More than a medical mistake is needed before plaintiffs can mount a medical malpractice case, Toronto litigator Richard Shekter tells AdvocateDaily.com.
Shekter, a partner with Shekter Dychtenberg LLP, says it’s a common misconception among non-lawyers that an obvious medical error will automatically result in a claim against the professional who was responsible.
“It won’t actually, because in order to establish a claim of negligence, you need a mistake and then you need damages that arise as a result of the mistake.
“Without both, you don’t have a case,” says Shekter.
Many claims fall short because they can’t prove both key elements, he explains. For example, a number of former patients have launched claims against hospitals after contracting necrotizing fasciitis, colloquially known as flesh-eating disease, during their stay.
In these cases, Shekter says the damage is clear since the disease can easily result in the deaths of victims. However, plaintiffs have struggled to show that there was a breach of the standard of care given by the attending professionals.
“Doctors have been able to successfully defend themselves by showing that they did nothing wrong and that even an earlier intervention with specific antibiotics would not have made any difference to the end result,” he says.
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