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According to the Canadian Institute for Health Information, 1 in 17 hospital stays in Canada in 2024–2025 involved at least one instance of unintended harm. The hard part is knowing whether what happened was a legal wrong. Here are some tips from the Head of Medical Malpractice at Diamond & Diamond Lawyers, Jeremy Syrtash:
1. Don’t assume a bad outcome is malpractice
Malpractice is personal injury caused by a health care provider, such as a doctor, nurse, midwife, or dentist. In Ontario, a patient generally must prove two things: the care fell below what a reasonable practitioner in the same field would provide, and that failure caused the injury.
“Not every time someone gets injured by a medical professional does that mean it’s negligence,” says Syrtash. “And the reverse is also true: just because a doctor makes a mistake doesn’t necessarily mean that’s the cause of the injury.”
2. Ask about the risks before you sign
Ontario’s Health Care Consent Act requires informed consent. You are entitled to know the treatment’s nature, benefits, material risks and side effects, the alternatives, and what happens if you say no. A disclosed complication is harder to challenge. If the risks were never explained, the question is whether a reasonable person in your position would have refused.
3. Write it down and get your records
Record dates, names, and what you were told. Ontario’s Personal Health Information Protection Act gives you the right to your own health records. Providers generally have 30 to 60 days to respond and may charge a reasonable fee. Ask for the complete chart, including nursing notes and consent forms.
4. Understand what the law compensates
If a medication error is caught and reversed with no lasting effects, there may be negligence but nothing to compensate. Where harm is lasting, compensation can cover pain and suffering, lost income, future care, and out-of-pocket costs. Family members may also claim for the loss of care and companionship. Awards for pain and suffering are capped in Canada, and the losing side can be ordered to pay part of the winner’s legal costs.
5. Know who may be responsible
A claim may extend beyond one doctor, or, any healthcare administrator. Hospitals, clinics and treatment facilities can be responsible for their doctors, nurses and staff, and for failures in their own policies or staffing.
6. Know the difference between a complaint and a claim
A hospital’s patient relations office, Ontario’s Patient Ombudsman, and the College of Physicians and Surgeons of Ontario can hold providers accountable, but they do not award compensation. That requires a civil lawsuit.
7. Get advice early
Ontario sets strict deadlines for starting a claim, and evidence is easier to gather early. These cases depend on opinions from qualified physicians in the same field, and doctors are defended by the Canadian Medical Protective Association. In the five years ending in 2019, its figures show about 56 per cent of claims were dismissed or abandoned and 36 per cent settled.
Jeremy Syrtash is the Head of Medical Malpractice Litigation at Diamond & Diamond Lawyers LLP. He has spent over a decade as co-counsel on medical malpractice trials across Canada.
Contact Diamond and Diamond Lawyers
The team of lawyers at Diamond and Diamond handles medical malpractice claims, including birth injuries, surgical errors, and misdiagnosis. Call the 24/7 injury hotline at 1-800-567-HURT or visit diamondlaw.ca to speak to someone now. To reach Jeremy Syrtash directly, [email protected]. Free consultations and case evaluations are confidential and available to clients throughout Canada.
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