What is Bad Faith in an LTD Claim & How Do I Prove It?

Even in a routine visit with your family doctor, the chance for error exists. Whether it’s a misdiagnosis, a prescription error, or a more serious surgical procedure gone wrong, these mistakes may warrant a case for medical malpractice or medical negligence claim.

Despite life-changing outcomes, some victims don’t seek compensation because they’re not aware if medical malpractice or negligence occurred in their specific situation. Understanding the key difference between medical negligence and malpractice can help you determine what claim you could reasonably make to pursue legal action.

Medical Malpractice vs. Negligence

Medical professionals owe patients a standard of care to provide adequate treatment. If another physician with similar education and training would have acted in the same way in a given medical situation, this is considered to be the average standard of care against which the performance of a healthcare provider is judged. Both negligence and medical malpractice involve a breach in the standard of care that caused an injury or death. Often the terms are used interchangeably but there is one small difference between them.

What is Medical Negligence?

In personal injury law, medical negligence occurs when a healthcare professional disregards the basic duties of patient care, either through oversights, ignorance, or unintentional mistakes. Even though the physician may not have intended to cause harm, the failure to recognize certain factors or take appropriate action could lead to life-threatening circumstances for the patient. To file a claim, a medical negligence lawyer must be able to prove that a medical professional (or institution) breached their standard of care to protect your safety and that this breach of duty caused injury or caused an existing condition to get worse.

What is Medical Malpractice?

Medical malpractice occurs in many of the same settings but has far greater severity. Unlike negligence, the medical practitioner is aware of the potential consequences of their actions (or inactions) and proceeds anyway. In other words, the biggest difference between medical malpractice and negligence is whether the injury was caused by an avoidable but unintentional mistake (negligence) or an intentionally negligent action (malpractice).

Examples of Medical Malpractice vs. Negligence

Medical negligence becomes malpractice when the intentional negligence of a physician is a direct cause of a patient’s harm or injury. Worst-case scenarios leave patients seriously injured or with a rapid deterioration of their medical condition.

Medication prescriptions are a common area in which medical negligence occurs. For example, a doctor could prescribe a medication without noting a harmful drug interaction leading to complications that could range from mild discomfort to critical side effects. Some more severe examples include giving the wrong dose of anesthesia or failing to provide the proper aftercare following surgery.

Surgery is a well-known category for medical malpractice to occur. Let’s say a surgical team is rushing to perform a last-minute surgery and opts to forgo sterilizing some of the surgical equipment. This decision (inaction) could result in an infection or worse for the patient.

Another example of medical malpractice could be a doctor failing to check the medical ID wristband of a patient before surgery. The surgery is considered to be high risk and leads to excess fluid around the brain causing the patient to suffer a debilitating stroke. A strong medical malpractice claim could be made in this scenario as the doctor must confirm the patient’s identity before operating.

Different Types of Medical Malpractice

It’s not just doctors and surgeons who can be held accountable for medical malpractice. Nurses, managers, supervisors, and healthcare facilities can also be held liable if they neglect to provide adequate supervision or delegate tasks appropriately. The same is also true if the employer hires unqualified staff, resulting in harm to a patient. Though there are many types of medical malpractice, there are some cases that happen more often.


As the name suggests, misdiagnosis qualifies as malpractice when a doctor or medical professional fails to diagnose the correct illness. Misdiagnosis prevents the patient from receiving the necessary treatment.

Delayed Diagnosis

This could be when a doctor makes an incorrect diagnosis that causes a condition or disease to get worse. Even though they may reach the correct diagnosis later, you may still have grounds for a medical malpractice claim.

Failure to Treat

The doctor has arrived at the correct diagnosis but fails to provide adequate treatment. This could look like releasing a patient too soon, failing to offer follow-up care, or neglecting to refer the patient to a specialist.

Surgical Errors

Surgical errors can have a significant impact on a patient’s quality of life. For example, performing the wrong procedure, performing unnecessary surgery, or leaving medical equipment inside the patient.

Birth Injury

Among the most devastating types of medical malpractice, birth injury can occur in many forms, including inadequate prenatal care and negligence during childbirth. If the injuries were preventable, medical malpractice likely took place.

Medical Product Liability

Some patients suffer because a medical device used on them was poorly designed or faulty. These devices often injure patients before the defects are discovered. If the manufacturer knew of the defect, they are liable to the victims.

How Do I File a Medical Malpractice Claim?

Medical malpractice is not a typical personal injury lawsuit. Not every situation in which a patient is unhappy with their medical care will fall under one of these categories. To file a viable malpractice claim, a lawyer must establish four key elements: Duty of Care, Breach of Care, Causation, and Damages. If one of the four elements aren’t met, the patient does not have a viable medical malpractice claim. For example, a doctor cannot be successfully sued for a breach of the duty of care if no resulting injury occurs.

Duty of Care

There must be a physician-patient relationship to establish that the healthcare provider owed a duty of care to the patient. The nature of this relationship is based on one party (the patient) placing trust, confidence, and reliance in, and being influenced by another (the medical practitioner) who has a duty to act in the best interest of the patient.

Breach of Duty

When a physician does not do their duty at the necessary stage and delivers treatment lower than the medical standard of care, they could be found guilty of breaching their duty.


It isn’t enough to provide evidence that a medical professional was negligent. As a patient, you must also prove that the breach of duty caused you to suffer a compensable injury. Cases can’t be successful for “near misses” or “almost injured” even if the doctor was negligent.


If you have an arguable malpractice case, you will need to prove that your injuries resulted in considerable physical, emotional, or financial damages. A medical malpractice lawyer will need to establish the extent of the damage caused and how much money will sufficiently compensate you for the damages.

Steps Involved in a Medical Malpractice Lawsuit

  1. Legal Consultation – During your initial consultation with a malpractice lawyer, they will want to know a timeline of events and the steps you’ve taken so far. Since medical malpractice cases are complex, your lawyer will assess the merits of your case. Simply put, they will review the evidence to determine the likelihood of your claim being successful.
  2. Medical Evaluation – It’s likely that you will need to undergo a medical evaluation to assess the extent of any injuries you suffered as a result of treatment that fell below the standard of care. Your lawyer will also use a medical expert to testify for you based on the facts of the case, including a review of your medical records.
  3. Statement of Claim – Pursuing a medical malpractice lawsuit in Canada starts with filing a formal court document filed by the Plaintiff (the injured person) that includes:
    Names of the parties involved in the lawsuit
    Basic allegations or material facts about the incident
    Details about your injuries or losses
    The type of damages you are seeking compensation for
  4. Statement of Defence – Once the Defendant (the party being sued) is served with the Statement of Claim, they will file a court document to admit, deny, or plead insufficient knowledge about the Plaintiff’s allegations.
  5. Discovery Examination – This is a process that allows each party involved in the medical malpractice lawsuit to disclose evidence, testimony, and documents related to the case.
  6. Mediation – After discovery, a Plaintiff and Defendant may agree to the mediation process. This is a structured way for both sides to discuss and seek a resolution without a trial.
  7. Settlement or Litigation – Medical malpractice lawsuits can be timely and costly, which is why most are settled out of court. If the parties can’t reach a settlement, either through negotiations on their own or through mediation, the case will proceed to trial.

Can I Sue for Medical Malpractice and Medical Negligence?

The human body is extremely complicated, so medical professionals must have a reasonable amount of leeway within the accepted standards of care. After conducting thorough research, an experienced lawyer will advise you on the possibility of filing a medical malpractice lawsuit and the damages you can recover, including:

Pain and Suffering – Monetary compensation for both the physical pain and emotional distress you are suffering due to your injuries.

Lost Wages– Compensation for wages lost during your injury and future earning potential if you are unable to earn income comparable to what you made before you were injured.

Medical Expenses – Recovery of medical expenses, including medication, rehabilitation, medical bills, treatment methods, adaptive medical devices, and future medical costs.

Is There a Time Limit to File a Medical Malpractice Claim?

In Nova Scotia, the statute of limitations to file a medical malpractice case is two years from the date the malpractice was committed. However, not all cases of medical malpractice are immediately recognizable. The Supreme Court of Canada established what’s known as “discoverability principle.” This means that the limitation period will not start until the victim of medical malpractice or negligence becomes aware of their injuries. This is common in misdiagnosis cases where a patient may not know they were misdiagnoses until another doctor properly diagnoses their symptoms at a later date. The limitation period could also be delayed if the victim is a child or someone who lacks the capacity to make decisions (e.g., unconscious or in a coma).

If you or someone you know has been injured by a healthcare provider, you may be entitled to compensation. Our experienced team of medical malpractice lawyers will evaluate your case, review your medical records, and consult with a medical expert to ensure you get the justice you deserve. Book your free consultation with Valent Legal today.


Tell Us What Happened.
We work on a contingency fee basis, which means there are no fees until you get a settlement or you win a judgment in court. Visit how we work or contact us to learn more.
Call or Text for a FREE CASE REVIEW
+1 902 443 4488 +1 902 200 4001
Have questions?
Get the answers you need. It's FREE.
  • This field is for validation purposes and should be left unchanged.