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Personal Injury

Legal timing tricky for medmal victims

Timing can be tricky for individuals who suspect they may be the victims of medical malpractice, Toronto personal injury lawyer Jessica Mahabir tells AdvocateDaily.com.

“Many times, I find that potential clients tend to contact us either really early or really late,” says Mahabir, an associate with Derfel Injury Lawyers, explaining that issues around timing arise because medical malpractice claims are unique in personal injury law for their reliance on expert opinion.  

“The case law in Ontario and from the Supreme Court of Canada says that in order to be successful in a medical malpractice action, you need an expert opinion,” she says. “It’s important to have an opinion from another doctor in the same area of expertise who will write a report and can take the stand at trial to say that the conduct of the doctor who performed the procedure was not up to par with the standard of care in Ontario.

"Lawyers and judges do not have the specialized medical knowledge to make decisions relating to the appropriate standard of care,” Mahabir adds.

If someone appears at her office the day after a procedure, unhappy with how it has gone, Mahabir says there’s often little she can do immediately.  

“There is not a great deal of documented medical evidence at that stage, so I tell the client that we can take our time and see what happens,” she says. “We don’t always know right away if the damage is permanent or whether anything can be done to fix or mitigate the problem.

“In many cases it can be quite helpful to get a second opinion from another doctor,” Mahabir adds.

At the other end of the scale, she says she often sees patients within days or weeks of the expiry of the two-year limitation period on most legal actions in the province.

“Sometimes a client will come in without having seen any medical professional since the procedure, which means they’ve not only been suffering with the consequences of the alleged malpractice but they also have no recorded evidence of their struggle,” she says. “It’s not necessarily fatal to a case, but it’s also not very helpful.”

Mahabir says making a late start on a medical malpractice action opens the plaintiff up to claims from the defendant that they have failed to mitigate any damage done.

“There could have been steps taken by other doctors in the intervening two years to correct or reverse the effects of the procedure at issue,” she says.

“If you’re just sitting at home letting it get worse, it’s not necessarily in the best interest of your own health or your claim. It’s expected that a reasonable person will take steps to ensure their own health or at least get a second opinion.”

In any case, Mahabir says the length of time a lawsuit will take to reach its conclusion means it’s always best for patients who suspect their doctor of negligence to continue with treatment elsewhere.

“As lawyers, the only thing we can get for people injured or adversely affected is money. We can’t return them to their state of health before the incident and we can’t help them from the perspective of physical or psychological damages,” she says.

One option for recourse often overlooked by patients is a complaint to the doctor's professional body, Mahabir says.

“If the damages are not significant, a lawsuit may not be worthwhile but it might be more appropriate to make a complaint,” she says. “It costs nothing and it alerts the College of Physicians to a problem with a particular doctor or procedure, in case others are also complaining about the same issues.

“Unfortunately, medical malpractice cases are expensive and can take a long time. Lawsuits don’t always give injured people the justice they’re seeking, but a complaint can often help with that,” Mahabir adds.

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