Obtaining expert evidence in medical malpractice cases is essential. Without it, there’s virtually no hope of success. Even getting your matter to court will be difficult unless you enlist the help of medical malpractice lawyers in Oakville to support your claim.
This reliance on medical malpractice and personal injury experts relates to the inherent complexities of medical malpractice cases. It isn’t easy for anyone who isn’t a medical expert to assess the nuances of complex and often, technical medical information.
Two recent cases illustrate the importance of expert reports in medical malpractice claims, except in the clearest of cases.
Evidence to support claim essential
In Hurst v. Shabib, 2021 ONSC 8342, the plaintiff filed a malpractice claim against two doctors after a medical procedure, but she didn’t provide any expert evidence to support her claim. As a result, the judge relied on expert evidence from the defendants, ultimately deciding there was no reason to move the matter to trial and dismissed the action with costs.
“I find that the absence of expert evidence in support of Ms. Hurst’s medical malpractice claim is fatal, writes Justice R. Ryan Bell for the Ontario Superior Court of Justice. “Without such expert opinion, which I infer that Ms. Hurst is unable to obtain, her action has no hope for success. There is, therefore, no genuine issue that requires a trial.”
Proving negligence in medical malpractice cases is different from other negligence cases, such as a car accident or a slip and fall. In a medical malpractice claim, the necessity for an expert opinion early in the process is an additional hurdle to overcome.
To prove negligence in a medical malpractice case, you need to establish the following:
- the practitioner owed a standard of care to the plaintiff
- the standard of care was breached
- the breach caused the plaintiff’s injuries (often referred to as causation).
If you fail to prove all three, you cannot prove negligence and your case fails.
Did physician breach standard of care?
Experts, who are often doctors in the same specialty as the defendant physician(s), provide their opinion on the standard of care that was supposed to be provided by the physician. The standard of care refers to the degree of care and skill that any reasonable doctor would provide in the circumstances. The standard isn’t perfection. Surgeries and medical procedures inherently carry risks.
Experts also provide an opinion about whether the physician(s) in the case met that standard of care or fell below it. If their opinion is that the doctor fell below the standard of care, they look at whether that breach caused the person’s health problems.
In any medical negligence case, you must prove there was negligence and that the negligence directly led to your injuries — making that connection is the key part. For example, would the failure to order a diagnostic test that detected an illness or disease at an earlier date have changed the outcome for the patient, or would the outcome have been the same regardless of whether the test was ordered promptly by the treating doctor? To be successful, a plaintiff must prove that the doctor’s negligence in failing to request the diagnostic testing directly led to a worse outcome.
Without expert opinion, negligence cannot be proved
In Comer v. Mount Sinai Hospital, 2022 ONSC 1321, Regional Senior Justice M.L. Edwards notes that judges and juries lack the necessary expertise to assess questions about the standard of care, a breach of the standard of care and causation without expert reports. For that reason, the court has stated that, except in the “clearest of cases” expert evidence in support of the plaintiff’s claim is absolutely necessary.
In the Comer matter, the plaintiff sought damages arising out of allegations of medical malpractice relating to a cesarian section. When she asked for an adjournment to obtain expert reports roughly 10 years after the procedure, the court refused and dismissed her action.
Senior Justice M.L. Edwards says “there can be no genuine issue that would require a trial if a Plaintiff claiming medical negligence does not obtain expert opinions to support the allegations laid out in the statement of claim. The expert evidence must establish the standard of care; whether there was a breach of the standard of care, and the breach of the standard of care caused the Plaintiff’s injuries.”
It’s important to note that only a small portion of law firms take on medical malpractice claims. For those that do, it’s key to obtain the medical files in full and retain the proper medical expert early in the process.
Without an expert opinion on the standard of care, negligence cannot be proved. While that can be difficult for some clients to accept, it is a reality of medical malpractice cases. Both Comer and Hurst demonstrate that fact.
Contact us to be your medical malpractice lawyers in Oakville
For more information on the services of medical malpractice lawyers in Oakville, contact Edwards Pollard LLP today online or call (289) 529-0404.