What are the elements of a medical malpractice claim?
British Columbia, Canada
The following excerpt is from Grudzien v. Hu, 2013 BCSC 720 (CanLII):
The onus is on the defendant to prove that the plaintiff could have avoided all or a portion of his loss. In a personal injury case, the defendant must prove two things: 1. That the plaintiff acted unreasonably in failing to pursue a course of medical treatment recommended to him by doctors; and 2. The extent to which, if any, the plaintiff’s damages would have been reduced had he acted reasonably: Chui v. Chui, 2002 BCCA 618, at para. 57.
In order to prove a failure to mitigate, the defendant must do more than show that the plaintiff failed to engage in treatment that could or might have been beneficial: Gregory v. Insurance Corporation of British Columbia, 2011 BCCA 144, at para. 56.
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