Do I Have a Medical Malpractice Case in Alberta?

The 5 things that must be true before a lawsuit can advance 

Medical malpractice claims are a complex area of law requiring a dedicated and experienced legal team. Cases often take several years to resolve, and success is not guaranteed. The risk of going to trial is significantly higher than in other types of injury cases, and not every lawyer will be able to dedicate the time and resources to advance your case to trial. 

It is essential to understand that not every injury sustained in a care setting constitutes malpractice. Medicine is not a perfect science and is constantly adapting and evolving as our understanding of the human body and technology advances. 

You may have a viable malpractice claim in Alberta if all five of the following are true: 

1. Duty of care – A provider or hospital owed you a legal duty (this is usually straightforward once care is undertaken). 
2. Breach of the standard of care – The provider fell below what a reasonably competent professional would have done at the time, not with hindsight. 
3. Causation – The breach caused or materially contributed to the injury.
4. Compensable damages – You suffered losses a court can award (pain and suffering, income loss, care costs).
5. Timelines – You’re inside Alberta’s 2-year limitation period (from the date of discovery) and the 10-year ultimate limitation period. (Please note that these timelines do not always apply in cases involving a minor.) [we should probably include something linking to the birth injury page here]. 

If any one of these fails, you do not have a malpractice claim – even if your experience was disappointing or resulted in a serious injury. 

1) Duty of care: usually the easy part 

Once a provider agrees to assess or treat you, a legal duty of care is typically established. Hospitals also owe institutional duties and may be vicariously liable for negligent acts of their employees (e.g., nurses). In Canada, many attending physicians hold independent contractor status, so hospitals are not typically vicariously liable for their negligence. 

2) Standard of care: “reasonable,” not “perfect” 

Courts compare what was done with what a reasonably competent practitioner would have done in the same circumstances, recognizing that more than one acceptable approach may exist. The conduct of a medical practitioner is judged by the information and resources available to that practitioner at the time of the injury. In almost all cases, you will require an independent expert to comment on whether an act or omission of the practitioner breached the standard of care. As described above, unfortunately, serious complications can and do occur due to the inherent limitations of medical science. If the risk of such complications were disclosed as part of the informed consent process, there is likely no claim. 

Informed consent is part of the standard 

Providers must disclose material risks, alternatives, and likely outcomes a reasonable person in the patient’s position would want to know. A poor outcome does not necessarily mean that a medical provider was negligent, but it may suggest a breach where the circumstantial evidence justifies it. Even if consent was not explicitly provided, if the claimant would have consented in the circumstances, consent may be inferred. 

3) Causation: connecting breach to injury 

Even if care fell below the standard, you must prove the negligence caused your harm on a balance of probabilities (more likely than not). You must be able to show that the negligent act either caused or materially contributed to the injury. 

4) Damages: what courts can award 

If liability can be established, the court assesses: 

Nonpecuniary (“pain and suffering”) losses – All losses for pain and suffering are subject to a “cap” set by the Supreme Court at $100,000 in 1978 and indexed to inflation since; the cap today fluctuates monthly (approximately $470,000 as of 2025). Awards at the cap are reserved for the most severe cases, like permanent quadriplegia. The severity of your injury and its impact on your life will dictate the award. The more severe the injury, the higher the award (capped at $470,000) and vice versa. 

Pecuniary losses – Past/future income loss, cost of future care, and out-of-pocket expenses. 

Medical malpractice lawsuits are expensive and time-consuming. Unless you are prepared to pay lawyers’ fees up front, lawyers will typically only consider taking a medical malpractice case on a contingency fee basis if you have sustained a serious permanent injury or loss that you must now live with or cope with for the rest of your life. 

Even if you have sustained a serious permanent injury, while not true in every case, lawyers may ask for an up-front fee to retain a medical expert to assess whether there is a viable claim. These reports may cost hundreds to thousands of dollars. 

As a result, temporary but resolved injuries are typically cost-prohibitive to pursue; however, they may still warrant a complaint to the College (see below). 

5) Limitation periods in Alberta: the 2/10 rule 

Under Alberta’s Limitations Act (RSA 2000, c L12): 

• Two years from discoverability (when you knew or ought to have known about a claim) and 

• An ultimate 10-year deadline from when the claim arose, whichever comes first (subject to specific suspensions and exceptions). 

Please note that the limitation period begins for minors when they reach the age of 18. 

Don’t wait on regulatory processes: College complaints do not stop the clock. If you’re near a deadline, seek legal advice immediately. 

Lawsuit or College complaint? 

A College complaint (e.g., to the College of Physicians & Surgeons of Alberta, CPSA) addresses professional conduct and competence—it can lead to education, restrictions, or discipline—but it does not award financial compensation. If you want compensation, that’s a civil claim. You also do not need to wait for the CPSA process to be completed before initiating a lawsuit. 

Consider a CPSA complaint when: 

• The issue is primarily professionalism, communication, or recurring quality concerns without compensable injury. 

• You want your complaint addressed quickly and promptly 

• You want the regulator to review standards, coaching, or discipline—but not damages. 

• You do not have a viable malpractice claim because you cannot satisfy all five of the required elements of a malpractice claim. 

Consider a lawsuit when: 

• You have satisfied all five of the above criteria 

• You have sustained a serious permanent injury that you must live with for the rest of your life 

• You understand that cases may take years to resolve 

• You understand that not all cases will be successful 

• You understand that just because you suffered a complication or injury, this is not itself enough to establish whether a claim is valid. 

Evidence that strengthens (or sinks) a case 

• Complete medical records: hospital chart, medication administration records, labs, imaging, consent forms. 

• A clear timeline: who did what, when, and what was said. 

• Expert opinions: almost always required in medical cases to prove the standard of care and causation. 

• Loss documentation: tax returns, employment records, receipts, caregiver logs, rehabilitation plans. 

What isn’t malpractice? 

• A bad outcome despite reasonable care. 

• A known complication that occurs after proper care and informed consent. 
• System strain or wait times unless tied to a specific negligent act/omission that caused your injury.