A complication is not a fault. So how do you know?

An operation goes wrong. A diagnosis comes late. A child is born with an injury nobody had mentioned. The first thing you want to know is whether it could have been avoided.

The law’s answer is more demanding than one would wish: a bad outcome, however serious, does not prove that anyone was at fault.

A doctor owes means, not a result

Except in specific situations, a health professional is not required to cure. They are required to take every reasonable means to get there. The court therefore asks whether they acted as a prudent, diligent and competent doctor placed in the same circumstances would have. If recognised practices were followed, the error is not a fault.

There are situations where the obligation becomes one of result — operating on the correct side, for instance. But those are the exceptions.

Three elements, and you need all three

A claim only holds if you establish a fault — a departure from what a reasonable professional would have done; an injury — real harm, physical, psychological or financial; and a causal link — that it was the fault, and not the normal course of the illness, that caused the injury.

It is almost always the third element that decides the file. A real fault that changed nothing about the outcome does not give rise to compensation.

Against whom, exactly?

People say “sue the hospital”, but it is not that simple. The institution answers in principle for the faults of its salaried staff — nurses, orderlies, technologists. Doctors, for their part, most often practise as self-employed professionals. Depending on who did what, the claim is not directed at the same parties, and that is a question to settle early.

The medical record comes first

Nothing serious can be assessed without the complete record: progress notes, operative reports, imaging results, anaesthesia sheets.

You are entitled to it. The institution or the professional has 30 days to answer your request. If access is refused, or if the deadline passes without an answer, you have 30 days to ask the Commission d’accès à l’information to review the decision.

Request the record early, even if you are still unsure about taking any further step.

Filing a complaint and claiming compensation are not the same thing

A complaint to the institution’s service quality and complaints commissioner leads to conclusions within a maximum of 45 days. If the complaint concerns a physician, it is referred to a medical examiner, who also has 45 days. You can then turn to the Protecteur du citoyen.

That route serves to have a practice corrected and to obtain explanations. It does not compensate you. Only a civil claim does. The two can move forward in parallel.

Expert evidence, the heart of the file

A court does not decide a medical question on the patient’s account alone. It takes an expert in the same field, who reads the record and says whether the conduct complained of departed from recognised practice. It is often the largest expense, which is why a serious file begins with an analysis of the medical record, not with the expert report.

The deadline

The prescription period is three years. It runs from the moment the injury becomes apparent — not necessarily the day of the procedure. Where harm appears gradually, the starting point is open to argument, and that is sometimes decisive. Where the victim is a child, the rules carry nuances best verified quickly rather than assuming there is time.

What to do now

Write the chronology while it is fresh: dates, names, what was said and when. Keep appointments, prescriptions, messages. Request the medical record. And have the situation assessed before the deadline becomes the real problem.

Sultan Avocat inc.

This text provides general information and is not legal advice. Every medical file has its own facts and its own deadlines. If you believe you have suffered harm, consult without delay.