has access to a roster of qualified experts who are capable of and willing to consult.

AssessMed has facilitated comprehensive, unbiased, objective, and evidence-based medical assessments and file reviews since 1991. AssessMed has a large network of experienced medical professionals that provide credible and defensible medical evaluations for all types of claims, including medical malpractice cases. AssessMed works on medical malpractice claims across Canada (British Columbia, Alberta, Saskatchewan, Ontario, Quebec, Nova Scotia, New Brunswick, and Newfoundland). Reports are developed using the best evidence and current medical best practices.

For more information on medical malpractice claims and how AssessMed can help, please contact us today.

AssessMed has been providing IME services to organizations across Canada since 1991. Contact us today to learn about our suite of CARF-accredited offerings.

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