Saskatchewan medical malpractice law

For a Saskatchewan medical malpractice claim, the usual filing period is two years from the day the claim is discovered. That deadline is in The Limitations Act.

Have the deadline checked early. Under the Act, the clock starts with discovery. An outer limit also applies. Limitation periods are suspended for as long as the claimant is a minor. A Saskatchewan lawyer should check your deadline if there's a long gap between treatment and your first concerns. Have the lawyer explain which rule applies.

You'll need medical evidence, too. You can start proceedings in Saskatchewan without an affidavit or certificate of merit. Expert evidence is still required to prove the standard of care and causation. This is general information. It isn't legal advice.

The deadline: discovery, the outer limit and children

Sections 5 and 6 of The Limitations Act set the discovery-based limitation period. Don't assume your treatment date starts that clock. Your medical history can help a lawyer identify when the claim was discovered and work out the filing date.

The act or omission starts the clock for the ultimate limitation period. Discovery comes after that clock starts. You'll find that limit in Section 7. Even if you discover the claim later, you don't have unlimited time to bring it.

Limitation periods don't run during childhood: they're suspended while the claimant is a minor. For your child's claim, ask a lawyer to explain the suspension and where the outer limit fits in. The adult discovery clock alone won't tell you the deadline for a child's claim.

What the damage cap does, and doesn't, cover

There are separate categories of losses. There's no statutory cap on economic losses, which include lost income or future care. Non-pecuniary damages cover pain and suffering, as well as loss of enjoyment of life. A national cap, set by judges, limits those damages.

The Supreme Court of Canada's trilogy of decisions set the non-pecuniary limit. One is Andrews v. Grand & Toy Alberta Ltd.. The cap rises with inflation. McKellar Structured Settlements publishes the indexed figures. For an explanation of the trilogy cap and its indexing, see McCague Borlack LLP.

The cap isn't a typical award. Courts award the full amount only for the most catastrophic injuries. Don't use the full cap as the starting figure for your claim. Ask a lawyer for a separate assessment of possible pain-and-suffering damages. The pain-and-suffering award is separate from amounts for income loss or future care costs.

Ask a local lawyer to check whether your damages are subject to an overall limit. Ask that lawyer how the rules apply to punitive damages or wrongful-death damages, too. Those categories may fall outside the rule for non-pecuniary damages.

What you need before and at filing

For Saskatchewan malpractice claims against doctors or nurses, or against hospitals, there's no pre-suit notice requirement. An affidavit or certificate of merit isn't required to start a claim, either. Starting the claim is one step. To prove the claim, you still need medical evidence.

Expert evidence remains necessary

A physician in the same field must provide expert evidence to prove the standard of care and causation. The care must be assessed against the applicable standard. The expert report must contain that assessment. It also examines whether the alleged failure caused the harm.

Saskatchewan's rules of court set the deadlines for serving reports. Ask your lawyer which timetable applies. You don't need a filing certificate. Medical review still takes time, and you'll need to serve the expert reports by the deadlines.

Shared fault can affect damages

Fault is apportioned under Saskatchewan's The Contributory Negligence Act. In Saskatchewan, the approach is pure comparative. Damages can fall if a patient shares fault. That doesn't automatically bar the claim. Ask a lawyer how an allegation of shared fault could affect your claim.

If the defence might raise a concern, discuss it with the lawyer (even if it's uncomfortable). Where treatment accounts differ, your lawyer needs to know. Point out records that could clarify what happened. Your lawyer can assess a shared-fault allegation. You don't have to tackle that assessment yourself.

How a malpractice case usually runs

The medical evidence will get close attention. Most physicians in Canada are defended by the Canadian Medical Protective Association (CMPA). It contests most claims. Seek legal advice early. A lawyer needs to consider the deadline while also allowing for expert evidence.

What to do now

You don't need a polished account before asking for advice. Start with what you remember. You can point out anything you're unsure about. First, have the deadline checked.

• Your notes can start with the treatment dates you're sure of. When did your concern begin? Note that, too. Mark whether each date comes from your memory or the records.
• Don't discard medical records you already have. You don't have to interpret every chart entry yourself. Point out the chart entry that concerns you to the lawyer.
• Gather documents that support the income loss or care costs you're claiming. To assess those losses, the lawyer may need more documents. Ask which ones.
• Have your limitation period assessed by a Saskatchewan lawyer. Tell the lawyer at your first conversation if the claim concerns a child.

It's fine to say you're unsure. The chart may not match your memory. You might also be unsure when the condition was first identified. The consultation is a chance to discuss those uncertainties. If you can't remember something, don't fill it in with a guess.

Before you finish the consultation, ask what happens next. The lawyer can tell you which records to bring. Also ask when you can expect the lawyer's advice on your filing deadline. Your treatment history affects that assessment. A Saskatchewan lawyer can explain how the rules apply to what happened during your treatment.