Medical malpractice litigation is difficult for any plaintiff. For self-represented plaintiffs, it is almost always impossible. Three 2023 decisions from three different provinces (Alberta, Ontario, and Newfoundland) illustrate the recurring patterns. None of the plaintiffs prevailed. All three cases were dismissed before trial or at trial without a substantive finding on the medicine. The reasons for failure were not unique to the individual cases. They reflect structural features of medical malpractice litigation that make self-representation a near-certain path to a losing outcome.
This post sets out why patients sometimes self-represent, walks through the three 2023 decisions, and identifies the doctrinal lessons that prospective clients should understand before deciding whether to advance a claim without counsel.
Why patients self-represent
The cost realities of medical malpractice litigation produce a small but persistent population of self-represented plaintiffs.
Most malpractice claims are pursued on contingency fee arrangements. The plaintiff does not pay legal fees as the case proceeds; the firm absorbs the disbursements (which can run into hundreds of thousands of dollars on a complex case), pays for the expert evidence, and recovers a percentage of any successful judgment or settlement. This is the only realistic financing structure for most malpractice claims.
The contingency fee structure works because malpractice lawyers screen cases carefully. A firm that takes weak cases on contingency loses money on the cases that fail; the strong cases have to support the weak ones, plus the firm’s overhead, plus a return. Most experienced malpractice firms take a small fraction of the matters that come through intake. The threshold is not whether something went wrong in the patient’s care. The threshold is whether the case has the elements of a viable claim — standard of care breach, causation, and damages — supported by the kind of expert evidence that can survive trial.
Where a firm declines to take a case on contingency, the patient has limited realistic options. Paying hourly fees on a malpractice case is prohibitive for most patients. The fees on a contested malpractice trial routinely exceed several hundred thousand dollars. Most patients who are declined by experienced counsel either drop the matter or pursue it as a self-represented litigant.
For more on the threshold question, see Can I Sue for Medical Malpractice?. For the broader candid framing, see Suing for Medical Malpractice in Ontario: What You Need to Know.
Trim v Braun, 2023 ABCJ 242: the expert evidence requirement
The plaintiff in Trim v Braun, 2023 ABCJ 242 was a self-represented patient who had presented with jaw pain to three different hospitals between May and July 2018. She had repeatedly requested a bone scan; the physicians she saw had concluded that a bone scan was not warranted and had prescribed antibiotics. A fourth physician eventually ordered a bone scan on July 26, 2018, which identified a bone infection. The plaintiff was treated with IV antibiotics for eight weeks, which resolved the infection and largely resolved the pain.
The plaintiff sued the three physicians who had declined to order a bone scan, alleging that the failure had caused her two months of unnecessary pain and the unnecessary extraction of two molars. She claimed $50,000 in general damages in each of three actions.
The defendants brought applications for summary dismissal. The plaintiff did not provide expert reports meeting the requirements of the case management orders, despite extensions of time. She provided a one-page letter from a doctor opining that “it appears [that the plaintiff] did not receive the best possible medical care available as quickly as possible.” The court held that this letter was not a proper expert report. It was late, did not address the qualifications of the opining doctor, did not specify the factual background, and did not address the standard of care.
The Alberta framework for summary judgment in malpractice cases is a four-part inquiry:
- 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?
- Has the moving party met the burden of showing that there is either no merit or no defence in the respondent’s position and that there is no genuine issue requiring a trial?
- 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.
- The presiding judge must be left with sufficient confidence in the state of the record (facts, evidence, and law) to exercise judicial discretion and summarily resolve the dispute.
The defendants put forward affidavit evidence that the standard of care had been met. The burden then fell on the plaintiff to demonstrate that there was a genuine issue requiring trial. Without admissible expert evidence on standard of care, she could not meet that burden.
The court reaffirmed the underlying rule: in most professional liability claims, expert evidence is required to establish a breach of the standard of care. There are two narrow exceptions: (1) where the standard can be reliably determined without expert evidence on matters of which an ordinary person may be expected to have knowledge; and (2) where the conduct is so egregious that it is obvious the standard has been breached even without precise parameters. Neither exception applied to the question whether a bone scan should have been ordered. The decision required expert evidence, and expert evidence was not before the court.
The court also reaffirmed the framing of the standard-of-care question. The test is not whether the plaintiff received the best possible medical care. The test is whether the care met the appropriate standard expected of doctors, nurses, or staff in the relevant facilities. A patient may have received care that was not optimal without that care having fallen below the standard.
The actions were dismissed.
Floryan v Luke, 2023 ONSC 6122: civil procedure for the unrepresented
The plaintiff in Floryan v Luke et al., 2023 ONSC 6122 was a self-represented plaintiff whose claim against a university defendant had been struck on a motion. The matter the court addressed in this decision was costs. The plaintiff’s costs submissions illustrated several recurring procedural difficulties faced by self-represented litigants.
The plaintiff treated costs submissions as an opportunity to re-argue the merits. The plaintiff’s submissions argued that the trial judge’s substantive decision had been wrong and that it was amenable to appeal. The court held that this was not the appropriate forum to make those arguments. Cost submissions address the question of who pays for the proceeding that has just been concluded; they are not an opportunity to reopen the substantive decision. A litigant who disagrees with a substantive decision has a remedy: an appeal. Until set aside on appeal, the decision is binding and conclusive. A collateral attack on the underlying order in subsequent cost submissions is impermissible.
The plaintiff attempted to disclose without-prejudice correspondence. The plaintiff attached settlement correspondence sent by defence counsel and argued that defence counsel had inappropriately “pressured” him to pay costs at the proposed settlement figure. The correspondence was marked “without prejudice,” meaning that it was sent on the explicit understanding that it would not be disclosed to the court in subsequent proceedings. The plaintiff disclosed it anyway. The court held that the submissions in this regard were entirely inappropriate and disregarded them.
The plaintiff did not file a bill of costs. Bills of costs are how cost claims are quantified. A party who has been put to legal expense and seeks recovery must document those expenses. The plaintiff in Floryan had not been put to formal legal expense (he was self-represented), but the procedural requirement still operated to structure the cost submissions. The plaintiff’s submissions did not engage with the procedural requirements in the way the court expected.
The court found that the defendant had prevailed on every issue and ordered the plaintiff to pay costs. The plaintiff’s procedural missteps did not change the outcome but did extend the proceedings unnecessarily.
The general point is that civil procedure has structure. The structure exists to channel substantive disputes through the system in a way that produces fair, predictable outcomes. A self-represented litigant who is unfamiliar with the structure (the rules of evidence, the conventions of without-prejudice communications, the proper scope of cost submissions, the bill of costs requirement) is going to make procedural mistakes that affect the outcome.
Quinlan v Eastern Regional Integrated Health Authority of Newfoundland and Labrador, 2023 NLSC 138: standing, limitations, and again the expert evidence requirement
The plaintiffs in Quinlan v Eastern Regional Integrated Health Authority of Newfoundland and Labrador, 2023 NLSC 138 were self-represented siblings of a deceased patient. They sued the hospital that had provided care to their brother and the thoracic surgeon who had performed the surgical procedure that the plaintiffs alleged had caused his decline and death. They alleged sub-standard care and failure to obtain informed consent.
The case failed on multiple grounds.
Hearsay. Much of the plaintiff’s evidence at trial consisted of what other people had said to him. Hearsay evidence is generally inadmissible. The court disregarded those portions of the testimony.
Statute-barred under fatal-accidents and survival-of-actions legislation. The court held that the Fatal Accidents Act and Survival of Actions Act of Newfoundland did not contemplate claims being brought by siblings of a deceased patient. The framework is concerned with claims by spouses, children, and parents — those whose financial dependence on the deceased can be measured. Sibling claims are not typically within the framework. The plaintiffs lacked standing.
Statute-barred under the Limitations Act. The claim had also exceeded the relevant limitation period. Limitation periods are statutory deadlines for commencing proceedings; missing the deadline forecloses the claim regardless of its merits.
No expert evidence. The plaintiffs led no expert evidence establishing the standard of care, the breach of that standard, or causation. The defence called the chief nursing executive (qualified as an expert) who testified that the nursing care met the standard, and another thoracic surgeon (qualified as an expert) who testified that the procedure had been appropriate. The defendant surgeon testified about her own consent discussion with the deceased. The court accepted this evidence. The plaintiffs did not meet their burden of proof.
The action was dismissed with costs.
The common doctrinal threads
The three cases differ in their facts, their jurisdictions, and their procedural postures. The recurring features that produced the dismissals are common.
The expert evidence requirement is non-negotiable. In medical malpractice cases, the plaintiff must prove standard of care, breach, and causation. With narrow exceptions (matters within common knowledge; conduct so egregious that no expert is needed), all three pillars require expert evidence. A self-represented litigant who cannot retain qualified experts cannot meet the burden of proof. The Alberta court in Trim, the Newfoundland court in Quinlan, and (implicitly) the Ontario court in Floryan all applied this rule.
The summary judgment framework is the gatekeeper. Modern civil procedure includes robust summary judgment mechanisms that allow defendants to dispose of unmerited claims without a trial. In Alberta, the four-part test in Trim applies. In Ontario, the framework articulated in Hryniak v Mauldin, 2014 SCC 7, allows the court to take a “robust and meaningful” approach to summary disposition. A self-represented plaintiff facing a well-prepared defence motion for summary judgment without admissible expert evidence is in an unwinnable position.
Civil procedure rules apply regardless of self-representation. Self-represented litigants face the same procedural requirements as represented parties. Rules of evidence (hearsay, opinion evidence, without-prejudice communications) apply equally. Procedural mechanisms (case management orders, expert disclosure deadlines, costs submissions) apply equally. Courts have some latitude to assist self-represented litigants on the mechanics, but they cannot relieve them of the substantive obligations.
Standing, limitations, and other threshold issues operate independently. Quinlan failed on standing and limitations grounds even before the expert evidence issue arose. A claim that lacks standing, or that has been commenced after the limitation period, fails regardless of its substantive merits. Threshold issues are typically not visible to self-represented litigants who have not had the benefit of a comprehensive initial assessment.
The defence is asymmetrically resourced. In Canadian medical malpractice litigation, defence is typically funded by the Canadian Medical Protective Association (for physicians), provincial hospital insurance reciprocal exchanges (for hospitals), or other professional defence resources. These bodies have substantial experience, retained expert panels, and counsel who specialize in defending malpractice claims. A self-represented plaintiff faces this defence resourcing without any equivalent on their side. The asymmetry is structural, not personal.
The Ontario application
The three cases reviewed are from Alberta, Ontario, and Newfoundland. The doctrinal lessons apply fully in Ontario. The substantive frameworks are similar across Canadian common law jurisdictions:
- The expert evidence requirement is a feature of Canadian medical negligence law generally, not jurisdiction-specific. The leading SCC authority is ter Neuzen v Korn, [1995] 3 SCR 674, which articulated the standard-of-care framework, and the requirement for expert evidence has been consistently applied in subsequent cases.
- The summary judgment framework in Ontario is governed by Rule 20 of the Rules of Civil Procedure and the SCC framework in Hryniak v Mauldin. Ontario courts have the same robust summary disposition powers exercised in Trim.
- The civil procedure rules in Ontario are governed by the Rules of Civil Procedure. The procedural traps that operated in Floryan are equally available in Ontario malpractice litigation.
- Limitations and standing in Ontario are governed by the Limitations Act, 2002, the Family Law Act (for dependants’ claims), and other applicable statutes. The threshold issues that operated in Quinlan operate equivalently in Ontario.
Practical guidance for prospective clients
If you have a possible medical malpractice claim and have been declined by experienced counsel, the following considerations may help.
Take the decline seriously. Experienced malpractice lawyers screen carefully. If multiple experienced counsel have declined a case, that is meaningful information. It does not necessarily mean the underlying medicine was acceptable. It means the case probably does not have the elements of a viable claim that can be proven through expert evidence within the budget the case can sustain.
Understand what the decline is about. A decline is not always about the medicine. It can be about:
- The limitation period (the claim is or will soon be out of time)
- Standing (the right person is not the plaintiff)
- Causation (the harm was caused by the underlying disease, not the medicine)
- Damages (the harm is real but the recoverable damages do not justify the cost of the case)
- Standard of care (the medicine, on review, was within an acceptable range)
- Expert availability (no expert is willing to support the case)
A frank conversation with the declining lawyer about which of these factors applies is useful before considering self-representation.
Consider alternatives to litigation. Where a malpractice claim is not viable, other avenues may address the patient’s concerns:
- Hospital patient relations processes
- The Patient Ombudsman (in Ontario)
- Complaints to the regulatory college (CPSO, CNO, etc.) — see Should I File a CPSO Complaint?
- The Office of the Chief Coroner (in cases of death)
See A Patient’s Guide to Making Complaints About Health Care in Ontario for the full landscape.
If you self-represent, understand what you are taking on. A self-represented malpractice plaintiff who is not prepared to retain expert witnesses (typically at substantial personal cost) is unlikely to overcome a summary judgment motion. The civil procedure rules will apply, including the rules on evidence, costs, and procedure that may be unfamiliar. The defendant will be represented by experienced counsel. The likely outcome, on the 2023 case-law evidence, is dismissal.
The expert evidence cluster
The 2023 cases reinforce a doctrinal theme that runs through other in-cluster cases:
- Knight v Lawson: even with expert evidence, causation can fail (Notable Case)
- Beazley v Johnston: the White Burgess expert qualification framework — even retained experts can be disqualified
- Hanson-Tasker v Ewart: when defence experts displace the Snell adverse inference
- Tripp v Ross: oncology expert evidence as the foundation of causation analysis
Self-represented litigants face the same expert evidence requirements that operate in cases at the highest level of representation. The difficulty is not jurisdictional or procedural. It is structural.
Why this matters
For prospective clients considering self-representation. The 2023 case law is clear and consistent across three provinces. Self-represented malpractice plaintiffs almost never succeed. The cost of attempting and failing includes legal costs ordered to the defendant, time invested in proceedings that do not produce a substantive remedy, and the emotional difficulty of pursuing a complex case without support. Before deciding to self-represent, prospective plaintiffs should understand what is realistic.
For the bar. The 2023 cases are useful precedent on the expert evidence requirement, the summary judgment framework, the civil procedure rules, and the limitations and standing thresholds. Defence counsel in particular may find the cases useful as authority for early disposition motions.
For the broader public. The cases illustrate a structural feature of Canadian medical malpractice litigation that affects access to justice. Where contingency-fee firms screen carefully and decline a substantial fraction of intake matters, and where alternative funding mechanisms for malpractice claims are limited, a population of patients with grievances against the medical system has no realistic legal remedy. The 2023 case law documents the consequences. Whether the policy framework should be reformed (legal aid coverage, public malpractice insurance, no-fault compensation schemes such as those operating in some other jurisdictions) is a question that goes beyond the scope of this post but is worth thinking about.
For more on the realistic landscape of malpractice claims, see Suing for Medical Malpractice in Ontario: What You Need to Know and Can I Sue for Medical Malpractice?. For guidance on choosing a malpractice lawyer, see Choosing a Medical Malpractice Lawyer.
Cases discussed:
- Trim v Braun, 2023 ABCJ 242 (CanLII) — Alberta
- Floryan v Luke et al., 2023 ONSC 6122 (CanLII) — Ontario
- Quinlan v Eastern Regional Integrated Health Authority of NL, 2023 NLSC 138 (CanLII) — Newfoundland and Labrador
