Medical Malpractice: to complain or to sue?

Written by Rozmin Mediratta

For the sake of (relative) simplicity, this blog post will focus on doctors. Similar questions arise, however, in the context of other regulated health professionals in Ontario, of which there are 26 under the Regulated Health Professions Act ("RHPA").

While both regulatory complaints and civil suits can result from the same event, the processes and outcomes involved in each are distinct, including everything from the names of the parties (plaintiff/defendant in civil suits versus complainant/respondent in regulatory complaints) to the remedies available.

How do I start the process, and what will it cost me?

To make a complaint, you simply need to write a letter to the College of Physicians and Surgeons (the "College") detailing the event. Section 43(1)(b) of the Personal Health Information Protection Act, 2004 ("PHIPA") allows the College to collect the complainant's medical information in order to independently investigate the complaint. This process is free and you are not required to hire a lawyer, although you can always choose to.

To start a civil suit, you need file a Statement of Claim with the courts, which currently costs $220. This starts the long and complicated litigation process, which includes examinations for discovery and trial, for which a lawyer is highly recommended. You and your lawyer would be responsible for gathering and presenting all of the evidence to prove your case.

What is the threshold for the complaint or claim to be successful?

The College's mandate is to act in the public interest. Thus, the College's primary concern is whether the doctor's conduct met the standard of the profession.

On the other hand, a civil suit will only be successful if you can prove that the doctor's conduct fell below the professional standard, and that his/her conduct caused you harm.

What can I get in the end?

The College cannot award financial compensation, only the courts can. Unlike the courts, however, the College has the authority to discipline a physician, including suspending or revoking a license.
While there can be a complaint and civil suit at the same time, no information, report or decision from the regulatory process is admissible in civil court (see section 36(3) of the RHPA).

The information you obtain at this site (including this blog) is not, nor is it intended to be, legal advice. You should consult a lawyer for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create a lawyer-client relationship. Please do not send any confidential information to us until such time as a lawyer-client relationship has been established. 

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