Medical Malpractice FAQs

One of the primary causes of cerebral palsy include a lack of oxygen to a baby in utero, or head trauma during delivery. Sometimes a sustained lack of oxygen causing cerebral palsy is preventable through reasonable medical care of doctors and nurses. Sometimes head trauma is avoidable through the same reasonable care. If medical professionals fail to take reasonable care to avoid these known risk factors for cerebral palsy, they (or their insurer) are liable for the severely harmful consequences. The child’s family would be able to advance a medical malpractice case to recover the very significant lifetime costs associated with the disabling condition.

Misdiagnosis resulting in injuries are common in medical malpractice claims. In order to assess whether the misdiagnosis resulted from negligence, we look whether the doctor conducted an appropriate “differential diagnosis”. This requires the doctor to list in his or her head all the possible medical explanations for a patient’s symptoms/complaint and then systematically take steps to rule out the most severe possible explanation via tests/imaging, etc. If a doctor fails to do this and an injury results, you may be entitled to compensation.

All medical professionals must have a patient’s informed consent in order to affect a particular treatment. This means that all risks material to the treatment must be thoroughly explained to the patient in advance and the patient must consent to accepting these risks. If you suffered a risk material to the treatment, which your doctor didn’t discuss with you in advance, you may have a medical malpractice claim. However, you must still prove that a reasonable patient in your shoes likely would not have consented to the treatment even if the risks had been disclosed.

Summarized, a patient needs to prove three things to win a medical malpractice claim against a doctor, nurse or hospital: (1) that the medical professional failed to meet the standard of care applicable to his or her specialty (i.e. negligence), (2) that the patient suffered harm, and (3) that the harm was caused by the substandard care (i.e. causation). While this may sound straight-forward, in many cases these elements are medically complex and in all cases require the supportive opinions of qualified medical experts.

Limitation periods are set by legislation. The impose a deadline by which an injured person must file a lawsuit. For injury claims in Nova Scotia, the general limitation period is 2 years from the date of your injury. There are some important exceptions however; discoverability applies (meaning that the clock doesn’t start ticking until after you reasonably know that you’ve been injured by someone else’s negligence). Also, in Nova Scotia there is no limitation period for sexual abuse claims.