Did you suffer an injury while receiving medical treatment? Poor medical outcomes do not necessarily mean a health specialist was negligent. Many medical procedures carry risks that may materialize even when a health specialist met the standard of care. However, if a health practitioner failed to meet the standard of care and as a result caused your injury, you may have a medical malpractice case against the health practitioner.

The lawyers at Hillier & Hillier can assist you in determining whether you have a medical malpractice case. Call Hillier & Hillier at 905 453 8636 or click here to submit an online request for a FREE CONSULTATION.

What Is a Medical Malpractice Case?

A medical malpractice claim exists where a health practitioner fell below the standard of care while providing treatment and as a result caused you injury and damages.

You must prove the following elements in a medical malpractice case:

Duty of Care: you must prove that the health practitioner owed you a duty of care. This is generally uncontroversial as practitioners typically owe their patient a duty to provide reasonable care.

Breach of the Standard of Care (aka negligence): you must prove that the health specialist failed to meet the level of skill, care, and judgment that a reasonably competent health professional of the same discipline would provide in the same circumstances. This is often a heavily contested issue in malpractice lawsuits. It is not enough that you sustained an injury while receiving medical care. Many individuals incorrectly believe they have a malpractice case because they sustained an injury during treatment. You must also prove that the health specialist did something negligent (below the standard of care) which caused the injury. 

For example, risk of an infection is often a complication of surgery that may arise. Just because you develop sepsis or some other infection during a surgery will not be sufficient to allege that malpractice occurred. If, however, the surgeon failed to follow a sterile technique (a technique used to prevent infection) during surgery which caused your infection, this may form the basis of a malpractice claim.

Causation: you must prove that the health practitioner’s breach of the standard of care caused your specific injury. It is not sufficient to establish that the physician was negligent, and that you sustained an injury. A negligent physician will not be liable for injuries that would have occurred even if the negligent act did not occur. You must establish a causal link between the negligent act and your injury. 

For example, if an emergency physician failed to order routine diagnostic imaging of your foot (negligence) and as a result failed to discover a foot infection which would have required an amputation regardless of whether it was promptly discovered, the emergency physician will not be liable. However, the emergency physician will be liable for the amputation if you can prove that a prompt diagnosis would have prevented your foot from being amputated.

Damages: you must prove damages. You may do this by calling medical experts to discuss the severity of the injuries you sustained, the impact of these on your ability to work and the level of care you require.  You will then retain an accountant to calculate the resulting loss of income and cost of required care. Related to the issue of causation, you can only claim damages that were caused by the negligent act. Many individuals who meet a health practitioner are doing so because of some pre-existing health issue. You cannot claim damages for health issues that pre-existed the malpractice, but only for damages caused by the malpractice. 

For example, if a doctor failed to promptly diagnose you with cancer and due to the delay you developed additional complications, you can sue the doctor for the additional complications occasioned by the delayed diagnosis but not the pre-existing cancer condition itself.

Remoteness: the type of harm or injury has to be a foreseeable consequence of the defendant’s breach of the standard of care. A health practitioner will not be responsible for an extremely bizarre and unforeseen chain of events that leads to an injury.

What Is Informed Consent?

You may also be able to bring a claim alleging that the defendant health specialist failed to obtain your informed consent to certain treatment. 

This occurs where:

• you sustained an injury because of undergoing a treatment;

• you were not advised of the material risks of that injury associated with the treatment; and

• a reasonable person in your circumstances would not have consented to that treatment had they been adequately advised of the risk of injury. For example, a reasonable person would likely consent to risking certain injuries to undergo a lifesaving surgery, but would be unlikely to consent to risking severe injury or death to undergo a cosmetic surgery.

If you can prove the above criteria, then the defendant specialist will be liable for the injury you sustained during the treatment and the damages you incurred because of that injury.

How Do You Prove Medical Malpractice Claims in Ontario?

You will first need to retain a lawyer who will gather all relevant medical records including but not limited to contemporaneous treatment records, diagnostic imaging, test results, operative reports, and nursing notes.

Your lawyer will then retain medical experts to support the elements of a malpractice claim listed above (duty of care, breach of the standard of care, causation, damages, and remoteness).

What Type of Expert Should I Use?

The type of expert you must use depends on the facts of your case. You will need different experts to opine on each element in a medical malpractice claim. This often results in multiple experts being retained for your case.

Standard of Care Experts

To establish that the defendant health practitioner breached the standard of care, you should call an expert of the same specialty to describe the applicable standard of care and then discuss whether the defendant fell below that standard.

For example, if you are commencing a claim against a neurologist, you should retain a neurologist to comment on the standard of care.

Similarly, if you are commencing a claim against an emergency room physician, you will need to retain an emergency room physician to comment on the standard of care. You should not retain a specialist to comment on the standard of care of a non-specialist like a general practitioner or emergency physician.

Causation Experts

To establish that the defendant caused your injury, you should retain an expert who specializes in treating the condition that led to your injury. This expert must be able to link the defendant’s breach of the standard of care to your injury.

For example, if you are commencing a claim against an emergency room physician for a failure to promptly diagnose an infection in your left foot which resulted in the foot being amputated, you will likely call an infectious disease expert to discuss how the amputation could have been avoided had the infection been promptly diagnosed and treated with antibiotics and/or wound care.

In another example, if you are commencing a claim against a general surgeon who failed to promptly diagnose cancer, then you should call an oncologist to determine whether an earlier diagnosis would have led to a better result.

Causation is often a hard-fought battle between the plaintiff’s and defendant’s experts and is determine by complex scientific and medical evidence.

Damages Experts

To support your claim for damages, you will need to retain the following experts:

• medical specialist to comment on the severity of your injuries, whether these require future treatment, and whether these prevent you from engaging in your employment and housekeeping activities;

• life care planner (usually a registered nurse or occupational therapist) to estimate the cost of care recommended by a medical specialist to treat your injury; and

• an accountant to calculate the cost of care recommended by the medical specialist and to calculate any loss of income.

You may need additional experts like a vocational expert who can comment on your employment prospects pre- and post-injury depending on the facts of your case.

How Important Is Expert Evidence?

Expert evidence is essential to successfully bringing a medical malpractice claim. Without it, you will not be able to establish all elements of a malpractice claim, and your claim will fail. The defendant will also retain responding experts to offer competing opinions on the issues of negligence and causation.

As such, it is important to retain top experts in the medical field to support your claim and ensure your expert has all relevant information to comment on the above issues.

What Are Some Examples of Medical Malpractice?

Medical malpractice cases can technically arise in any doctor-patient relationship where treatment is provided. Below are some examples of medical malpractice:

• delayed diagnosis arising from a failure to conduct adequate investigations such as ordering proper tests, diagnostic imaging, or initiating a referral to a specialist

• failure to properly interpret test results

• surgical error, although these are very difficult cases as sometimes a negligent surgical error is difficult to distinguish from the occurrence of a non-negligent common risk of surgery

• medication error (e.g., an excessive dosage or harmful interaction with other medications)

• failure to have certain policies in place at a hospital

• birth injuries

• misdiagnosis

• failure to advise of material risks prior to performing a procedure (informed consent)

The above is not an exhaustive list. As well, an injury sustained in one of the above scenarios does not necessarily establish malpractice but may warrant investigation.

What Types of Compensation Can I Claim?

You can claim the following types of compensation:

• General damages for pain and suffering

• Loss of income

• Cost of medical care

• Cost of housekeeping and home maintenance assistance

The above categories are referred to as ‘heads of damages.’ In addition to these, you may also claim out of pocket expenses incurred because of your injury.

If your injuries are significant, your family members may also claim for a loss of care, companionship, and guidance, as well as any financial losses they incurred due to your injuries. Learn more about the types of compensation available in a personal injury lawsuit.

How Long Do I Have to Sue for Medical Malpractice in Ontario?

You have two years from the date you discovered your claim to commence a lawsuit.

Discovery of your claim occurs when you have first learned of the facts giving rise to the defendant’s negligence, which caused your loss.

Discovery of your claim may also occur on the day a reasonable person with your abilities and in your specific circumstances should have known about the claim through basic diligence.

The date you discovered your claim is not necessarily the date the negligent act occurred. It may take many months after the negligent act to discover a medical malpractice claim.

For example, you may not learn of a physician’s negligence until reviewing medical records. Alternatively, your injuries may not become apparent until months after the negligent act. As well, most individuals lack medical training and may not understand that there was possible negligence until they meet with a lawyer and obtain an opinion.

Nevertheless, where you suspect you have been injured because of medical malpractice, you should promptly meet with a lawyer to investigate.

Although you have two years from the date you discovered your claim to commence a lawsuit, it is best to commence a claim within two years of the date of the negligent act when possible.

What Happens During the Initial Investigation?

The initial investigation involves gathering relevant medical records and obtaining preliminary opinions from experts confirming: (i) a breach of the standard of care; and (ii) that the breach caused your injury. If your experts do not provide supportive preliminary opinions on both issues, then you will not be able to successfully proceed with a lawsuit against the health specialist.

If, however, both experts provide supportive opinions on both issues, then your lawyer will likely recommend proceeding to litigation, which involves the following process.

What Is Involved in the Process?

Retain Counsel

⬇️

Investigation

⬇️

Pleadings (file statement of claim)

⬇️

Documentary Discovery

⬇️

Examinations for Discovery

⬇️

Obtain Expert Reports Incorporating All Evidence

⬇️

Mediation?

⬇️

Pre-Trial

⬇️

Trial

It is important to note that most malpractice claims are unlike other types of personal injury lawsuits. They are more complex and vigorously defended.

If you think you have a medical malpractice claim, call Hillier & Hillier for a free consultation or submit an online request for a FREE CONSULTATION.

How Long Will My Malpractice Case Take?

Malpractice cases do not settle quickly. In fact, they typically do not settle until after expert reports discussing liability and damages have been exchanged. This is often well after discovery examinations and shortly before pre-trial. However, even after the exchange of expert reports, the defendant specialist may still choose not to make a settlement offer and instead proceed to trial to contest liability.

Cases that do not settle typically take many years from the initial investigation to proceed to trial. It may also take several years from the initial investigation to settle your claim.  Note that the length of time a case may take is dependent on the facts and complexity of the specific case.

The Complexity and Cost

Since medical malpractice claims require multiple experts to advance your case, the complexity and cost of pursuing these cases are significant.

Each expert will be required to produce a report outlining their opinion with respect to the above issues. The cost to prepare these reports easily ranges from $7,500-$10,000 per expert. It is not uncommon to spend $70,000-$100,000 for expert reports and disbursements, and sometimes much more, on a single case. Obtaining preliminary verbal opinions during the investigative stage will be cheaper, but still expensive for most individuals.

How Much Does It Cost to Hire a Lawyer?

At Hillier & Hillier, we do not charge an upfront fee for our legal services. We operate on a contingency basis and charge our fee as a percentage of the final recovery up to a maximum of 33%.

However, we often require clients to pay for their own preliminary verbal expert opinions on the issue of a breach of the standard of care and causation, which typically costs $5,000 - $10,000 total. You may not recover these amounts if the preliminary verbal opinions do not support your case. If your case is successful, you will recover these amounts as part of the overall settlement or award following trial.

Frequently Asked Questions About Medical Malpractice

Q. How do I know if I have a medical malpractice case?

A. You will not know whether you have a medical malpractice case until you obtain expert evidence from medical experts confirming there was a breach of the standard of care that caused your damages. Even then, the defendant health specialist may obtain responding expert reports disagreeing with the opinions of your experts. The strength of your case will then depend upon the persuasiveness of your experts versus the persuasiveness of the defendant’s experts.

Q. Is a bad medical result automatically malpractice?

A. No. Poor results can and do occur as a result of properly administered treatment. Again, you must identify a breach of the standard of care (negligence) which caused your injury to advance a malpractice claim.

In some cases where treatment is properly performed, you may still be able to claim the health practitioner failed to obtain your informed consent to the treatment.

Q. Can I sue a doctor for misdiagnosis?

A. Yes, although again you must also prove that the doctor breached the standard of care to arrive at that diagnosis. A collection of symptoms can give rise to many diagnoses, all of which may validly represent your symptoms. However, if a doctor fails to ask certain relevant questions or complete standard of care tests, and the results of these would have changed the diagnosis, then you may have a valid claim assuming you can prove damages.

Q. Can I sue a hospital in Ontario?

A. Yes you can if your injuries were caused by the negligence of the hospital or its staff. This raises an important distinction between doctors and hospital staff. In most cases, doctors are not employees of a hospital, but rather independent contractors with privileges to practice at a hospital. By contrast, nurses are employees of a hospital. If your damages were caused by the negligence of a doctor, you should sue that doctor. If your damages were caused by the negligence of a nurse, you should name the hospital and nurse as defendants. The hospital is vicariously liable for the actions of its employees committed during their employment. You may also sue a hospital where it fails to have standard of care policies in place to address medical events so long as you can prove the failure to implement this policy caused or contributed to your injuries.

Q. Can I sue for a delayed diagnosis?

A. Yes so long as you can prove that the diagnosis was delayed because of a negligent act, and that the delayed diagnosis caused your injury. Failure to promptly diagnose your injury is not, on its own, sufficient to establish a lawsuit. There may be many non-negligent reasons why a doctor may not promptly discover your diagnosis. A cluster of symptoms may give rise to many different types of diagnoses, any of which could validly be applied to your condition. However, if the failure to promptly diagnose your medical condition was caused by a negligent act, then this may give rise to a malpractice claim assuming the delay caused your injury.

Q. Can I sue if my cancer diagnosis was delayed?

A. Yes assuming you can prove the delay was occasioned by a breach of the standard of care. However, it is important to note that you can only sue for the medical complications or injuries caused by the delay. You cannot claim damages arising from the pre-existing cancer condition itself. If, however, during the period of delay your cancer spreads to other organs and requires extra surgery for the removal of additional organs and leads to additional complications, then you will be able to advance a claim for the extra surgery and complications.

Delayed diagnosis cases, especially in the cancer setting, can be challenging because it is difficult to isolate damages caused by the delay. You will require expert evidence to precisely state what your condition would have been had the delay not occurred versus what your condition is because of the delay. This is not always possible.

Q. What if another doctor tells me my first doctor made a mistake?

A. If another doctor tells you your first doctor made a mistake, this may alert you to the possibility of a malpractice claim that should be investigated. But this on its own does not mean you have a malpractice case. Again, you will require expert evidence to establish the elements of a medical malpractice claim.

Unfortunately, doctors do not specifically write in their notes that the previous doctor made a mistake. Further, because they treat so many patients, they often have no recollection of telling you that the first doctor made a mistake. In the rare event a doctor notes in their records that the first doctor made a mistake, you will be able to use that note to support the opinion of your expert, which may make your expert more persuasive to a judge or jury than the defendant’s expert.

Q. Do I need an expert witness?

A. Yes, you need multiple experts. Only expert witnesses can provide the medical opinions necessary to establish the elements of a malpractice claim. If you fail to obtain expert witnesses, your claim will fail.

Q. How much is a medical malpractice case worth?

A. This depends on the facts of each case. The more severe the injury and the impact of the injury on your life, the more your case is worth. Typically, high-value cases involve severely injured individuals who lose their job and require significant amounts of medical care and attendant care. These cases could easily result in an award of millions of dollars.

Note that awards for general damages for pain and suffering in Ontario are limited to approximately $461,000 as of 2026 for the most severe injuries. This is unlike pain and suffering awards in the United States which could easily reach millions of dollars. Again, in Ontario, high-value medical malpractice cases often involve large awards for loss of income and medical care.

Q. How long does a malpractice lawsuit take?

A. Each case is different, but these often take several years to finish by way of settlement or longer if proceeding to trial. These cases require significant up-front investigation as well as significant investigation after discovery examinations to obtain expert reports.

Q. What medical records do I need?

A. You will certainly need the medical records documenting the alleged negligent treatment. However, you will also need most, if not all, of your medical records from 3-5 years pre-dating the negligent act to the present and on an ongoing basis. These records are necessary to prove your claim for damages.

Q. Can I sue if I signed a consent form?

A. It depends on the facts of each case. Signing a consent form that clearly outlines all material risks of a proposed treatment will pose challenges to a claim against the doctor for failing to obtain informed consent. This document will show that you were aware of the material risks of the treatment and decided to proceed.

However, you may still advance a claim against the doctor in negligence for breaching the standard of care and causing damages even if you signed a consent form. This is a separate type of claim with a distinct legal test.

As well, in certain cases, like routine treatments over a lengthy period (e.g., chiropractic treatment), a consent form may need to be updated especially if the patient’s condition changes over time and new risks emerge. In this case, signing an initial consent form is unlikely to be an obstacle to an informed consent claim arising from a treatment that occurred years later.

Why Choose Hillier & Hillier for a Medical Malpractice Claim?

Ava Hillier and Eddie Wiley have significant experience representing individuals in malpractice claims and understand the importance of forensically reviewing relevant records and obtaining expert opinions. They have worked with a variety of medical experts and successfully represented clients in many types of malpractice claims ranging from chiropractic malpractice to delayed diagnosis claims resulting in severe injury or death. Malpractice claims are simply not the same as most personal injury claims and you should retain a lawyer with actual experience in this field if you wish to proceed with a malpractice claim.

If you suspect you have been injured because of a health practitioner’s negligence, call Hillier & Hillier at 905 453 8636, or click here to submit an online request for a FREE CONSULTATION.