Medical Malpractice

Steps in a Civil Claim

Below you will find a summary of typical procedures in a medical negligence claim.

This is not legal advice. If you intend to file a medical negligence claim, you should consult with a lawyer.

Claim forms

i) Obtain Medical Records

Our experienced medical malpractice lawyers will first obtain and organize your medical records. We will request access to all documents that are relevant to the care (or lack thereof) that you received, and the costs you incurred as a result. These documents may include:

  • Communications with your doctor and insurance providers
  • Bills for treatments not covered by insurance
  • Autopsy reports if you are filing a suit on behalf of a deceased individual

ii) Obtain Expert Opinions

In order to proceed with a medical negligence claim, we must obtain expert opinions as to whether the standard of care was met, and whether any alleged failures in the standard of care caused or contributed to your injury.

It is important to find the appropriate expert with experience in clinical and/or hospital practice, academia, and medical research. While each party will typically retain their own experts, an expert must review the case independently and objectively to fulfill their duty to the court. Tyr works with a robust roster of leading experts across all medical disciplines.

iii) Prepare and Respond to Pleadings

Once we have sought and obtained preliminary expert opinions (a process which typically takes several months) your lawyers will draft a Statement of Claim which sets out the facts of your case.

The Statement of Claim is served on the allegedly negligent healthcare provider's lawyers and filed with the Court. This alerts the healthcare provider that a claim has been brought against them. The healthcare provider must then file their version of events in a Statement of Defence. The Statement of Claim and Statement of Defence are known as “pleadings”.

iv) Prepare for and Attend Examinations for Discovery

Once pleadings have been exchanged, each party will prepare an Affidavit of Documents, which includes all documents, records and correspondence relevant to your matter. Lawyers will then schedule Examinations for Discovery (referred to as "depositions" in the United States), which is the first opportunity for each party's lawyer to ask questions based on the pleadings and Affidavit of Documents. Oral responses to the questions asked of you at Examinations for Discovery form part of your evidence in the case. Your lawyer(s) will work with you to prepare for Examinations for Discovery and will be present with you during the examinations.

v) Settlement, Mediation or Trial

Once Examinations for Discovery are complete, parties may engage in negotiations to settle the case. This is typically achieved at a Mediation.

  • Mediation is an opportunity to settle your claim with the help of a neutral third party. Typically, the stronger the evidence that the healthcare provider was liable for your injuries, the more likely it is that their lawyer will seek to mediate the dispute and avoid a lengthy and costly trial.
  • Each party will prepare a Mediation Brief that is intended to persuade the other side of the strength of their position. The mediator will assist in negotiating an outcome of the case, but is not in a position to decide anything on the case.
  • While most medical negligence claims are settled out of court, some will proceed to trial. If so, a pre-trial conference is scheduled. This is an informal and non-binding settlement conference presided by a judge (who will not be hearing the case at trial). If the parties are unable to settle the case, a trial will commence, often over the course of several weeks, during which you, the healthcare provider, experts and any witnesses will testify.