In a medical malpractice claim, once a plaintiff has established that a medical professional performed an act or omission has failed to meet the applicable standard of care owed to the patient, the following steps are to prove that the behaviour caused the plaintiff to suffer illness or injury, and determining the appropriate compensation for those damages. 

In Part 1 of this series, we wrote about the importance of expert evidence in medical malpractice claims as it relates to the first two elements of a negligence claim, including establishing the standard of care and proving that a medical professional has breached the standard of care owed to a patient. Part 2 of this series will review the principles and case law regarding the impact that expert evidence can have on establishing causation and supporting compensable damages suffered by the patient. 

Proving Causation and Practical Considerations

While much of the focus around medical malpractice litigation is in relation to proving the defendant breached the standard of care, the plaintiff must go further to establish a causal link between the breach and the harm suffered by the plaintiff. 

Proving that a medical professional’s breach of the standard of care caused the plaintiff’s injuries can turn on technical, medical matters. Since a plaintiff can only recover damages and losses contributed to, or caused by, the defendant, expert evidence is often required to establish that, but for the medical professional’s conduct, the loss or injury would not have occurred. 

In medical malpractice claims, factors such as underlying conditions and pre-existing medical issues, general procedural risks, and post-operative complications can increase difficulty in establishing a causal link between medical negligence and a plaintiff’s injuries. For example, a plaintiff must show that the negligent event caused a significant change to a pre-existing injury’s pain, function or disability. 

Onus of Proof

In a personal injury claim, the burden of proof is on the plaintiff to provide sufficient evidence to satisfy the court that, based on a balance of probabilities “but for ” the defendant’s act or omission, the injury or damage would not have occurred. The court will make this determination based on the facts. The “but for” test from the case of Resurface Corporation v. Hanke has a general application in negligence claims. The Supreme Court of Canada confirmed that courts must take a “robust and pragmatic” approach when assessing the evidence presented. 

A defendant in a medical malpractice claim will often provide expert evidence that the plaintiff’s injuries would have occurred regardless of the defendant’s conduct. Therefore, if a plaintiff does not adduce sufficient evidence to support their position, their claim may be dismissed. 

In Snell v. Farrell, the Supreme Court of Canada held that the test for causation does not demand exact scientific precision as there is a difference between medical and legal causation. The Court stated that “​​[m]edical experts ordinarily determine causation in terms of certainties whereas a lesser standard is demanded by law.” The Court went on to state the following regarding the issue of causation:

… Causation need not be determined with scientific precision. In many malpractice cases, the facts lie particularly within the knowledge of the defendant, and very little affirmative evidence on the part of the plaintiff will justify the drawing of an inference of causation in the absence of evidence to the contrary.”

Limitation Periods 

The Supreme Court of Canada in Grant Thornton LLP v. New Brunswick found that the discovery of a claim occurs when “a plaintiff has the knowledge, actual or constructive, of the material facts on which a plausible inference of liability on the defendant’s part can be drawn.” 

In Alberta, section 3(1)(a) of the Limitations Act prescribes a two-year limitation period during which a plaintiff may commence an action from when the claim is discovered. However, under section 3(1)(b) of the Limitations Act, there is a cap of ten years known as the ultimate limitation period, after which the matter will become statute-barred. Therefore, it is important for plaintiffs to seek guidance from a medical malpractice lawyer as soon as they believe they may have a claim to ensure they do not miss a critical limitation period. 

Complexities can arise when determining when the plaintiff became aware of the claim, as a patient may not immediately be aware of the harm or injury they have suffered. A plaintiff can have knowledge of material facts without understanding the merits of the potential action. 

Geography Does Not Impact Causation Element

In Grivicic v. Alberta Health Services (Tim Baker Cancer Centre), the Alberta Court of Appeal held that, while there is no rule preventing a plaintiff from retaining an expert outside of Canada to establish causation, the plaintiff is still required to prove that the retained expert reports are still relevant to the unique facts and circumstances of the case. In this case, the appellant retained two American physicians as experts to support her claim, which occurred in Alberta. However, the Court was entitled to infer that the plaintiff did not retain a Canadian expert because a Canadian physician would likely not support her position. 

Assessing Damages in Medical Malpractice Claims

The assessment of damages in a medical negligence claim can be an evolving process as evidence regarding the diagnosis and extent of a plaintiff’s injuries develop throughout a case. 

General damages for pain and suffering are qualitative. They will be assessed based on the plaintiff’s evidence, medical reports and expert evidence used to establish causation and predict future implications of the injury or illness. Pecuniary damages, including income loss, loss of earning capacity and care costs, can be monetarily measured and rely on expert evidence and past performance to attempt to place the plaintiff in the position they would have been in had the medical negligence not occurred. 

Punitive damages are intended to punish the defendant for malicious and oppressive conduct and are rarely awarded in claims for medical negligence. Aggravated damages are intended to be compensatory but are not often awarded in medical malpractice actions like punitive damages. For instance, aggravated damages may be considered if the defendant’s conduct caused the plaintiff to experience significant mental distress. 

Cuming & Gillespie LLP’s experienced team of medical malpractice lawyers provides tailored advice based on each client’s specific needs. We work with clients to ensure that they can prioritize their health while our lawyers advocate obtaining the best possible compensation. Conveniently located in Calgary, our firm provides exceptional representation for clients in Calgary, Edmonton, and throughout Alberta. To speak with a member of our team or book a confidential consultation, call us at 403-571-0555 or contact us online.