Liability in medical malpractice cases functions by proving a breach in the standard of care that leads to the harm the person has suffered. First, a person must establish what the standard of care is in relation to a particular task that a doctor is performing during the course of their professional activities. Then a person must prove that this breach in the standard of care caused the injury they sustained.
To most effectively determine liability in your Toronto medical malpractice case, it is pertinent that you consult with a knowledgeable lawyer as soon as possible. An experienced Toronto medical malpractice lawyer will be able to gather the necessary evidence to help produce a successful result on your behalf.
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Role of Medical Experts
In medical malpractice cases in Toronto, determining liability can prove complicated, and there are many different individuals involved. The standard of proof applicable in Toronto medical malpractice cases is the balance of probabilities. There is an extensive body of legal precedents that a lawyer will be able to refer to in order to determine how the law balances probabilities to connect an error on the part of the doctor to the outcome on the part of the patient.
When a lawyer screens cases in which the law does not provide a clear precedent, they will retain experts, such as doctors who are specialists in their respective fields, who are able to opine on what the standard of care under the circumstances would be and how any breach of that standard of care may have lead to the patient’s injuries.
When prosecuting a case, ultimately, lawyers always rely on the opinions of their medical experts because no matter what the case law says, they have got to prove each case on an individual basis, specific to the treatment that the individual patient has experienced. Ultimately, liability comes down to proof that harm was caused to the patient by the doctor’s error, as determined upon by the balance of probabilities. Such findings can help determine liability in Toronto medical malpractice cases.
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Signing a Consent Form
Signing a consent form can affect the person’s medical malpractice case because what a consent form conveys is that the person is being informed of the risks, is aware of the risks, and consents to the risks of the procedure. So, if a person consents to the risks and if that consent is found to be meaningful in the context of the harm that the person actually suffered, the person may be deemed to have known of the risks that they would suffer that harm. The fact that the person chose to proceed despite being aware of the risk that they would suffer this harm may constitute a defense. This should be noted when determining liability in a Toronto medical malpractice case.
An example of this would be if a person was aware that a drug that they are being prescribed may have certain side effects, and that person consents to undertake a course of that drug, having been fully informed by their doctor of the risks. If that person starts to suffer from the known side effects, the risk of which they consented to, the doctor may have a defense in that the person consented to the known risks of the harm that they ultimately suffered. This may have an impact on determining liability in a Toronto medical malpractice case.
If, for example, the harm ultimately suffered is outside of the scope of the known risks being consented to, then the consent would not constitute a defense and a person would be able to proceed with the case. If a doctor knew that the drug had serious side effects but what was ultimately experienced was an adverse reaction with another drug a person was taking that the doctor failed to be aware of, but should have been aware of, then a person’s consent to the known risks associated with the first drug would not be a meaningful defense.
Likewise, if a person had a preexisting condition that a doctor should have been aware of, that would interact adversely with a particular drug, that person’s consent to the known risks would not be a meaningful defense: the patient would not have known about these risks, however, the doctor should have known.
When the harm actually suffered is outside the risks being consented to, then the consent would not constitute a defense to a medical malpractice claim, as long as under the standard of care, the doctor should have been aware of the risks of harm that the patient was not aware of. This may affect the determination of liability in a Toronto medical malpractice case.