Medical malpractice in Ontario: how to sue a doctor or hospital

When medical care goes wrong, people want two things: answers, and a way to deal with the harm it has caused. In Ontario those come through different doors. A complaint to the College of Physicians and Surgeons of Ontario (CPSO) looks at the doctor's conduct. A civil lawsuit is the route to compensation. Malpractice lawsuits are some of the most demanding cases in our courts: they turn on medical evidence, they are defended by organizations with deep experience of these claims, and they have strict time limits. This guide explains what you must prove, why expert reports are essential, the deadlines, who is on the other side, how a College complaint differs from a lawsuit, and how to get your medical records.

What you must prove

A medical malpractice claim is, in law, a claim in negligence (and sometimes in contract or for lack of informed consent). You must prove each of these points on a balance of probabilities:

1. A duty of care. This is rarely in dispute: doctors, nurses and hospitals owe a duty of care to the patients they treat.
2. A breach of the standard of care. The question is not whether the result was bad, or whether another doctor would have chosen differently. It is whether the care fell below what a reasonable and prudent practitioner in the same field, with the same training, would have provided in the same circumstances. A bad outcome on its own is not malpractice, and a judgment call that looks wrong in hindsight may still have been reasonable at the time.
3. Causation. The breach must have caused your injury.
4. Damages. You must show the losses that flowed from the injury: pain and suffering, lost income, the cost of future care and so on.

Causation is often the hardest part

Patients usually come to a doctor already ill or injured, so the defence will often argue that the harm would have happened anyway. The test is set out in Clements v. Clements, 2012 SCC 32: as a general rule, you must show that you would not have suffered the loss "but for" the defendant's negligence. The Supreme Court of Canada said the trial judge should take a robust and pragmatic approach to this question, and that scientific proof of causation is not required. A different "material contribution to risk" approach applies only in exceptional cases, typically where several defendants were each negligent and the plaintiff cannot show which one caused the harm.

Delayed diagnosis claims show how this works. Suppose a lump is missed and cancer is diagnosed a year later. It is not enough to show the delay was negligent. Your lawyer needs medical evidence that earlier diagnosis would, more likely than not, have changed the treatment or the outcome.

Informed consent

Some claims are about what you were told, not how the procedure was done. In Ontario, consent to treatment must be informed: before consenting, you must have received the information that a reasonable person in the same circumstances would require to make a decision, including the nature of the treatment, its expected benefits, its material risks and side effects, alternative courses of action, and the likely consequences of not having the treatment (Health Care Consent Act, 1996, s. 11(2) and (3)). A claim based on lack of informed consent also requires proof that the missing information would have changed the decision.

Why you need expert medical opinions

A judge cannot decide whether a surgeon or emergency physician met the standard of care without evidence from someone qualified in that field. In practice, a malpractice claim needs at least two kinds of expert opinion: one on the standard of care, from a doctor in the same area of practice as the defendant, and one on causation. Many cases also need opinions on prognosis, future care costs and lost income.

The Rules of Civil Procedure set out strict requirements for these reports:

• A party who intends to call an expert at trial must serve a signed report at least 90 days before the pre-trial conference. A responding report is due at least 60 days before it (r. 53.03(1) and (2)).
• The report must state the expert's qualifications, the instructions they were given, the issues addressed, their opinion and reasons, the factual assumptions and research behind it, and the documents relied on, and it must include a signed acknowledgment of expert's duty, Form 53 (r. 53.03(2.1)).
• Every expert's duty is to give opinion evidence that is fair, objective and non-partisan, and only on matters within their expertise. That duty to the court prevails over any obligation to the party who hired them (r. 4.1.01).
• An expert generally cannot testify about an issue not set out in a served report or supplementary report, except with the trial judge's leave (r. 53.03(3)).

Expert opinions are needed long before trial. Your lawyer will usually obtain at least a preliminary opinion before deciding whether a case is worth starting, because a claim with no supportive opinion on the standard of care or causation is unlikely to succeed and can expose you to a costs award.

The time limits: two years and 15 years

Ontario has two limitation periods that matter in malpractice cases.

The basic two-year period

You must generally start a court proceeding within two years of the day the claim was discovered (Limitations Act, 2002, s. 4). A claim is discovered when you knew, or a reasonable person in your circumstances ought to have known, that you were injured, that the injury was caused or contributed to by an act or omission, that it was the act or omission of the person you are suing, and that a proceeding would be an appropriate way to remedy it (s. 5(1)). You are presumed to have known these things on the day the act or omission happened, unless you prove otherwise (s. 5(2)).

Discoverability matters in medical cases because harm is often not obvious at first. A patient may not learn for months that a test result was missed, or that a complication was caused by an error rather than bad luck. But the two years do not wait until you have every answer. Once you know enough to suspect that care caused your injury, time is usually running.

The 15-year ultimate period

No proceeding may be started more than 15 years after the day the act or omission took place, whatever the discovery date (s. 15(2)). That period does not run while the person is incapable and has no litigation guardian, is a minor with no litigation guardian, or while the defendant wilfully conceals the injury or its cause or wilfully misleads the person about whether a proceeding is appropriate (s. 15(4)). The person with the claim must prove that one of those exceptions applies (s. 15(5)).

Children and people who lack capacity

The two-year period does not run while the person is a minor and not represented by a litigation guardian (s. 6), or while they are incapable of starting a proceeding because of their physical, mental or psychological condition and have no litigation guardian (s. 7(1)). Adults are presumed capable unless the contrary is proved (s. 7(2)). Parents of an injured child should not assume they can wait until the child turns 18, because family members' own claims have their own deadlines.

Family members' claims

When a person is injured or killed by negligence, their spouse, children, grandchildren, parents, grandparents, brothers and sisters can recover their own financial losses from the person responsible (Family Law Act, s. 61(1)). These claims are usually brought in the same lawsuit.

Who is on the other side: CMPA and HIROC

You sue the doctor, nurse, hospital or clinic, but you will deal mostly with the organizations that defend them.

• The Canadian Medical Protective Association (CMPA) describes itself as a mutual defence organization for Canadian physicians, not an insurance company. It provides legal help to its physician members and, where care was negligent, compensates patients on their behalf.
• The Healthcare Insurance Reciprocal of Canada (HIROC) is a not-for-profit reciprocal insurer whose subscribers are healthcare organizations across Canada. It insures hospitals and other healthcare organizations and supports them through claims made against them.

The difference matters. When care was given in a hospital, the doctor and the hospital may have separate lawyers and may take different positions about who was responsible. Your lawyer needs to identify every potential defendant early, because once a limitation period has expired against a person, the claim cannot be pursued by adding them to an existing lawsuit (Limitations Act, 2002, s. 21(1)).

These defence organizations have experience and resources. That is a reason to prepare carefully from the start, not a reason to give up on a sound claim.

A CPSO complaint or a lawsuit?

A complaint to the CPSO and a civil lawsuit do different jobs.

One rule surprises many people: records, reports, statements, orders and decisions from College proceedings are not admissible in a civil lawsuit (Regulated Health Professions Act, 1991, s. 36(3)). A College finding against a doctor will not prove your court case for you, and a decision to take no action does not end it. You can do both, but a complaint does not stop the limitation clock, and what you say in a complaint should be accurate and consistent with what you may later say in court. Talk to a lawyer before filing if a lawsuit is possible.

The CPSO deals with physicians. Concerns about nurses, midwives, dentists and other regulated professionals go to their own colleges. For hospital care, the hospital's patient relations office is another place to raise concerns.

Getting your medical records

Your records are the foundation of any claim, and you have a legal right to them. You can ask any health information custodian, such as a doctor, clinic or hospital, for access to records of your personal health information (Personal Health Information Protection Act, 2004, s. 52(1)). The custodian must respond as soon as possible and no later than 30 days after your request (s. 54(2)), or within a 30-day extension if it gives you written notice of the extension and the reason (s. 54(3) and (4)). It may charge a fee, but only after giving you an estimate, and the fee cannot exceed the prescribed amount or reasonable cost recovery (s. 54(10) and (11)). If it refuses or does not answer in time, you can complain to the Information and Privacy Commissioner (s. 54(7) and (8)).

Ask for the complete chart, not a summary: clinical notes, nursing notes, orders, medication records, test results and imaging reports, operative and anaesthetic records, and the discharge summary. Ask early. The CPSO notes that physicians are required to keep adult patients' records for 10 years, so delay can mean records are lost.

Common mistakes

• Waiting for a College decision or a hospital review before seeing a lawyer, while the two-year period runs.
• Assuming a bad outcome alone proves negligence, or that the absence of an apology proves there was none.
• Naming only the doctor when a hospital, nurse or other provider may also be responsible.
• Requesting only part of the chart, or only from one provider.
• Posting detailed accounts of the events online before getting advice.
• Starting a lawsuit with no supportive medical opinion.

What to bring to your lawyer

• A timeline of the care: dates, places, names of the doctors and nurses involved, and what you were told.
• Any records you already have, plus copies of your records requests and the replies.
• Notes you or family members made at the time, and any letters from the hospital or the College.
• Names of the providers who treated you afterwards, who may be able to explain what went wrong.
• Evidence of your losses: pay stubs, tax returns, receipts for treatment and travel.

If you believe a doctor, nurse or hospital failed you or a family member, the most useful step is an early review of the facts and the limitation dates. We can look at what happened, explain what an expert would need to say for a claim to succeed, and tell you whether a lawsuit, a College complaint or both make sense. Learn more about our professional malpractice and negligence work, and contact us for a free first video meeting.

Common questions

Sources

1. Limitations Act, 2002, ss. 4–7, 15 and 21
2. Clements v. Clements, 2012 SCC 32
3. Health Care Consent Act, 1996, s. 11
4. Rules of Civil Procedure, rr. 4.1.01 and 53.03
5. Family Law Act, s. 61
6. Regulated Health Professions Act, 1991, s. 36(3)
7. Personal Health Information Protection Act, 2004, ss. 52 and 54
8. CPSO, Complaints and concerns
9. Canadian Medical Protective Association, About the CMPA
10. Healthcare Insurance Reciprocal of Canada (HIROC)

General information, not legal advice. Every situation is different, and the law can change. Reading this article doesn't create a lawyer-client relationship.