Fault

There are certainly blatant cases: the surgeon who leaves an instrument in the chest of a patient or removes the wrong organ. In reality, however, there are far more cases where an error is less obvious.

In these cases, it is necessary to have recourse to experts who can compare what a health professional has done with what the health professional should have done. It is sometimes difficult and costly to find an expert physician to testify against a colleague; however, without this tool, it is almost impossible to win a case.

Damages

In Québec the courts compensate for all losses suffered by a victim connected directly to an error by a physician. This may involve awards for loss of salary, costs of treatment, medication expenses, costs of prothesis, etc. A victim sometimes also is compensated for the loss of a limb or an organ. In some circumstances, certain sums may be granted to compensate for psychological difficulties. Finally, damages also are often accorded for difficulties and inconveniences suffered by a victim or the victim’s family.

It should be remembered, however, that Québec is not the United States. American television broadcasts often carry reports that make mention of judgments of millions of dollars against physicians. These judgments contain a punitive element that is not part of our law. It needs to be always kept in mind that damages of at most several hundred of thousands of dollars will be granted in Québec in important files.

Causality

To obtain benefits of cause against a health professional, it is necessary to prove not only error and injury but also causality: a link between the error and the injury.

For example, a cardiologist who commits an error when operating on a patient with a serious cardiac condition cannot be held responsible for aggravating damages. If after a faulty operation a patient is found to have an incapacity of forty percent and that without the error of the physician the incapacity would have been twenty-five percent, then the professional will be held responsible for the difference, which in this instance would be an incapacity of fifteen percent.