Calgary Legal Guidance

Medical Malpractice

The topics in the Dial-A-Law series provide only general information on legal issues within the province of Alberta. This service is provided by Calgary Legal Guidance funded in part by the Alberta Law Foundation. The purpose is to make you aware of your legal rights and responsibilities. This is not legal advice. If you require legal advice, you should contact a lawyer.

This topic will outline your rights as a patient. Although the examples and discussion will refer mostly to doctors and patient, the same is generally true of dentists and patients.

When treating you, your doctor owes you a standard of care equal to or exceeding that of a normally competent doctor. Likewise a specialist may be held to a higher standard of care than a general practitioner and in some instances a city doctor may be held to a higher standard of care than a rural doctor. If your doctor violates this standard of care by doing something a normally competent doctor would not have done or omits to do something a normally competent doctor would have done, and you suffer injury as a result, you may be able to sue the doctor for malpractice.

Some of the types of malpractice discussed on this topic are:

1) treating a patient carelessly and as a result causing injury;

2) a failure to treat a patient when a patient has a right to be treated;

3) treating a patient without the patient’s informed consent;

4) disclosing a patient’s medical records without the patient’s consent.

Medical malpractice is an area of law which is not subject to statutes but is the result of judge made law through various court cases. As a result, it is a very complex and uncertain area of the law. If your complaint is that you have suffered injury as a result of lack of medical treatment, for example a misdiagnose of a serious problem, or because of careless medical treatment, you should consult a lawyer familiar with this area of law as soon as you learn of the problem. A lawsuit for medical malpractice or medical negligence must be started within one (1) year of the treatment causing the problem or, in some cases, within one (1) year of when you knew or should have known that the treatment caused the problem. If you have any doubt, consult a lawyer sooner rather than later. Depending on what specific complaint you have, it may be wise before beginning an action to try to solve the problem by other means.

You may first want to discuss the problem with the doctor herself or himself or with the administration of the hospital where the doctor works. You may also complain to the Alberta College of Physicians and Surgeons or the Alberta Dental Association for an investigation of your complaint. Complaints can also be made to these associations regarding behaviour on the part of your doctor or dentist whom you feel was unprofessional. If you want to complain about the health care facility that treated you, you may do so by contacting the regional health authority for that area.

First, if you suffer damage as a result of your doctor’s carelessness, the doctor may be negligent. To establish negligence in court the doctor’s action must have been below the standard of a normally competent doctor. This is established through the testimony of other doctors, who confirm that the doctor did or failed to do something according to the standard of a competent doctor. Negligence is not necessarily established if something goes wrong by a medical procedure, or if there are unexpected results.

If you suffer damages as a result of carelessness by your doctor’s staff both the staff member and the doctor may be responsible in law. If you are injured in hospital as a result of your doctor’s negligence, the hospital may not be responsible depending on whether the doctor is an employee of the hospital.

The second type of malpractice discussed is a doctor’s failure to treat you when you have a right to be treated. When you go to a doctor for examination, tests or treatment, there is a contract, usually just a spoken agreement, between you. The contract is that the doctor will provide you with medical services and you will pay for these services. In Alberta, you do not always pay the doctor directly because of our provincial health plan. You are, however, paying your doctor indirectly when you pay your health care bill.

The third type of malpractice is a doctor treating you without your informed consent. No person can touch you without your agreement, unless it is necessary to save your life and you are unable because of your condition to indicate if you consent. In law, there are two (2) types of consent, “express” and “implied”. Express consent means giving consent either verbally or in writing, for example, when you sign a consent form before surgery. Implied consent means that you show by your conduct that you consent to treatment. If you seek medical help for an illness you are implying that you consent to being treated for it.

In order for your consent to be informed consent, you must have enough information from the doctors to make an informed decision. You should be aware of the treatment, the probable effects, the nature of the treatment, the risks of the treatment and of not being treated. The risks you must be advised of are those that are more than remote possibilities or are special or unusual. Consenting to one particular treatment does not mean that you have consented to another. Giving consent to have your appendix removed does not mean you have given consent to have other organs removed while you are in surgery unless it is absolutely necessary to save your life or protect your immediate health. Likewise, a doctor is under a legal obligation to answer any and all questions relating to a procedure or treatment.

In order for consent to be valid, you may not be under the influence of drugs which would prevent your understanding of the consent. Valid consent, for example, usually cannot be obtained from a patient who has been sedated for pain. If, however, doctors are unable to get your consent to treatment because you are unconscious or delirious and you must be treated in order to save your life or prevent serious injury to you, they may treat you without your consent as long as they have no reason to believe you would refuse treatment.

When you are asked to sign a consent form, read it carefully before signing it. If in doubt, ask questions. You can change some of the terms of the consent form. If, for example, the form states that medical students will watch the operation, you can indicate you do not consent to this.

Finally, medical malpractice includes careless or improper handling of your medical record by your doctor. You have a right to a confidential and carefully written record. Your medical records give your treatment history and doctors reading the chart have a duty in law to read the whole record. If, for example, a doctor prescribed a drug for you and a record of your allergy to that drug was contained in your medical records, he or she may be guilty of malpractice and responsible for the adverse side effects which you suffer. Similarly, malpractice may occur if your doctor makes a careless error in recording medications to be given to you and you suffer damages.

In summary, you may be able to sue for medical malpractice if a doctor treats you or fails to treat you in a manner that a normally competent doctor would. Medical malpractice cases are very complex and technical and you will need a lawyer to advise you of the strength of your case and to represent you in court should you decide to sue.

Dial‑A‑Law is a Calgary Legal Guidance public service project funded in part by the Alberta Law Foundation.

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