The successful prosecution of a medical malpractice lawsuit is challenging even for lawyers experienced in this complex area of the law. Given the high cost of litigation, it is typically only through contingency fee agreements that patients can afford representation. However, most experienced medical malpractice lawyers will be cautious in offering such agreements to only those plaintiffs who have the largest claims with the greatest prospects of success.
The result is that some litigants who believe they have a meritorious claim (despite perhaps being told otherwise by legal counsel) may pursue a lawsuit on their own. Litigants who chose to represent themselves are called self-represented litigants. Certainly for simple disputes it may make economic sense to represent oneself. For medical malpractice claims, however, the results are uniformly disastrous as the following reported decisions from 2023 reveal.
SELF-REPRESENTED LITIGANT DOES NOT UNDERSTAND THEIR LEGAL BURDEN
In Trim v Braun, 2023 ABCJ 242 (CanLII), the self-represented plaintiff commenced three actions all alleging the negligence of medical practitioners and the vicarious liability of the staff and facilities of the hospitals.
With respect to the first action, the plaintiff underwent root canal treatments and subsequently complained of right lower jaw pain. The plaintiff suggested to the doctor that she needed to go for a bone scan, but the doctor refused and prescribed the plaintiff antibiotics then discharged her. The plaintiff continued to complain of right lower jaw pain from the root canal, and the antibiotics did not help.
With respect to the second action, the plaintiff attended ER and complained that the pain in the right side of her jaw worsened. She requested further blood work to check for an infection. She told the doctor that she had a bone infection and needed to go for a bone scan.
With respect to the third action, the plaintiff went to the ER and had her right lower molar extracted the same day. She presented with right lower jaw pain and complained of an ongoing dental infection. She wanted to be prescribed IV antibiotics, but the doctor diagnosed her with TMJ disorder – a diagnosis that the plaintiff disagreed with.
Between May 30 and July 19, 2018, the plaintiff presented to three different hospitals, complaining of jaw pain each time. All three doctors concluded that a bone scan as requested by plaintiff was not warranted, and she was placed on antibiotics.
During this time, the dentist extracted molars 46 and 47 to address the pain, without success. On July 26, 2018, a fourth doctor eventually ordered a bone scan, which identified a bone infection. The plaintiff was placed on IV antibiotics for 8 weeks. The IV antibiotics eventually resolved the bone infection and largely resolved the plaintiff’s jaw pain. However, the plaintiff alleged that she ought to have been referred for a bone scan as early as May 30, 2018, or subsequently on June 19 or June 24 or July 19, 2018. She alleged that she endured two months of severe jaw pain as a result of not being sent for a bone scan as early as May 30, 2018, and that she unnecessarily had molars 46 and 47 removed during that period to address her jaw pain and now she endures dry sockets where her molars had been removed. The plaintiff claimed $50,000 in general damages in each of the three actions.
The defendants brought applications for summary dismissal of the plaintiff’s claims against them. The plaintiff did not provide expert reports pursuant to the requirements of the case management orders regarding disclosure of expert reports and qualifications, despite having been given extensions of time. She provided a one-page letter from a doctor which opined that “it appears [that the plaintiff] did not receive the best possible medical care available as quickly as possible”. The court concluded that the letter did not meet the requirements of an expert report. Not only was it provided after the deadlines and extended deadlines, but it did not provide information about the qualifications of the opining doctor or specify the factual background relied on for any “opinion”. It also did not address the standard of care of either a doctor or the hospital defendants.
In most professional liability claims, expert evidence will be required to establish a breach of the standard of care by the professional, with two exceptions: (1) when it is possible to reliably determine a standard of care in the absence of expert evidence where the court is faced with non-technical matters or of which an ordinary person may be expected to have knowledge and (2) where the actions of the professional are so egregious that it is obvious that their conduct has fallen short of the standard of care, even without precisely knowing the parameters of that standard.
The burden of proof is on the respondent to an application for summary judgement in a medical malpractice action. The four-part test to be considered for summary disposition is as follows:
1. Is it possible to fairly resolve the dispute on a summary basis, or do uncertainties in the facts, the record or the law reveal a genuine issue requiring a trial?
2. Has the moving party met the burden on it to show that there is either no merit or no defence in the respondent’s position and that there is no genuine issue requiring a trial?
3. If the moving party has met its burden, the resisting party must put its best foot forward and demonstrate that there is a genuine issue requiring a trial.
4. The presiding judge must be left with sufficient confidence in the state of the record, that is the facts, evidence, and law, to exercise judicial discretion and summarily resolve the dispute.
The defendants, the applicants of this summary dismissal application, initially established that there was no merit to the plaintiff’s claim and that there was no genuine issue requiring trial. The defendants provided affidavits that opined that the standard of care was met. Since the defendant met this burden, the burden then fell on the plaintiff to demonstrate that there is a genuine issue requiring trial.
The decision of whether to order a bone scan in any given circumstance is not one about which an ordinary person can be expected to have knowledge. Nor was the conduct of the doctor so egregious that it was obvious that he did not meet the required standard of care. The need for expert evidence was obvious.
The judge stated that the test is not whether the plaintiff received the best possible medical care, but whether she received care that met the appropriate standard of care expected of doctors, nurses or staff in the hospital facilities. Therefore, the plaintiff failed to demonstrate that there is a genuine issue requiring trial by providing expert evidence of a potential breach of the standard of care.
SELF-REPRESENTED LITIGANT DOES NOT KNOW CIVIL PROCEDURE
In Floryan v. Luke et al., 2023 ONSC 6122 (CanLII), the defendant university brought a motion seeking an order dismissing the self-represented plaintiff’s claim against it on the suggested ground that the pleaded claim failed to disclose a reasonable cause of action. The judge granted the relief sought by the defendant and set a timetable for the delivery of written submission regarding costs if the relevant parties were unable to reach an agreement in that regard.
After receiving the parties’ written cost submissions, the judge noted that the self-represented plaintiff submissions raised concerns. First, the plaintiff’s submission argued why the judge’s substantive decision was incorrect and amenable to being appealed. The judge stated that those submissions were inappropriate at this point in the proceeding and suggested a fundamental misunderstanding on the plaintiff’s part as to the scope of proper cost submissions in this context. The judge noted that while an unhappy litigant is entitled to their personal opinion, they are also entitled pursue appellate review of that decision to the extent that such a review is permitted. Nevertheless, a court order is binding and conclusive unless and until it is set aside on appeal or lawfully quashed. Such an order cannot be attached collaterally. Therefore, it is not appropriate for a party to treat cost submissions as an opportunity to re-argue points on which the party failed to prevail during the relevant substantive hearing. As such, the judge paid no regard to the plaintiff’s submissions as to whether or not the judge’s substantive decision was correct or amenable to appeal.
Second, the plaintiff argued in his written cost submissions that the judge improperly ordered him to pay costs to the defendant in relation to the defendant’s earlier motion, which succeeded in striking the plaintiff’s claim against the defendant. The judge held that such a collateral attack on that order was impermissible and that the decision must be treated as binding and conclusive unless and until set aside by an appeal or lawfully quashed.
Third, in support of an assertion that defence counsel inappropriately “pressured” the plaintiff to pay costs claimed by the defendant, the plaintiff attached correspondence sent to him by defence counsel, indicating the defendant’s willingness to settle costs on the basis that of the plaintiff agreeing to pay, within 30 days, a sum significantly lower than the partial indemnity costs now being formally sought by the defendant. In doing so, the plaintiff blatantly disregarded the fact that the correspondence and its contents were “without prejudice” and “should not be disclosed to the court in the context of cost submissions.” The judge held that the plaintiff’s submissions were entirely inappropriate and paid no regard to the plaintiff’s submissions in that regard.
The plaintiff’s inability to retain counsel and his indicated health condition and restrictions made it extraordinarily challenging for him to advance his claim and respond to the defendant’s motion. The plaintiff did not submit a Bill of Costs indicating the amount of costs he would have sought had he been successful in the motion or his claim against the defendant. The judge held that the defendant prevailed in every issue and sub-issue that he was called upon to decide. Further, the judge noted that the plaintiff’s attempt to have the court consider evidence in his written cost submissions regarding the substantive decision of the motion was improper and unnecessarily lengthened the duration of the proceeding. The plaintiff was ordered to pay costs to the defendant.
SELF-REPRESENTED LITIGANT CANNOT SUCCEED WITHOUT EXPERT EVIDENCE
In Quinlan v. Eastern Regional Integrated Health Authority of Newfoundland and Labrador, 2023 NLSC 138 (CanLII), the plaintiffs sued a hospital because they alleged that the hospital provided sub-standard care to their brother, the deceased. They also sued the thoracic surgeon who performed their brother’s procedure because they felt that she did not obtain proper, informed consent from the deceased, and because they believed that the medical procedure conducted by the physician on the deceased resulted in his decline and eventual death.
The judge held that the plaintiffs’ claim failed on multiple grounds. At trial, the plaintiff’s testimony was replete with what other people said to him. The judge held that this was hearsay and disregarded those comments for the purposes of the decision.
The chief nursing executive was brought as a witness for the hospital and was qualified as an expert. She testified that the nursing staff met the appropriate standard of care. Further, the thoracic surgeon who performed the surgery testified that she explained the procedure to the deceased before obtaining his signed consent. She indicated that the deceased had no reservations and that he had the capacity to understand what was being explained to him. The thoracic surgeon testified that she would never undertake a surgical procedure without discussing reasonable risks. While she would have said that serious complications are unlikely, she would have mentioned them. She indicated that she cannot foresee everything and that what happened to the deceased was not a likely risk of the undergone procedure.
Another thoracic surgeon was qualified as an expert and testified that while the risks are low and rare, a number of things can happen during these procedures. Nonetheless, she would have recommended the procedure to the deceased.
The defendant hospital argued that the plaintiffs provided no evidence of a breach of the standard of care or of causation. The hospital also argued that the caselaw indicates that judges lack the ability to decide cases of medical malpractice without the assistance of experts. Further, the hospital argued that the plaintiffs had no standing to bring an action.
The thoracic surgeon who performed the procedure also argued that the standard of care can only be determined with expert opinion evidence, and that the burden of proof is on the plaintiffs. There is no reverse onus.
The court held that the plaintiffs’ action was statute barred, as the Fatal Accidents Act and Survival of Actions Act did not contemplate claims being brought by siblings. The court also found that the action was statute barred by the Limitations Act. Further, the plaintiffs led no expert evidence establishing the standard of care, a breach of that standard or evidence that the breach resulted in the injury, and eventual death, of the deceased. Therefore, the plaintiffs did not meet their burden of proof. Based on the defendants’ evidence, the court found that the deceased’s consent was informed and properly given. The plaintiffs’ action was dismissed with costs to each defendant.
These three 2023 decisions highlight the importance of hiring a lawyer when pursuing an action in medical malpractice. Medical malpractice cases are complex, and self-represented parties are disadvantaged because they usually do not have medical or legal expertise. Lawyers know the proper tests, civil procedures and caselaw to advance your claim. As such, if you or someone you love has been a victim of medical malpractice, you should contact an experienced lawyer in this area of law.
