Legal Ease, April 24

Incompetent treatment by medical practitioners is quite rare.

That’s why, when it does happen, incompetent medical care is a big news story. It’s a bit like the example of how safe airplanes are—a plane crash is so unusual that it gets front page coverage.

All that said, sometimes errors are made and incompetent medical care is given. What does the law say about compensation for such mistakes?

Put otherwise: when can you sue for damages for medical malpractice?

Put simply, all medical practitioners must act in accordance with the reasonable standard of the profession and damages will follow if that standard is not met and the failure to meet the standard leads to damages.

All medical practitioners must live up to the standard of care of a reasonably prudent practitioner. That standard is not one of perfection, but rather the standard of the profession.

What do other doctors or nurse practitioners or medical professionals do? Even the best doctor will make a mistake—nothing in this life is perfect. A mistake does not necessarily mean malpractice has occurred.

The way the standard of care is proven in court is to have other medical professionals explain what would normally be done. Often doctors disagree as to what appropriate care should be and that can lead to lengthy trials with different doctors taking different views.

Let us suppose, however, the medical practitioner failed to live up to the standard of the reasonably prudent practitioner. Does that mean a lawsuit against the practitioner will certainly succeed?

No. For a claim to succeed you have to show that there was a failure to meet the required standard of care and that failure led to damages.

A nurse practitioner may make a serious mistake, but cause no harm.

Suppose a cold is misdiagnosed as the flu and the patient is told to stay home and rest. The patient recovers anyway—no harm is done.

I had a more tragic example in a case I did many years ago. A young man came to an emergency room with a terrible headache. The doctor totally misdiagnosed the young man and sent him home telling him to take some Tylenol.

The young man died shortly thereafter. The doctor had made a serious mistake and had fallen well below the standard of the reasonably prudent practitioner, but sadly there was no treatment that could have saved the young man.

A proper diagnosis would not have done the young man any good—he would have died anyway. As a result, the error was not one to lead to a valid claim.

When someone dies or doesn’t fully recover from an illness or injury, the temptation to blame the medical practitioners can be very strong. That temptation is natural, but often misguided.

James Morton is a lawyer practicing in Nunavut with offices in Iqaluit. The comments here are intended as general legal information and not as specific legal advice.