Medical Malpractice: Info for Nova Scotians

Suing a medical professional is often much more difficult and expensive than other types of personal injury claims. Here are some reasons why:

High legal and medical standards

You must prove three specific things to win.

1. The provider’s care fell below the level of a reasonably competent professional. 
2. You suffered a real injury. 
3. The poor care likely caused that injury. 

You should have expert medical evidence for each of these points. Your own testimony is usually not enough.

Complex medical facts

Many patients already have serious health conditions. It is often very hard to prove whether the harm resulted from the pre-existing illness or from a mistake.

Time and cost

These cases usually involve years of litigation, large volumes of records, and expensive experts. For these reasons, lawyers are selective about which cases they take. 

Well defended

Most doctors in Nova Scotia are defended by the Canadian Medical Protective Association (CMPA). This group uses specialized lawyers and experts to strongly defend claims. 

High stakes on both sides

Cases can involve life-changing injuries, professional reputations, and large amounts of money. This leads to intense scrutiny of every detail.

Winning a case requires you to prove that a specific medical error directly resulted in a serious injury or loss. You must prove these three things:

1. You must show actual, provable harm 

A mistake is not enough for a lawsuit. You must prove the mistake caused provable harm. Courts do not give money for a "near miss" or a scare. You cannot sue for a mistake that almost caused an injury but did not. If your health outcome would be the same even with proper care, you usually do not have a claim.

Harm can include:

• A new injury, such as nerve damage during surgery.
• Your original condition worsening.
• A longer or more difficult recovery.
• The need for extra surgery or treatment.
• Ongoing limits that affect work or daily life.

Serious psychological injury, like diagnosed depression or PTSD, can also count. General upset or anger is usually not enough. You must provide evidence of the harm, like medical reports and income records.

2. You must show a breach of the standard of care 

In medicine, things can go wrong even when everyone does their job perfectly. A bad medical outcome does not automatically mean you can sue. To win, you must prove there was a breach of the standard of care.

This means the professional’s conduct was below the standard of a reasonably competent person in that field. The law does not require perfection, but it expects reasonable skill. Doctors can make "foreseeable" mistakes. They are only liable for exceptional mistakes that fall outside the standard of care.

3. You must show causation 

Causation is the link between the mistake and the harm. You must prove you were hurt because of that mistake. It is not enough to show that a mistake happened around the same time you got worse. 

Courts use the but for test. This means your injury likely would not have happened "but for" the negligent care. If you were already ill, you must show the provider made you worse than the illness would have on its own.

If you had a pre-existing condition, you must prove the doctor's actions made you worse. You must show your health did not just decline naturally because of your original illness. Because the human body is complex, you do not need "scientific certainty." However, a medical expert must testify that the mistake was the most likely cause of your harm.

You cannot win a medical malpractice case just by telling your story. Medical malpractice claims rely on highly technical evidence and the opinions of other medical professionals.

Expert evidence is mandatory

In almost all cases, you need independent medical experts to:

• Explain what the standard of care required. 
• Say whether it was breached.
• Give an opinion on whether the breach caused your injury. 

These experts usually practice in the same specialty as the person you are suing, or a closely related specialty. 

You may need more than one expert. For example, you might need one expert to explain the doctor's mistake. You might need a different expert to explain how that mistake affected your long-term health.

Expert costs are high 

Experts often charge thousands of dollars to review records and testify. You may need multiple experts for different parts of the claim. Defence lawyers will also have their own expert reports. 

If a lawyer works on a contingency fee, they may pay these costs upfront. However, they will recover them from any settlement or judgment you receive. The cost of hiring these experts is called a disbursement. 

Massive document review and investigation 

Before a case is filed, your legal team may spend months or years investigating. They must collect hospital charts, clinic notes, and imaging reports. They review these in detail. They often consult experts informally to see if the case is even possible to win.

These lawsuits are a long-term commitment that can be both financially and emotionally taxing.

Cases take many years 

Medical malpractice lawsuits often take several years. This is due to detailed investigations and a strong defence. The process involves many formal steps:

1. Pleadings: Formal court documents.
2. Discovery: Both sides answer questions under oath.
3. Exchange of reports: Sharing expert opinions.
4. Pre-trial motions: Legal arguments before the trial.
5. Trial: A possible lengthy hearing in court.

Lawyers are selective 

Lawyers only take these cases if the evidence of a mistake is strong and the harm is serious. There must be a realistic chance of recovering enough money to justify the high cost and time. A "significant recovery" usually involves:

• Ongoing pain and suffering.
• Lost income or inability to work.
• Future care costs for treatment or assistance.

If the harm is minor or short-lived, the cost of experts might be more than the potential compensation. 

Emotional toll on patients and families

The length and adversarial nature of these cases can be emotionally draining. The process can take a heavy toll, especially if you are still dealing with health issues.

There are strict legal deadlines in Nova Scotia that determine how long you have to start a lawsuit.

Basic two-year period 

In Nova Scotia, you generally have two years to start a lawsuit. This time starts when you knew (or should have known) that you were injured and that substandard care may have caused it.

Ultimate 15-year deadline 

There is an ultimate deadline of 15 years from the date of the medical act or omission. You cannot bring a claim after this, even if you found the problem later.

Special Situations

There are different rules for children (minors) and people who lack the mental capacity to manage their affairs. 

Missing a deadline can end your case forever. It is important to get legal advice as early as possible.

If you want money for your harm, you usually need a civil lawsuit or a settlement. If you are looking for an apology or a change in hospital policy rather than money, there are other options.

Professional Regulators 

Regulatory complaints focus on safety, conduct and competence. You can file a complaint with the College of Physicians and Surgeons of Nova Scotia or other regulators, depending on which health care professional is involved. These bodies can investigate and discipline professionals. They cannot award you money for your injuries.

Hospital Reviews 

Many hospitals have patient relations departments. They can review what happened and provide explanations. They may help make system changes to prevent future mistakes. While they cannot pay damages, they can provide answers and accountability without a court case.

Medical malpractice can happen in many different ways. Some of the most common patterns in Nova Scotia include:

• Misdiagnosis or delayed diagnosis: This happens if a doctor fails to identify a serious illness, like cancer or a heart condition, in time. For example, a doctor might misread a lab result or ignore warning signs, causing the patient to miss out on early treatment.
• Surgical errors: These are mistakes made during an operation. Examples include operating on the wrong body part, leaving a medical tool inside the patient, or damaging healthy organs.
• Birth injuries: These involve harm to a baby or mother during pregnancy or delivery. Common examples include brain damage from a lack of oxygen or nerve damage caused by improper use of tools during birth.

Every case depends on its specific facts. Before a lawyer can move forward, they generally need at least one medical expert to review the records and provide a supportive opinion.

Even if your surgery or procedure was done perfectly, you may have a claim if you were not properly informed before agreeing to it. 

Before getting your consent, a healthcare provider must explain in plain language:

• What the procedure is and why they recommend it.
• The material risks (serious or likely complications).
• Reasonable alternatives, including the choice to do nothing.
• Any special risks that are important specifically to you because of your job, health, or personal lifestyle.

A claim may arise if an important risk was not explained and that specific risk actually happened. To win, you must also prove that you likely would have refused the treatment or chosen a different option if you had known about that risk.

A contingency fee means the lawyer only gets paid if you win your case or reach a settlement. Their fee is usually a percentage of the money you receive. Many medical malpractice lawyers in Nova Scotia use this system, but they are very selective.

Because these cases are complex and take many years, lawyers only take on claims with a strong chance of success. Before agreeing to act, a lawyer will usually:

1. Review your story and all your medical records.
2. Ask an expert for an informal opinion to see if a serious mistake was made.
3. Check if the mistake caused real, lasting harm.

If the case is not strong enough or the potential recovery is too small to cover the costs, a lawyer may decline the case.

In most successful cases, the money does not come directly from the healthcare provider’s personal bank account. It usually comes from insurance or a protection fund:

• Doctors and the CMPA: Most doctors in Nova Scotia belong to the Canadian Medical Protective Association (CMPA). The CMPA pays for the doctor's legal defense and pays out any settlements or judgments.
• Nurses and other professionals: Many nurses have professional liability protection through their nursing association. They may also be covered by insurance held by their employer, like a hospital or clinic.
• Hospitals and Clinics: These facilities have their own liability insurance. If a hospital is sued because of a staff member's error, the hospital's insurer may pay its portion of the claim.

As long as the professional was acting in the course of their employment and had coverage, these organizations handle the financial payment.

No. In Nova Scotia, you cannot sue for a "near miss." Even if a doctor made a very obvious or careless mistake, you do not have a legal claim unless that mistake caused you actual, provable harm. The legal system is designed to compensate you for losses, not to punish a provider for a mistake that didn't result in an injury.