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What is medical malpractice and can I pursue legal action?

Victor Lewin - Wednesday, April 26, 2017

A successful medical malpractice case requires that the Plaintiff prove the following criteria:

  • 1. Standard of care;
  • 2. Breach of the standard of care;
  • 3. Causation; and
  • 4. Damages

Standard of care

The Plaintiff must establish what the standard expected of a reasonably competent doctor, nurse or other health care professional is under the circumstances. Though a healthcare professional is not necessarily liable for all the harms a patient may experience, he or she may be liable if he or she provided care to a patient that is improper, unskilled or negligent. For a successful medical malpractice suit, a Plaintiff must prove that a healthcare professional breached the standard of care by doing, or not doing, something a reasonably competent health care professional would have done. An error in judgment is not always negligent: care must be below the expected standard.

When a health care professional has breached his or her duty of care by providing care that is substandard (i.e. improper, unskilled or negligent), a Plaintiff must prove that breach is what caused, or materially contributed to, the injuries the patient suffered.

Substandard medical care can cause serious injury to a patient. Examples of such injuries are as follows:

Cerebral palsy (CP)

Erb's palsy

Shoulder dystocia

Infant brain damage and hypoxic brain injury

Surgical errors

Misdiagnosis or delayed diagnosis of cancer, stroke, or heart attack

Pathology and radiology errors


It important to note that even though a breach of the standard of care has occurred, if this breach does not cause a patient’s injury, or if a patient’s injury was inevitable regardless of the care provided, a case for medical malpractice will not be viable.

In order for causation to be established, a patient’s injury must have been caused by the improper, unskilled or negligent treatment provided by a health care professional.

Damages is the last of the four components required to establish a claim for medical malpractice. Some examples of damages in a medical malpractice claim are as follows:

Medical care and expenses

Loss of earnings or earning capacity

Pain and suffering

Loss of enjoyment of life

Loss of housekeeping ability

Considerable damage must be shown to be the result of negligent care that caused the subsequent injury to a patient in order to establish damages in a claim for medical malpractice.

Can I pursue legal action?

Each of the above noted criteria must be established on a balance of probabilities for a medical malpractice case to be successful. Establishing only a breach of the standard of care and/or causation alone is insufficient.

Our process

We are a personal injury law firm based in Halifax who represent individuals throughout Nova Scotia, New Brunswick and Prince Edward Island who have been injured or harmed by medical malpractice or doctor and hospital errors.

Our experienced medical malpractice lawyers are adept at understanding the complex requirements of pursuing a claim for medical malpractice. Our staff are readily available to speak with you about your personal injury.

By way of an initial consultation, we will provide you with our opinion as to whether or not you may have cause to pursue a claim for medical malpractice. There is no charge for our consultation, and we work on a contingency fee basis should we pursue a case on your behalf.

If you have been injured by medical malpractice, we encourage you to contact us today.

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