Negligence is the primary basis of a personal injury claim. In a medical malpractice claim, a plaintiff must show that while receiving treatment from a healthcare professional, there was an act or omission which deviated from the acceptable standard of practice which caused injury or illness to the plaintiff. Medical malpractice lawsuits can range from a delayed diagnosis, failure to refer a patient to a specialist, or a patient receiving substandard medical care and treatment at a hospital.  

However, an indiviudal’s claim for medical errors or negligence can be difficult to articulate and prove. Therefore, working with experienced counsel is important as they can ensure that appropriate supporting medical documentation is obtained to support a claim. 

In part one of a two-part series, this blog will look at the components of a medical malpractice claim and the role that expert evidence plays in informing the court of the appropriate standard of care and establishing that the standard of care has been breached by the medical professional. In part two, we will look at the role of causation and how expert evidence may support the final elements of a medical malpractice claim.

Negligence in Medical Malpractice Claims

In order for a plaintiff to obtain a successful outcome in a negligence claim, they must be able to prove the following four elements:

1. The defendant owed them a duty of care; 
2. The defendant breached that duty of care; 
3. The plaintiff suffered an injury and resulting damages; and 
4. The plaintiff’s injury and damages were caused by the defendant’s breach of the standard of care. 

In a medical malpractice claim, in order for a plaintiff to be entitled to compensation, they must specifically be able to establish that:

1. There was a patient-physician relationship in which the healthcare professional owed the patient a duty of care; 
2. There was an act or omission by the healthcare professional which fell below the standard of care which a similarly qualified professional would reasonably expect; 
3. The patient suffered reasonably foreseeable injuries; 
4. The healthcare professional’s act or omission was the proximate cause of the patient’s injury; and
5. The patient suffered compensable damages.

Standard of Care and Expert Evidence

In the case of Skinner v. Matheson, Justice Topolniski stated that “a trial judge evaluates the standard of care of a professional with the assistance of expert evidence on the standards and practices of that discipline.” In DD v. Wong Estate, the Court held that the determination of a physican’s standard of care “is informed by expert evidence it is not fixed by medical evidence.” 

In Ter Neuzen v. Korn, Justice Sopinka commented that sometimes expert evidence is not required to establish a breach of the standard of care if the trier of fact can determine the issue based on their ordinary common sense. Justice Sopinka went on to state that: 

“It is generally accepted that when a doctor acts in accordance with a recognized and respectable practice of the profession, he or she will not be found to be negligent. This is because courts do not ordinarily have the expertise to tell professionals that they are not behaving appropriately in their field…” 

It is often the case that the plaintiff and defendant will introduce expert witnesses who provide conflicting expert evidence. Therefore, when assessing the weight which the court gives to an expert opinion, Justice Renke in DD v. Wong Estate went on to say that he “may accept all, some, or none” of the witness’s evidence, and may choose to give different weight to various portions. 

Establishing a Breach of the Standard of Care

Actions for medical negligence can create unique challenges for plaintiff’s, particularly when it comes to proving that a healthcare practitioner fell below the acceptable standard of care. Many cases require expert evidence in order to establish what the appropriate standard is. The standard is then measured against the medical professional’s conduct.

If adducing expert evidence, plaintiff’s will be required to retain a medical expert who is similarly qualified and can prepare a report which can outline the standards expected by a prudent healthcare practitioner to establish whether those standards were met. While parties hire experts to assist in their claim, their purpose is not to advocate on behalf of either party, but rather assist the court in understanding issues in a certain area of expertise while remaining impartial and objective. However, in many cases, successful medical malpractice actions often depend on the strength of the expert witness.

Expert Evidence to be Provided by a Professional in Similar Circumstances

In Gayton v. Rinholm, the plaintiff, Ms. Gayton, commenced a medical malpractice action against the defendant, Dr. Rinholm, and three other physicians. Dr. Rinholm provided care to the plaintiff on one occasion as an emergency room doctor at the Medicine Hat Hospital in February 2005. Ms. Gayton provided an expert report on the defendant’s care which was prepared by a psychiatrist who was licensed to practice medicine in New York. 

Dr. Rinholm brought an application for summary judgment to dismiss Ms. Gayton’s claim. In support, he provided an expert report of an emergency physician working in Calgary who was licensed to practice medicine in Alberta, which opined that the defendant’s treatment met the appropriate standard of care of an emergency room physician in Alberta. 

The Court of Queen’s Bench of Alberta found that Ms. Gayton’s expert did not provide any evidence to establish that he had expertise as an emergency room physician in Alberta, which was the standard to which Mr. Rinholmt’s care was to be measured against. Therefore, the Court did not accept his evidence and found that Dr. Rinholm met the appropriate standard of care. The Court allowed Dr. Rinholm’s application and dismissed Ms. Gayton’s action against him. 

Contact Cuming & Gillespie LLP in Calgary for Trusted Advice on Medical Malpractice Claims 

At Cuming & Gillespie LLP, our experienced lawyers are recognized as leaders in medical malpractice law. Deciding whether to commence a claim for medical malpractice can be a difficult decision which requires an analysis of the facts and potential risks and costs. Our team is passionate about helping individuals make an informed decision on whether to proceed with a claim, and we are dedicated to obtaining fair compensation for those who the negligence of medical professionals has impacted. Located in downtown Calgary, our firm provides exceptional representation for clients throughout Alberta. Contact us at 403-571-0555 or reach out to us online to schedule a free confidential consultation regarding your medical malpractice claim.