On Thursday, April 8th, the Ontario government directed hospitals across the province to postpone all elective and non-urgent surgeries to preserve resources for the growing number of COVID-19 patients. Pediatric surgeries are excluded from this direction, as are surgeries in Northern Ontario.

With no end to the COVID-19 pandemic in sight, this direction raises concerning questions for many people who are waiting for surgeries. For instance, what happens if a “non-urgent” surgery is delayed and the patient’s condition gets worse, or if a seemingly minor symptom develops into a more serious condition due to a delay in receiving treatment? Can a patient sue their treating doctor or the hospital for medical malpractice in these circumstances?

Given the unique circumstances at play, it is difficult to say whether a claimant will be successful in advancing a claim against their treating doctor or hospital for medical malpractice due to a delay in treatment.

Medical professionals, regardless of their area of expertise, owe a duty of care to their patients. If a patient believes that they have been harmed due to the negligence of their doctor, they need to prove that their doctor breached that duty by failing to meet the standard of care they owed to that patient. For instance, the patient might argue that the doctor failed to meet the standard of care they owed to the patient by delaying necessary treatment or procedures.

The patient must also prove that the doctor’s failure to meet the standard of care they owed to the patient contributed to the unfavourable outcome or harm. Using the delayed treatment example, the court would ask “’but for’ the doctor’s decision to delay treatment, would the unfavourable outcome have occurred?”

Finally, the patient must prove that they suffered loss or injury. For instance, the patient might show that the delay in treatment resulted in their condition getting much worse, or that pain relating to their condition was unnecessarily prolonged or intensified.

Medical Malpractice Claims for Delayed Surgery During the COVID-19 Pandemic

A medical malpractice claimant may struggle to advance a claim against a medical professional or hospital for delayed surgery during the COVID-19 pandemic. First, given the unique and uncharted circumstances at play, public policy considerations or exceptions may come into play if and when such claims come before the Ontario courts.

Furthermore, the Ontario government could pass legislation protecting medical professionals and institutions from liability in these specific circumstances. In a previous blog post, we discussed the Supporting Ontario’s Recovery Act, 2020, S.O. 2020, c. 26, which limits the ability of personal injury claimants to sue others after being exposed to or contracting COVID-19 in certain circumstances. 

Since claimants have two years from the date of injury to file a claim, it’s too early to say how courts will manage medical malpractice claims for surgeries delayed due to emergency health protocols. In fact, many future medical malpractice claimants may not know they have suffered injury yet.

Responses to the COVID-19 pandemic are always changing, and whether the Ontario government will implement changes to protect hospitals and medical practitioners from liability for delayed surgeries and what those changes will look like is anyone’s guess. What is clear is that countless individuals will be affected by this directive, and many will likely wonder whether a delay in treatment resulted in a different outcome. If there is reason to believe you may have suffered from medical malpractice, you should speak with a skilled medical malpractice lawyer as soon as possible to review your case and determine how to best proceed.

Skilled Medical Malpractice Lawyers Serving Eastern Ontario and North Bay

At Tierney Stauffer LLP, our experienced medical malpractice lawyers understand your rights and will work tirelessly to preserve them. If you believe you have been harmed in some way due to medical malpractice during the COVID-19 pandemic or have questions regarding your rights, contact Tierney Stauffer LLP for a free consultation with a skilled member of our personal injury team.

Our lawyers recognize that no two injury claims are the same, which is why we give each claim the personalized attention needed to protect your rights and bring about the best possible outcome. Call us at 1-888-799-8057 or contact us online to arrange a consultation.


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