InfoLAW: Malpractice Lawsuits

What should I do when I receive notice of a lawsuit?

As soon as you receive any indication that you may be involved in a lawsuit involving patient care, contact your employer and the Canadian Nurses Protective Society (CNPS) for guidance and assistance. If you are named as a party (defendant) in any legal document, you should be represented by a lawyer. Your employer or the CNPS may assist you in obtaining legal representation.

Who will pay for my lawyer?

If you are an employee, you should generally be covered by your employer’s liability insurance and entitled to free representation by a lawyer appointed by the employer’s insurer.¹ In some cases, there may also be funding available through your union. If the claim is one for which you already have adequate coverage from your employer or union, you will generally be expected to rely on the protection made available by your employer or union. CNPS beneficiaries who do not have adequate representation through these sources may be eligible for CNPS assistance.

How is a malpractice lawsuit initiated?

The first document filed is a Notice of Action and/or a Statement of Claim. These documents give notice to the defendant(s) that a lawsuit has been initiated and states the nature of the claim. In malpractice cases, the patient (plaintiff ) usually alleges harm caused by the actions or inactions of the named defendant(s) and seeks money (damages) as compensation for injuries suffered while in the care of the defendant(s).²

After the Statement of Claim is served on one or more defendants, each defendant’s lawyer will usually file and serve a Statement of Defence in response. This document addresses the allegations in the Statement of Claim and informs the plaintiff that the defendant contests the claim.

Who will be sued?

After consultation with the plaintiff, a review of the patient’s chart and the facts of the case, the plaintiff ’s lawyer decides who will be defendants in the lawsuit. In many cases, the employer, institution/agency and all members of the health care team involved in the patient’s care at the relevant time will be named as defendants. This could include nurses, physicians, ambulance attendants, nursing and medical students, other employees and independent contractors.

What are Examinations for Discovery?

After the Statement of Defence is filed, lawyers for both sides will conduct Examinations for Discovery. Discoveries are pre-trial proceedings to obtain more information. All parties to the lawsuit are questioned under oath, and the questions and answers are recorded. Information from these proceedings could be used at trial and may result in settlement or discontinuance of the lawsuit.3

What happens at the trial?

In Canada, civil trials involving health care professionals can be heard by a judge alone or by a judge and jury. Because of the complex issues and technical evidence, most malpractice cases take place before a judge alone. If your case is heard only by a judge, that judge hears the evidence, decides which facts to accept, applies the relevant law to those facts, and makes a decision about liability.

The trial itself begins with opening statements by lawyers representing both sides. These statements are followed by a presentation of the plaintiff ’s evidence about the case. The plaintiff ’s lawyer will use witnesses and documents to prove their case. Your lawyer may cross-examine each of the plaintiff ’s witnesses. After the plaintiff presents their case, the defence presents its evidence. If you are called to give evidence as a defence witness, you will be questioned first by your lawyer and then cross-examined by the plaintiff ’s lawyer. You may also be re-examined by your lawyer.

After all the witnesses have been questioned and the lawyers have made closing arguments, the judge makes a decision. The decision can be immediate, but it is usually rendered later in an oral or written judgment. It is possible for either party to appeal the trial decision to the Court of Appeal. In rare circumstances, parties may appeal further to the Supreme Court of Canada.

Will I lose my job, be disciplined by my licensing body, or go to jail?

Being named in a civil lawsuit does not automatically mean that you are responsible for the patient’s injuries or losses, or that there will be negative repercussions for you personally. This type of legal action is not a criminal charge and will not result in imprisonment. Nor does it result in automatic disciplinary proceedings by your licensing body. Such a process must be initiated separately. It is also unlikely that you will lose your job as a result of a malpractice lawsuit because the termination could be interpreted as an admission of wrongdoing that could have a negative impact on the employer’s own liability.

If you are involved in a malpractice lawsuit, you should inform your employer immediately. Do not delay, because there are deadlines for most stages of a civil action. Prompt attention is always in your best interest.

CNPS beneficiaries can contact CNPS at 1-800-267-3390 to speak with a member of CNPS legal counsel. All calls are confidential.

1. For more information, refer to infoLAW, Negligence (Vol. 3, No. 1, November 2004, revision of September 1994); J.J. Morris, Margot Ferguson, and Mary Jane Dykeman, Canadian Nurses and the Law, 2nd ed. (Toronto: Butterworths, 1999); and Ellen I. Picard and Gerald B. Robertson, Legal Liability of Doctors and Hospitals in Canada, 4th ed. (Toronto: Thomson Carswell, 2007).
2. infoLAW, Examinations for Discovery (Vol. 13, No. 1, January 2004).

December 2007; Revision of September 1998

THIS PUBLICATION IS FOR INFORMATION PURPOSES ONLY. NOTHING IN THIS PUBLICATION SHOULD BE CONSTRUED AS LEGAL ADVICE FROM ANY LAWYER, CONTRIBUTOR OR THE CNPS. READERS SHOULD CONSULT LEGAL COUNSEL FOR SPECIFIC ADVICE.