Is my surgery a case of negligence?
I recently had disc replacement surgery. Tests beforehand revealed my heart rate was very slow. I asked my surgeon if it was safe to have the surgery. He said yes. During surgery my heart stopped. I was sent to intensive care. Later, I had to have a pacemaker put in.
Under the law in BC, health care professionals have a legal duty to provide proper medical care to patients. If your health care provider fails to provide medical care that meets a reasonable standard, you can bring a medical malpractice claim against them. There are two main types of medical malpractice. The first is when a health care provider is negligent. The second is when they don’t get informed consent from a patient.
A doctor is negligent if they fail to provide a reasonable standard of care. The court would consider the care that a reasonable doctor practising in the same area would provide in similar circumstances. If found to be negligent, the doctor may have to pay damages to the patient. This is to cover the cost of the injury, illness, or other harm that their negligence caused.
Doctors and health care providers are not liable for every mistake or bad outcome. The law recognizes that doctors are not perfect. Often, they have to make quick decisions. And they don’t always have the best information at hand. For a negligence claim, the key question is this: Did the doctor make a reasonable decision that other reasonable doctors would have made in the same situation? Their actions can be reasonable even if it later turns out to be a wrong decision that caused a bad result.
A doctor must get informed consent before providing medical treatment. This means that, before providing treatment, the doctor must inform you of the nature of the treatment, the risks involved, and the options available to you. You may have grounds to sue if the injury you suffered was a known risk that you were not aware of. You’d have to prove that the doctor didn’t tell you about the risk before they performed surgery.
A doctor doesn’t have to explain every possible risk. They must tell you about the risks a reasonable patient would want to know before deciding on treatment. This includes explaining what could happen and the likelihood of it happening.
If your claim is successful, a court can order the doctor to pay you damages for the harm they caused. This might include extra medical expenses, pain and suffering, and loss of enjoyment of life. For more, see this guidance on medical malpractice.
Bringing a medical malpractice claim isn’t your only option. You can also file a complaint with the College of Physicians and Surgeons of BC. This is the governing body for doctors in the province. The College can't order the surgeon to pay you money. But they can discipline the surgeon and have them take remedial steps. See this step-by-step guidance on how to bring a complaint.
If you're considering bringing a claim against your doctor, it's a good idea to seek legal advice. Medical malpractice claims are complex. An experienced legal professional can help you determine the strength of your claim.