Frequently Asked Questions: Medical Malpractice

Is there a limitation period on a civil action?

A civil action must be commenced within the limitation period prescribed by legislation. The limitation period for a particular action cannot be determined without careful consideration of the relevant facts, legislation and case law. If you are considering whether you should commence a malpractice or product liability action (or any other action), you should immediately seek legal advice with respect to the limitation period for that action.

What is the probability of reaching a settlement?

A plaintiff in a civil action may recover compensation by a settlement, or by judgment granted by the court. In our experience, it is much less likely to recover compensation by settlement in medical malpractice cases than in other types of civil litigation suits (such as motor vehicle accident lawsuits). However, many medical malpractice and product liability actions result in fair settlements when the plaintiffs are advised and represented by counsel who are willing and able to effectively prosecute those actions through examinations for discovery, trials, and appeals (if those steps are justified by the probability of obtaining judgment and the likely amount of any judgment that may be obtained).

What is the probability of obtaining a judgment in a medical malpractice lawsuit?

In order to obtain a judgment in a medical malpractice action, it is not sufficient for the plaintiff to establish that the treatment of the patient (for example, by medication, surgery, or other procedure) was ineffective or harmful. Rather, there are a number of specific elements that must be established in each particular case. Thus, the plaintiff can obtain judgment by establishing the elements of a cause of action:

• in negligence for breach of the standard of care

• in negligence for breach of the standard of disclosure
• for breach of a contract to provide medical services in accordance with the standard of care

• for battery
• in negligence for product liability


The probability of the plaintiff obtaining a judgment should be assessed on the basis of the evidence available to establish the elements of the cause of action.

What kinds of expenses can plaintiffs incur in a medical malpractice lawsuit?

In advancing a malpractice action to trial, the plaintiff will incur at least the following expenses (unless their lawyers agree to cover some or all of these costs):

• a fee charged by the Clerk of the Court to file the statement of claim ($250.00)

• fees charged to respond to requests for copies of the records of medical practitioners and hospital authorities (normally between $60.00 and $100.00 for each request) plus the amount charged for photocopying (which can be significant if there are many records)
• fees charged by experts to provide their opinions (these fees vary depending on their area of expertise, and the amount of time expended in reviewing medical and other records, transcripts of questioning for discovery and literature, and in forming the opinion)
• charges of court reporters for attending at, and preparing transcripts of, questioning for discovery conducted on behalf of the plaintiff and for providing copies of transcripts of the questioning of the defendant
• fees charged by experts, doctors and other practitioners who have diagnosed and treated the injury to the plaintiff, to prepare for and attend at trial (these fees vary depending on their hourly or daily rates and the amount of time they expend) plus any expenses incurred by witnesses who must travel to attend the trial

• miscellaneous expenses for long distance telephone calls, faxes, deliveries, photocopying, etc.


The plaintiff will also be required to pay the legal fees of the lawyers who prosecute the action unless those lawyers agree to a contingency fee (a fee based on a percentage of recovery from the defendant).

GST (Goods and Services Tax) will be payable on the legal fees of the lawyers who prosecute the action and on most of the expenses incurred to prosecute the action (the exceptions include the fee charged to file the statement of claim and the charges for other services provided by government agencies).