Care that is perceived to be generally of low standard is more likely to include a discrete element that is found to be substandard. Though one event attributable to 1 care-giver is usually central, failure of checks and balances may constitute contributory negligence. Lack of conscientious assessment is the commonest fault. Censure by a regulatory body is more encouraging than criticism by other individual health professionals.
Care that is perceived to be generally of low standard is more likely to include a discrete element that is found substandard. All too frequently unspecified malpractice is invoked to explain unexpected adverse outcome. Indeed, the same landmark study that estimated only a small proportion of negligent events were ever litigated also concluded that malpractice awards reflected severity of outcome rather than occurrence of negligence.
Sometimes the nature of the substandard care is misidentified by the client but, when the alleged malpractice is readily identified and clearly defined separate from the adverse outcome, medical assessment is more likely to find strengths in negligence issues.
Though one event attributable to 1 care-giver is usually central, failure of checks and balances may constitute contributory negligence.The converse of an item on the checklist is not necessarily a strike against successful settlement. An obvious example is "one episode": adverse outcomes frequently result from medically negligent acts only because the usual safety-nets are not working. Indeed, systemic problems are common components of malpractice occurring in medically complex situations that are adjusting to increased fiscal restraint.
Lack of conscientious assessment is the commonest fault. Failure adequately to diagnose in timely fashion is more frequently proven than are substandard surgical technique or medical choices.
Censure by a regulatory body is more encouraging than criticism by other individual health professionals. Criticism by a subsequent care-giver is often the trigger that initiates malpractice enquiry. Such comments are often careless or misunderstood and rarely translate into robust expert opinion. Not infrequently the criticisms are made with incomplete information or mirror unverified distortions in the client's understanding of events.
Although the focus of College of Physicians and Surgeons complaint investigations differs somewhat, or substantially, from negligence requirements, a clear validation arising from such peer review is a bonus.
As 95% of plaintiff medical malpractice successes are settlements, and medical defendants win 80% of judgments, early positioning for an offer to settle should be the primary focus. If such offer is not forthcoming before or on the courthouse steps, the litigator needs compelling reasons for believing experienced defence counsel have made an error of judgment. Exceptionally, trial and appeal to the Supreme Court of Canada is the only way to establish that specific community standards of care are unacceptable.
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