Stages of a Medical Malpractice Lawsuit

Starting the lawsuit

Once the decision has been made that there is merit in pursuing a birth injury claim, the court process starts with filing the lawsuit.

The court process can be complex and unfamiliar to someone who has never been through it before. It is sometimes referred to as the litigation process. Most people will have seen segments or examples of the court process on television and in movies. While some of what you may have seen is an accurate representation of what occurs, the reality is that there are many more steps to the court process than you will see on screen, and a lot of work occurs in between the various steps of the court process. Your BILA lawyer will be very familiar with and experienced in guiding you through your lawsuit.

The trial is one of the last stages of the court process and only occurs if a negotiated settlement of the case cannot be achieved at an earlier stage. Anyone entering the litigation process should be prepared for the possibility of a trial as there is never any guarantee that a case can be resolved simply through negotiation and settlement.  Having said that, BILA lawyers meticulously prepare each and every case with the trial in mind to ensure that the defence appreciates the risks to them of proceeding to trial. In this way, BILA lawyers increase the likelihood of settlement before trial. Where trial is necessary, your BILA lawyer has the training and experience to proceed with the trial.

It is important when starting the court process that you have an understanding of the various steps and an overview of what to expect. Your BILA lawyer will be able to navigate the court process in a way that should bring some ease and understanding for you in what can be a difficult, confusing, and even stressful experience.

The Courts in each province or territory have their own Court Rules that set out specific details on how each step in the litigation process should occur and over what timeframe. There are many similarities in the Court Rules between provinces and territories, but each jurisdiction will have its own subtle differences. For that reason, it is always best to consult with the lawyer in the province in which your baby was born. For the purposes of this chapter, we’ll set out the typical steps in the court process that exist generally across Canada throughout the various jurisdictions.

Statement of Claim

Pursuing a lawsuit starts with the filing of a formal court document that names the parties to the lawsuit and sets out the basic allegations, or material facts, about what occurred. It also offers a description of the various types of damages being sought against the parties being sued. This initiating document is usually referred to as a Statement of Claim or Notice of Civil Claim, depending on the jurisdiction.

In the Statement of Claim, you are seeking damages and are known as the plaintiffs. The parties being sued (e.g., doctors, nurses, hospitals, midwives) and contesting the claim for damages are known as the defendants.

In birth injury claims, given that the person who has suffered the injuries  is a minor under the age of 18 and likely has a disability, the claim will usually need to be commenced through a litigation guardian(s). A ligation guardian is essentially someone who will act in the interests of the infant plaintiff in pursuing the claim, making decisions and giving instructions in respect of the claim on their behalf. In most cases, this would typically be the parents or other legal guardian of the child.

Statement of Defence

Once served with the Statement of Claim, the defendants will then have a period of time, which will be specified in the Court Rules or through agreement of counsel, to file with the court a written response to the claim in a document known as a Statement of Defence or Response to Civil Claim, depending on the jurisdiction. Similar to the claim, this defence or response will set out the basic responses of the defendants to the allegations made by the plaintiffs in their claim.

The Discovery Stage

After the Statement of Claim and Statements of Defence have been delivered, the next significant step in the litigation process is usually referred to as the discovery stage. The purpose of this stage is to allow the parties in the case to obtain a greater understanding of the facts and details of the opposing party’s case through the disclosure and discovery of documents and testimony. This allows each side the opportunity to better understand and assess the opposing side’s case, to know what case they must answer to at trial, and to promote the possibility of settlement through the disclosure of evidence. This is done through direct questioning of the parties by opposing lawyers and through disclosing relevant documents.

There are generally two parts to the discovery stage in a court proceeding. The first involves documentary discovery, in which the parties compile a list of all of the relevant documents that they have in their possession, power, or control. This list of documents is known in most jurisdictions as an Affidavit of Documents as the party will attach the list of documents to a sworn Affidavit confirming that the list is a full and proper description of all such documents in their possession, power, or control.

In a birth injury case, such relevant documents will usually include the medical charts and records concerning the infant plaintiff, starting from the time of the incident in question up to present date. It will also usually include other documents such as therapy, counselling, or school records, as well as documents related to the caregivers and their circumstances. Documents to be disclosed include the medical records of the mom and any other records that might be relevant to the claims being made (e.g.,, tax returns, employment records, insurance policies).

It should also be noted that evidence disclosed in the discovery phase is protected by a principle known as the implied undertaking rule. This rule prevents an opposing party from using evidence disclosed in the discovery phase for anything other than the specific litigation.

The second aspect of the discovery stage is generally known as examinations for discovery or questioning. Examinations for discovery are a vitally important part of a birth injury lawsuit. It is part of the discovery stage, in which the lawyers may ask questions and seek answers under oath from the opposing parties to the case. This questioning typically takes place  in a boardroom with a court reporter or stenographer present to transcribe what is said. Counsel for the party being examined is present with their client and has the right to object to any questions asked by opposing counsel that are irrelevant or otherwise inappropriate for discovery. There is no judge present and, as a result, usually occurs in a slightly more informal manner than how evidence might be presented at trial.

The purpose of an examination for discovery is to allow each party to better understand the evidence of the opposing party’s case and to seek admissions of facts and evidence of the case. In a birth injury case, counsel for the plaintiffs would have the opportunity to ask questions of each doctor or nurse named as a defendant in the claim. Conversely, counsel for the defendants would be entitled to question the adult plaintiffs, usually the parents or other guardian or caregiver, about their recollection of events that led to the injuries, as well as questions relevant to the claim for compensation and damages.

An examination for discovery can take several hours (or even days), depending on the facts and complexity of the case. It is important that you spend time with your lawyer in advance of examinations for discovery to prepare you so that you may know what to expect in the form of possible questions from opposing counsel.

The examinations for discovery are an important step in the litigation process as it is an opportunity for each side to learn many specific factual details of the opposing side’s case. It allows counsel to further assess the evidence of the case and even allows them to assess how the person being examined may present as a witness at trial. It aids counsel for the parties in assessing the relative strengths and weaknesses of the claim or defence, and, therefore, can play an important part in influencing settlement of a case.

Expert Reports

Another important step in the litigation process of a birth injury claim, involves obtaining and providing expert reports that set out the expert opinion evidence relied upon by each side. As already discussed, an important aspect of any birth injury malpractice case comes from obtaining and relying upon experts who provide opinions on various medical issues and damages issues relevant to the case. As part of the litigation process, the parties will need to disclose written reports that set out the details of the expert opinions they would rely upon at trial. Each jurisdiction will have its own specific Court Rules governing the form, content, and timing of such written expert reports.

Pre-Trial Conferences with a Judge

Generally, once the discovery stage is complete, the court process will require counsel for the parties to meet with a Judge from the Court to discuss the status of the litigation. Such meetings will have different names depending on the Court’s jurisdiction, but are often referred to as pre-trial conferences or case management conferences.

The judge at such conferences will discuss the issues and facts of the case with counsel often with a view to determining if there is any possibility of a settlement or if the case needs to proceed to a trial to be decided.


In some jurisdictions, there is a mandatory mediation process required of the parties to see if they can reach an agreement for a settlement. Even without a requirement for mediation, it is also open to the parties to voluntarily agree to use mediation to discuss and seek a settlement to the case.

The purpose of mediation is to involve the services of a trained third party, called the mediator, who facilitates a discussion of settlement between the parties. In some jurisdictions, the mediator can be a Judge of the Court who will act as a mediator for the parties. In those instances, the judge that acts as a mediator would not act as the judge at the trial of the matter if it did not settle through the mediation process. Whether the parties can reach a settlement of the claim through discussions at a pre-trial, case conference, or mediation depends on the willingness of the each party to negotiate and try to reach an agreement without the necessity of a trial.

The value of a settlement is often measured by how each party views the strengths and weaknesses of their case and their willingness to negotiate and seek a compromised resolution of it.


If the parties cannot achieve a settlement of the case, either through their own negotiations or through the assistance of a mediator or judge, the case will proceed to a trial for determination. A trial is the formal court proceeding where evidence, both documentary and oral testimony from witnesses, is presented to a judge or jury who will then make a decision of whether the claim succeeds, and, if so, what damages should be paid to the plaintiffs by the defendants.

In some jurisdictions a birth trauma case may be tried in front of a jury of six people. This occurs only rarely, usually because it is thought by many lawyers that these cases are too complex for a jury of lay people. On the other hand, some lawyers feel that juries are adequately equipped to handle cases of this nature.

In birth injury cases, trials usually last several weeks to months. Given their complex nature, there will often be many witnesses that are required to give oral testimony to the Court and volumes of documents to present.

A trial will usually proceed with the plaintiffs going first to present their evidence in support of their case. This will include calling each of their witnesses to give testimony to the judge or jury. Typically the parents and other family of the infant plaintiff will be called as witnesses to give their recollection of events and to provide information and descriptions of the plaintiff’s injuries. There may be other witnesses called such as treating doctors and other care-givers and therapists. Witnesses will also include the various experts retained on the case by plaintiffs’ counsel to provide their opinion evidence to the court.

The counsel calling the witness to the stand to give testimony will question them in what is known as a direct examination. Counsel for the opposing party is then entitled to cross-examine the witness in an attempt challenge or impugn the witness’ evidence.

In a birth injury malpractice case, some of the most important witnesses will be the expert witnesses called by both parties. Typically, there will be several expert witnesses called by each party at a birth injury trial—therefore, the evidence of these various experts can take many days or weeks to present.

Once the plaintiffs have presented all their evidence, the defendants will be given their opportunity to lead their own evidence, including calling their witnesses and filing any additional documents they wish to place into evidence. Your lawyer will have the opportunity to cross-examine each witness called to testify by the defence.

Once all of the witnesses have been called and all of the evidence has been presented, counsel for the parties will be entitled to summarize their facts and arguments to the judge or jury, in what is known as the closing arguments or submissions.

The judge or jury is then tasked with making a decision as to who wins or loses the case and assessing the quantum of damages being sought. Where the case is tried by a judge, he or she will often take time, sometimes several weeks or several months, to reflect on the evidence and argument of the parties at trial before rendering his or her decision. This is known as the Court reserving judgment. The judge will then usually issue his or her decision by way of written reasons that detail the basis for the decision, including the facts and legal arguments that were accepted and relied upon by the judge in reaching that decision.


In some instances, the decision of the judge following trial may still not be the end of the court process. The unsuccessful party has a right to appeal the decision of the trial judge to the Court of Appeal in the jurisdiction where the claim was filed.

An appeal is usually heard by a panel of three Appellate Judges, and the hearing consists of legal argument by counsel. Generally, no new evidence or testimony is permitted to be given to the Court of Appeal on an appeal, unless special permission is granted.

From a Court of Appeal decision, an unsuccessful party’s only means of further challenge to the decision is to seek leave to appeal to the Supreme Court of Canada, the highest level of court in our country. Seeking leave means the party wishing to appeal must first obtain permission from the Supreme Court to pursue such a further appeal. The Supreme Court of Canada rarely grants leave to appeal, as it generally only hears a limited number of cases and looks to consider issues that may be of general or wider public importance.


The court process can be a lengthy one, especially as birth injury cases are complex and involve many medical issues, damages issues, experts, and medical charts and records. There are many stages and aspects to a lawsuit that require a great deal of work, strategy, preparation, and skill. The guidance of a skilled litigation counsel with experience in birth injury cases is therefore crucial for navigating the court process.