Medical malpractice lawyers: What is a breach of duty of care?

Medical Malpractice Lawyers: What is a Breach of Duty of Care?

What defines a breach of duty of care? When a person’s negligence leads to another individual sustaining an injury, the victim can claim compensation against the negligent person. The main aspect of negligence claims involves the duty of care. At Sommers Roth & Elmaleh, our medical malpractice lawyers can help you determine if this has been breached.

Claiming Negligence

Using evidence, the injured person and their lawyer must establish that negligence has occurred. Typical factors in successfully arguing the case are that there was a duty of care owed to the plaintiff from the defendant, that it was breached, and the plaintiff received injuries or damages. 

What is a Duty of Care?

Defendants will owe a duty of care when it was reasonably foreseeable that the defendant’s actions or omissions caused harm to the plaintiff. A duty of care arises when there is an existing relationship between the parties. 

Examples of duty of care are:

  • Drivers are responsible for adhering to regulations for safe driving. They owe others on the road, such as pedestrians and cyclists, a duty of care.

  • Healthcare professionals owe a duty of care to their patients. 

  • Business owners owe customers a duty of care while on their premises.

How to Establish Successful Claims

The “onus” in successfully proving your case involves establishing a baseline. This baseline is what a “normal” healthcare professional with the same accreditation and the same experience would have done under the circumstances. These factors can include a range of possibilities. 

In making a successful case, you must establish how the professional demonstrated negligence. The provider’s actions are compared to the baseline in order to determine whether malpractice did or did not occur.

Breach of Duty of Care

Medical professionals can and do make mistakes. However, just because an error was made doesn’t mean it was malpractice. For example, you visit a doctor’s office complaining that you feel like you have the flu and have bouts of diarrhea. You say that, occasionally, there is a bit of blood when you wipe.

Your doctor then notes that there is a history of hemorrhoids and prescribes medication. They assume that the symptoms presented are the cause. 

However, you failed to tell them that this has been happening for months. You also failed to mention that you have been rapidly losing weight, as well as any other pertinent information that would lead to a proper diagnosis. Is the doctor at fault?

The answer is: probably not. The provider went by your medical history and the information provided. If you receive a cancer diagnosis down the road, the physician may not be considered liable. They offered reasonable care based on the information they had available.

Now, things may be different if you had stated all the facts and were concerned you had cancer. Based on the facts, a regular physician would order tests because of several red flags. 

If you prove that they should have but didn’t provide proper care or ignored requests, then you may be able to prove negligence. A negligence case would be valid if testing by another doctor proved the existence of a cancer diagnosis. Not conducting further testing based on presenting symptoms can confirm a breach of the duty of care.

General Standards of Care

As mentioned, courts use a baseline for assessments if a noted standard of care is absent. People should provide the same quality of care that an ordinary individual would undertake in a similar situation. Plaintiffs must prove that the defendant failed to provide reasonable care while fulfilling their duty.

To successfully establish your case, you must prove that the person fell below the standard of care associated with a competent and prudent provider with the same training operating in the same conditions. However, the standard of care does not involve perfection. Given the circumstances, healthcare professionals are not held liable if their actions are reasonable. 

Damage and Injuries

Plaintiffs must show that they have sustained injuries, loss, and damage resulting from the defendant’s negligence. There must be a negative result. There have been situations where there was no injury despite the healthcare professional’s negligence. Without an injury, a plaintiff cannot successfully establish negligence.


The final component to successfully establishing your case is showing that the professional’s conduct generated losses, injuries, and damages. You must prove that if they had not been negligent, there would have been a better outcome. It would help if you can verify that an injury would not have happened, or the result wouldn’t have been as significant.

Medical malpractice lawyers will call this establishing causation. However, it is a very complex issue to prove.

If you have sustained injuries and can prove the elements of negligence, then you may be entitled to compensation.

Do I Have Enough Evidence to Successfully Argue a Case?

The first step is to contact a medical malpractice lawyer. Before you do, though, you must gather evidence, medical documents supporting your case, and witnesses, if possible. Again, the burden of proof results in clearly establishing that negligence existed. You will need to prove the elements outlined above.

Our team of legal professionals will examine your case and determine if you have grounds to receive compensation. We specialize in handling medical malpractice cases and can inform you whether you have a solid chance of success. We may advise you to obtain supporting documentation and will help you do so. We can then guide you through the legal process.

At Sommers Roth & Elmaleh, medical malpractice suits are our specialty. We have over 40 years of trial experience and have a high success rate compared to other law firms. We will guide you through a difficult time in your life to enable you to move forward. 

Please book your free consultation by contacting our team of legal professionals at 1-844-940-2386 or visiting our website here.

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The information on this page is provided for general information purposes only. It should not be construed as legal advice. It does not constitute legal or other professional advice or an opinion of any kind. Readers should seek specific legal advice regarding any specific legal issues. We do not in any way guarantee or warrant the accuracy, completeness or quality of the information on this page. The posts on this page are current as of their original date of publication, but they should not be relied upon as timely, accurate or fit for any particular purpose.

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    If you have been affected by medical malpractice anywhere in Canada contact us for a free consultation.
    You pay us nothing unless we win.

    A lawyer from Sommers Roth & Elmaleh will be in touch with you as soon as possible. Please note that no lawyer-client, advisory, or fiduciary relationship is created by your inquiry. All information provided is confidential.

    The above information is not legal advice. Past results of cases and recoveries by our medical malpractice lawyers against hospitals, doctors, midwives, nurses and other healthcare professionals are not necessarily indicative of future results. The amounts recovered and other litigation outcomes will vary according to the facts in individual cases.

    Hilt this Tamrate
    Hilt this Tamrate
    23 May 2023
    Dear Mr Hilik Y. And Jeremy Syrtash. I would like to express my deepest gratitude to you and Sommers Roth and Elmaleh Professional Corporation staff for all you have done with respect to my wife case. My wife was a victim of Medical Malpractice after giving birth to our daughter. She become legally disabled both physically and mentally. The entire family devastated emotionally as my wife struggle to cope with the new reality. The case of Medical Malpractice is quite often a complex case to prove. However, due to your strong commitment, knowledge and dedication combined with strong professionalism the case was successfully won after a long arduous fight. The victory would not have been possible without your dedication and thorough research in the implementation of the standards of the Sommers Roth and Elmaleh Professional Corporation. Justice prevailed at last which in turn allowed my vulnerable wife to feel more optimistic about her future and that of our family. The positive outcome of this case has changed our lives forever. It would not have been possible without the excellent representation of Sommers Roth and Elmaleh Professional Corporation and its legal counsel. My wife and I will be deeply grateful for the successful outcome of this case for many years to come. Solomon Regassa
    Hector Cardenas
    Hector Cardenas
    4 January 2023
    I would like to take this opportunity to express my most sincere gratitude towards Sommers Roth & Elmaleh, from the day I met with Hilik and his team, they been not only highly knowledgeable but also extremely sensitive towards me and my family, providing us with the best legal service possible. It goes without saying, that I strongly recommend them to anyone looking for a charismatic, quality and result oriented legal team.
    10 October 2022
    We deeply appreciate Sommers Roth & Elmaleh for their professional skills and hard-working through the whole process of my son’s case. I still remember the first conversation we took with Mr. Hilik Y Elmaleh in his lawyer office sixteen years ago. From then on, your dedication, patience, understanding and continuous communications kept our encouragements and expectations for my son and our family. With the case settled down, my son can receive the full financial support, continuous therapies and finishing his university course. It is no doubt to say that Sommers Roth & Elmaleh not only changed our family’s life but also did contributions to the society, because my son can grow in a happy and health way in his teenage and receive university education from this autumn. Again we hereby strongly recommend the services provided by the lawyer office Sommers Roth & Elmaleh to those who needs the similar legal consultation and support. Even the door of your family was closed by some unfortunate events, there are more windows can be opened. The lawyers in Sommers Roth & Elmaleh are exactly the people who can open the windows and convert the sun-shine again to your family: Mr. Hilik Y Elmaleh,Mr.Jeremy Syrtash, Miss Fanny Peter ...etc. Finally, we express the deepest gratitude and appreciation again to Mr. Hilik Y Elmaleh and lawyer office Sommers Roth & Elmaleh. Wish a brighter future of Sommers Roth & Elmaleh !
    Meggie Zhangkrk6hdjybfjt
    Meggie Zhangkrk6hdjybfjt
    6 October 2022
    I am so glad that my son's CP medical case was completely successful. I appreciate lawyer Hilik Elmaleh, Jeremy Syrtash, Fanny Peter and their team's hard work. They are so knowledgeable, responsible and reliable. Thanks is not enough to express my gratitude. Mr. Hilik Elmaleh deserves "The Best Lawyer in Canada" award.
    Tony Zhou
    Tony Zhou
    29 September 2022
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    Dianne Keckes
    Dianne Keckes
    18 July 2022
    I would like to take this opportunity to thank our daughter's "Dream Team", Hilik Elmaleh, Jeremy Syrtash and Fanny Peter. The compassion, dedication, knowledge, experience and their recognition in the legal community have ensured us that we were on the right track working with the firm Sommers, Roth and Elmaleh. Words cannot express enough my gratitude! I will be forever grateful!
    Ivica J Sokic
    Ivica J Sokic
    6 June 2022
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    Arden Melnechuk
    Arden Melnechuk
    1 December 2021
    I was in a serious horse accident where the horse was injured and should never have been ridden. The owner of the horse was aware that the horse had chronic arthritis issues and the veterinarians at Guelph had told him the horse could decompensate at any time and could cause serious injury whether being led or ridden and could never be jumped again. The horse had been shown at the grand prix level and the owner had payed quite a bit of money for him. After consulting with several lawyers and having one that did represent me at the discoveries who later quit, Jeremy Syrtash took on the case and followed through with guelph university. That is how we found out that the vets had recommended the above. Without Jeremy's efforts and follow through the case would never have continued on. Because of these efforts the case was successful. Thank you so much Jeremy. You are a dedicated, thorough, excellent lawyer and it's been a pleasure to have you as my lawyer!!
    Megha Sharma
    Megha Sharma
    16 April 2021
    Mr. Elmaleh and his team are very professional and experts in their field. Recommend to everyone who has suffered medical negligence.
    Nick & Whitney Maraschiello-Basnett
    Nick & Whitney Maraschiello-Basnett
    18 July 2020
    We want to start by saying how much we highly recommend Sommers, Roth and Elmaleh for anyone who is dealing with a situation involving medical malpractice. Hilik and the entire firm have allowed us the opportunity to give our little girl the life she deserves. There is no taking back what happened, but they truly turned such a tragedy into a victory. They fought long and hard, and put forth so much time and effort into making the individuals accountable and responsible for the mistakes that were made. They always showed true compassion for our family, guided us with ease, and supported us through every step. This was such a life changing experience with the firm, and honestly we will always be forever grateful and thankful.