Are there limitation periods for medical malpractice claims?

April 28, 2022

There are strict limitation periods for filing medical malpractice claims. Generally, you have two years from the date you knew or should have known about the injury caused by medical malpractice. Often, the injury timing is obvious, but in some cases, the extent or cause of harm may only become clear months or years later. For minors, the two-year window doesn't begin until they turn 18 unless a parent or guardian signs an Affidavit of Litigation Guardian. For individuals without the capacity to make a claim, the limitation period does not start unless a litigation guardian is in place.

Importantly, laws also impose an absolute limit of 15 years from the date of the medical error or omission. This applies regardless of when the injury was discovered, except for minors or those without capacity to file claims.

If you believe you've experienced medical malpractice, act quickly to protect your rights. Contact a medical malpractice lawyer to explore your options and ensure you meet these legal deadlines.

FAQs.

Who Can Apply for the Canada Disability Benefit (CDB)?: To be eligible for the Canada Disability Benefit (CDB), the applicant must be between 18-64 years old, be approved for the Disability Tax Credit, and have filed income tax returns in the previous year.
What other expenses are involved in an LTD claim?: Apart from legal fees, every case requires that the law firm incur certain expenses. Most expenses in an LTD claim are incurred in obtaining necessary information, including medical records, expert assessments, and reports from physicians and other healthcare providers.
Other expenses will include court filing fees, process serving fees, and mediator fees. At the conclusion of a successful claim, we will seek to recover the above-mentioned expenses, known as ‘disbursements’, from the insurer. You will be responsible for the portion of expenses that are not recoverable from the insurer. Those expenses will be charged against your settlement or judgment.
If we are unable to recover compensation for you, you will not be charged expenses.
How much will my LTD claim cost me?: We will make reasonable efforts to resolve your long-term disability claim as quickly and cost-effectively as possible.
Our team of lawyers will review your long-term disability insurance policy when handling your LTD claim. We will also check your collective agreement if you are a union member.
Additionally, we will look at the insurer’s claim file. We will examine the medical evidence and other facts supporting or weakening your long-term disability claim. We will also address the legal issues that need consideration.
You usually pay fees, and applicable HST on fees, after the LTD claim ends. Whether you are required to pay fees will depend on the outcome of your claim. If you recover compensation through a settlement or judgment, a money fund will exist and legal fees will be payable out of that fund. If we are unable to recover compensation for you, no legal fees will be payable.
If you are successful with your claim, the insurance company will pay a part of your legal bill as ‘costs’, effectively reducing the amount of fees that you owe to our firm.
What happens if I delay disputing an insurance company’s denial of long-term disability benefits?: If you wait too long to challenge an insurance company’s denial of your long-term disability benefits, you could lose your right to sue the insurer. This is one reason, among many, why it is essential to contact a lawyer immediately following a denial or termination of benefits.
Can a long-term disability insurance company make me see a doctor they choose for a medical assessment?: Before a lawsuit starts, an insurance company is usually entitled, by the terms of the policy, to request reasonable medical examinations in order to substantiate or refute a claim of disability.
However, this right has limits. You can ask for help in traveling for an assessment. This includes transportation, meal costs, and overnight hotel stays.
Even after a lawsuit begins, the insurance company can set up medical assessments. The Rules of Civil Procedure, which dictate how lawsuits are to be conducted, allow specifically for this.
Can I claim punitive damages in an LTD case?: It is common for LTD claimants to feel angry, frustrated, disrespected, and mistreated by the insurer that has denied their benefits. They may feel strongly about suing the insurer not only for the denied benefits but for additional damages intended to ‘punish’ the insurer for harsh, harmful or egregious conduct in the way it has handled the claim. Those additional damages are commonly referred to as ‘punitive damages’.
However, our courts rarely award punitive damages in LTD insurance cases. This is because of laws relating to contracts. Even if they seem wrong, insurer's actions generally do not rise to the level required for punitive damages. Moreover, insurers will rarely, if ever, pay punitive damages as part of a settlement of a long-term disability insurance claim.
If I start a long term disability lawsuit, will I have to go to court?: The majority of lawsuits settle without going to court. Settlements, not court trials, are typically the preferred way to resolve LTD claims, wherever possible, because:
Settlements allow the parties to control the outcome of the case and therefore achieve certainty as to outcome, rather than leaving an uncertain outcome to the courts.
Settlements can be reached at any time, rather than the parties having to await a potentially costly trial that can be many years away.
Settlements remove the risk that the losing party will have to pay the winning party a substantial amount of money in legal costs.
One crucial, but often overlooked, reason for settlements is that they can include money for future LTD benefits. Trial judges cannot force an LTD insurer pay benefits for the future. Rather, judges only have the power to order the payment of past LTD benefits and interest if the insurer is found to have wrongly denied benefits. Judges can also order the reinstatement of LTD benefits based on the contract terms. Those terms typically speak only to current, not future, entitlement for which the claimant must continuously qualify.
How long do I have to file a lawsuit if my long-term disability claim is denied in Ontario?: If your insurance company denies your long-term disability benefits claim, you should immediately talk to a lawyer. Most policies require that you bring your objection to the insurer within 30, 60, or 90 days.
Policies may require that a lawsuit for denial of benefits be commenced within a year of the denial. The provincial limitations statute that applies to long-term disability insurance claims, however, will typically allow you up to two years to sue the insurer from the denial date. To avoid a problem in this regard, it is best to consult with a lawyer as soon as you are notified by your long-term disability insurer that your benefits claim is denied or is being terminated.
Can I appeal a long-term disability denial on my own, or do I need a lawyer?: Yes, you can, but doing so may not be a good idea. When an insurance company denies a claim, it will typically inform you of your right to appeal the decision within the insurance organization itself. You will likely be advised to send to the insurer, at your own expense, further information to support your claim, usually medical documentation.
In most cases, unfortunately, internal appeals do not result in insurance companies reversing their decisions to deny benefits. Moreover, the time required to start a lawsuit may begin to run from the date of the insurer’s initial denial, while you pursue the internal appeal process, which may be prejudicial to your rights in the event that your appeal is unsuccessful. It is for those reasons, and potentially other reasons as well, that we generally will not recommend that you pursue an internal appeal.
What possible remedies do I have if my LTD benefits get denied?: LTD lawyers can pursue different remedies for you. These will depend on your particular situation, the LTD contract terms, and what the law allows.
If your insurer denies your LTD claim at the very outset and you do not receive benefits, it must provide you with reasons. We will need to consider those reasons. The same is true if you received LTD benefits for a period of time and the benefit payments were then terminated.
If we have serious questions or concerns about how and/or why the insurer responded to your claim in the way that it did, we will discuss next steps with you. This includes the possibility that our firm will be retained by you to investigate a potential legal claim.
We will inform you if we believe the insurer had a valid reason to deny the LTD claim. We will also let you know if in our opinion the insurer had a valid reason to discontinue your LTD benefits. We may also try to assist by providing helpful advice about any options you may have.

Are there limitation periods for medical malpractice claims?

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