Nova Scotia medical malpractice law

You generally have two years from discovery to start a medical malpractice claim in Nova Scotia. The act or omission also starts a 15-year limit. The earlier deadline applies.

Treatment isn't always when the discovery clock starts. Even if discovery comes later, a time limit applies. The Limitation of Actions Act sets both deadlines, but it also pauses time for minors and addresses wilful concealment.

Check your deadline first. Then ask whether the medical evidence supports your claim. Although Nova Scotia doesn't require an affidavit of merit to start a claim, proving the standard of care and causation needs expert evidence.

The deadline and when the clock starts

Your ordinary limitation period starts at discovery, as section 8 of the Limitation of Actions Act provides. That date depends on your circumstances. Your lawyer needs the treatment date and when you first learned something might have gone wrong.

Discovery and the outer limit

You're still bound by the ultimate limitation period after discovery. When the discovery clock starts, picture the other clock already running from the act or omission. Have your lawyer check both clocks.

Getting a diagnosis or your chart doesn't, by itself, settle when you legally discovered the claim. Your lawyer needs to hear what you knew as things happened. Your first recollection isn't necessarily the legal date; let your lawyer work that out.

While the defendant wilfully conceals the claim, the ultimate limitation period doesn't run under the Act. You'll need a lawyer to check whether that rule applies. An incomplete explanation doesn't mean wilful concealment; show your lawyer any communications that worry you.

Claims involving children

Limitation periods don't run while the claimant is a minor. Nova Scotia's age of majority is 19.

If the injured patient is a child, have a Nova Scotia lawyer calculate the dates. Don't wait to gather the treatment history just because time is suspended. When you note the care dates in question, clearly record the child's age beside them.

What compensation is capped?

Nova Scotia law doesn't cap economic losses, which include lost income or the cost of future care. Pain and suffering have a cap, though. Pain and suffering fall under non-pecuniary damages, for which judges have set a national upper limit.

The Supreme Court of Canada's trilogy set the non-pecuniary cap and includes Andrews v. Grand & Toy Alberta Ltd.. Inflation indexing adjusts it. See McKellar Structured Settlements for updated figures; McCague Borlack LLP explains the cap and how it's indexed.

Don't expect the cap as standard. Only the most catastrophic injuries qualify for the full amount in court. Ask your lawyer where pain and suffering fit in their assessment of your injury, including loss of enjoyment of life.

Keep a separate record of your financial losses. Give lost income or care expenses their own entries rather than putting everything under one pain and suffering heading, so your lawyer has a clearer record of what you've lost.

What a claim needs before and at filing

You don't need pre-suit notice in Nova Scotia to claim against doctors or nurses, or against hospitals. Starting a claim doesn't require an affidavit or certificate of merit either. You'll still need medical evidence.

The physician's evidence

Proving the standard of care and causation takes expert evidence from a physician practising in the same field. The evidence looks at whether your treatment met the standard of care and how it connects to your injury (causation).

You'll have to serve expert reports within the time allowed by the provincial rules of court. When discussing deadlines with your lawyer, ask how medical review fits with filing and later report deadlines. An affidavit isn't a substitute for the report.

If fault is shared

Nova Scotia's Contributory Negligence Act provides for dividing fault. The comparative-fault rule can reduce a plaintiff's recovery for shared fault without automatically barring the claim.

Don't leave out anything the defence might question when you tell your lawyer what happened. Ask how shared fault could affect your claim, if your lawyer thinks it matters here.

How a case usually runs

The facts and medical evidence determine how your case will proceed. The Canadian Medical Protective Association (CMPA), which contests most claims, defends most physicians in Canada. Early legal advice should include a careful look at the evidence.

What you can do now

You can speak to a lawyer even if you haven't polished your account of what happened. Start with a short, dated outline, marking any dates you aren't sure about as uncertain.

• Record what happened when. Give the treatment date its own entry, apart from when you learned there might be a problem.
• Start with your own records. Your chart belongs in one place with any discharge paperwork or correspondence you've kept. What else does your lawyer need?
• What's different in your daily life? Describe the injury as you'd explain it yourself. Keep any records that show lost income or care expenses.
• What does the medical review involve? Have them explain how they'll get physician evidence, including when reports will be due as your claim moves ahead.

Tell the lawyer right away when the patient you're calling about is a child or has died. A general deadline calculation isn't enough here; ask which rules apply to the person you're calling about.