If you have been seriously injured by medical care in Ontario, or if a family member has died in circumstances you suspect involve negligence, the choice of lawyer matters more than it does in most kinds of civil litigation. Medical malpractice is a narrow specialty within civil litigation. The cases turn on the medicine more than on the law, the defence side is unusually well-resourced, and a higher percentage of cases proceed to trial than in any other area of personal injury practice. The lawyer you choose will be making medical, evidentiary, and tactical decisions for several years, and the lawyer’s experience and judgment will shape the outcome.
This is a practical guide to what to look for in a medical malpractice lawyer in Ontario. The goal is not to make the choice for you. The goal is to give you a framework for evaluating prospective lawyers in a way that is grounded in how these cases actually work.
What makes medical malpractice different
Most personal injury claims, including motor vehicle accident and slip-and-fall claims, settle. The insurance industry has a well-developed pricing mechanism for these claims, and settlement is the default outcome.
Medical malpractice is different. The defence side in most Canadian medical malpractice cases is the Canadian Medical Protective Association (CMPA), a not-for-profit medical mutual that represents the great majority of physicians practising in Canada. The CMPA’s mandate is the defence of physicians’ professional reputations, and its resources are substantial. It is well-positioned to defend cases vigorously, including taking them to trial if it considers that defence on the merits is the right outcome. The percentage of medical malpractice cases that proceed to trial is materially higher than the percentage of motor vehicle or slip-and-fall cases that do.
The cases also turn on medicine in a way that other personal injury claims do not. The legal questions (was the standard of care breached, did the breach cause the injury, what are the damages) are stable across all civil litigation. What is distinctive about malpractice is that answering those questions requires the lawyer to engage with clinical evidence: hospital charts, imaging, lab results, expert opinions about what a reasonable physician would have done in the circumstances. A lawyer who is not comfortable working with that evidence will not be able to evaluate or run the case effectively.
These two features (the CMPA defence and the medicine) are why the choice of lawyer matters more in malpractice than in most kinds of personal injury work. A general civil litigator can prosecute a slip-and-fall to a respectable settlement. A general litigator without medical malpractice experience is at a real disadvantage in a CMPA-defended case where the medicine is contested.
Specialization in medical malpractice
Look for a lawyer whose practice is primarily, or substantially, medical malpractice. Many personal injury firms in Ontario advertise that they handle medical malpractice claims, but for some of them, malpractice is a secondary line that they refer out or treat as overflow from a larger motor vehicle practice. That is not the same thing as a dedicated malpractice practice.
Useful questions to ask:
- What percentage of your practice is medical malpractice?
- How many medical malpractice cases are open in your office at the moment?
- Have you handled cases involving the type of injury or specialty in mine?
- How long have you been doing this work?
A lawyer whose answers to these questions reflect a substantial and current medical malpractice practice is in a different position than a lawyer who handles “some” malpractice work alongside other personal injury claims. The difference shows up at every stage of the case, from the initial review of the records to the cross-examination of the defence experts at trial.
Trial experience
Trial experience is the single most important credential in a malpractice lawyer. The CMPA-defended environment is one in which settlement is not assumed, and the lawyer’s track record at trial directly affects how the defence side approaches the case. A lawyer who has tried medical malpractice cases successfully will be taken seriously when the question is whether the defence wants to settle or wants to litigate. A lawyer who has not is, in a real sense, bluffing.
Useful questions to ask:
- How many medical malpractice cases have you taken to trial?
- What types of cases?
- What were the outcomes?
- Are there reported decisions in your name as plaintiff’s counsel?
Reported decisions are public record. CanLII makes them searchable. A lawyer’s history as plaintiff’s counsel in reported decisions is one of the more useful objective measures of their courtroom experience. My own history is reflected in the Notable Cases page, which links to the reasons for decision in each.
Clinical depth
A medical malpractice case is often won or lost on the lawyer’s command of the medicine. Hospital records can run to thousands of pages in a serious case, and the issues are often buried in clinical detail that is not flagged in any obvious way. A lawyer who is comfortable with medical terminology, anatomy, the typical course of illnesses and procedures, and the structure of how patients move through Ontario hospitals will be in a better position to identify the issues, frame the case, and select the right experts than a lawyer who is reading the records as a translator rather than as a participant.
This kind of clinical depth is built up over years of working through medical records and consulting with physician experts. There is no shortcut. When evaluating a prospective lawyer, listen to how they discuss the medicine in your case during the initial consultation. Are they engaging with the clinical specifics, or are they speaking in generalities? Do they understand the relevant specialty? Have they handled similar cases before?
Credentials and peer recognition
A few credentials carry real signal value in Ontario.
Law Society of Ontario Certified Specialist. The LSO administers a Certified Specialist program in defined areas of practice, including Civil Litigation. Certification requires substantial and ongoing experience in the specialty, peer review, and continuing education in the area. A Certified Specialist designation in Civil Litigation is a meaningful peer-validated credential. I hold the LSO Certified Specialist designation in Civil Litigation.
Best Lawyers in Canada, Lexpert, and Chambers. Several legal directories rank lawyers based on peer review rather than client review. Best Lawyers in Canada lists me under Medical Negligence, and the firm has been recognized in equivalent capacities elsewhere. These rankings are not perfect, but they reflect the views of working lawyers about who their peers are.
Speaking and writing. Lawyers who genuinely specialize in malpractice tend to be visible in continuing legal education in the area: speaking at programs run by the Law Society, the Ontario Bar Association, the Advocates’ Society, or various medical-legal forums. Writing in the area, including practical commentary on reported decisions, is another visible indicator. The blog on this site is one example of this kind of writing.
These credentials are not a substitute for the trial-experience and clinical-depth questions above. They are useful corroborating evidence that the lawyer’s claims about specialization are accurate.
Honest case screening
This is the credential that is hardest to evaluate from the outside, but it matters more than most of the others. A good medical malpractice lawyer will tell you, after reviewing the records, whether the case has a reasonable prospect of success. A good lawyer will decline cases that do not meet that threshold, even when the patient’s circumstances are sympathetic. Cases that do not have the medical and causation evidence to win at trial will not win in front of a CMPA-defended trial team, and pursuing them costs the patient time, energy, and (in the contingency-fee context) the fees and disbursements that come out of any eventual recovery.
A lawyer who tells you that you have a strong case before reviewing the records, or who agrees to take the case without doing the medical work to evaluate it first, is not doing you a favour. The favour is the candid assessment, even when the candid assessment is unwelcome. For a fuller discussion of this point, see Suing for Medical Malpractice in Ontario: What You Need to Know.
Communication
Medical malpractice cases take years. From the first consultation to the resolution of the case, the timeline is typically three to five years, sometimes longer if the case proceeds to trial and through any appeals. Over that period, you are entitled to know what is happening with your case, what the next steps are, and what to expect.
The lawyer’s communication style at the first consultation is a reasonable indicator. A lawyer who explains the case clearly, who is willing to discuss the weaknesses as well as the strengths, and who is comfortable answering questions in plain language will tend to communicate the same way through the years that follow. A lawyer who is dismissive, who promises results, or who avoids hard questions in the first meeting will tend to do so later as well.
Questions to ask in the first consultation
A consolidated list of the questions worth asking, drawn from the discussion above:
- What percentage of your practice is medical malpractice?
- How many medical malpractice cases are currently open in your office?
- Have you handled cases involving the same type of injury or medical specialty as mine?
- How many medical malpractice cases have you taken to trial?
- What were the outcomes of those trials?
- Are there reported decisions in your name as plaintiff’s counsel that I can review?
- Do you hold any specialty designations from the Law Society of Ontario or recognition from any peer-reviewed legal directories?
- What is your assessment of my case after reviewing the records, and on what basis?
- If you take the case, who will be doing the day-to-day work, and how will I be kept informed?
- What is the typical timeline for a case like mine?
A lawyer who answers these questions specifically and substantively is in a better position to represent you than a lawyer who answers in generalities. The first consultation is a screening exercise on both sides, and the questions above will tell you a great deal.
Closing
The framework above will help you evaluate prospective lawyers in a way that is grounded in how these cases actually work. The choice is yours, and the right lawyer for your case may not be the first one you speak to.
If you are still in the earlier stages of considering whether to pursue a malpractice claim at all, see Suing for Medical Malpractice in Ontario: What You Need to Know for a more general framework on whether the case is worth pursuing. For a practical overview of the broader range of complaints and reviews available to Ontario patients, see A Patient’s Guide to Making Complaints About Health Care in Ontario.
