The standard of care in Canadian medical negligence law is not simply a function of the practitioner’s formal credentials. A physician who undertakes work typically performed by specialists is held to the specialist standard, regardless of their general training. The principle is foundational, articulated in cases as old as Wilson v Swanson, [1956] SCR 804, and Crits v Sylvester, [1956] OR 132 (CA), aff’d [1956] SCR 991, and reaffirmed in modern jurisprudence including ter Neuzen v Korn, [1995] 3 SCR 674. Its modern application can still produce difficult cases — particularly in rural settings where general practitioners and general surgeons often perform procedures that, in urban centres, would be referred to subspecialists.
Dumesnil v Jacob, 2024 MBCA 4, is the Manitoba Court of Appeal’s recent application of the doctrine. The trial judge had held a rural general surgeon who performed complex orthopedic trauma surgery to the standard of “a general surgeon in a rural community based hospital practising in orthopaedics” — a standard that the appellate court found was too low for the procedure he actually undertook. The trial judge also relied on a medical journal article that was not in evidence and that had not been disclosed to the parties. Both errors led to a new trial.
The case is doctrinally significant for two reasons. It applies the specialist standard to a non-specialist who undertook specialist work, and it reaffirms the procedural fairness rule that courts cannot rely on extrinsic materials never put before the parties.
The substantive case
In July 2006, the plaintiff sustained a fracture of the calcaneus (heel bone) of her left foot in a motor vehicle accident. The defendant — a general surgeon with orthopedic training, practising in a rural Manitoba community hospital — performed an open reduction and internal fixation (ORIF) of the fracture. The surgery was intended to realign the fractured bone and stabilize it with internal hardware.
The plaintiff continued to be symptomatic for approximately ten years after the surgery. Eventually, an orthopedic surgeon with subspecialties in trauma and foot and ankle performed a corrective surgery: removing bone and reducing displaced peroneal tendons back into their proper position in the peroneal groove.
The plaintiff alleged that the original surgery had failed to address the displaced peroneal tendons — anatomy that lies adjacent to the calcaneus and can be affected in calcaneus fractures — and that this failure had caused her prolonged symptoms, infection, and an increased risk of arthritis.
The clinical context: calcaneus fractures
A calcaneus fracture is one of the more complex injuries in orthopedic trauma. The calcaneus is the heel bone — the largest bone of the foot and one of the most commonly fractured tarsal bones, typically from high-energy mechanisms (falls from height, motor vehicle accidents). The bone has complex three-dimensional anatomy and articulates with several surrounding structures.
ORIF of a displaced calcaneus fracture is technically demanding. The surgery typically requires:
- Restoration of the calcaneal height, width, and length
- Re-establishment of the subtalar joint surface
- Attention to the peroneal tendons, which can be displaced from their groove in the fracture
- Avoidance of soft tissue complications (wound dehiscence, infection)
- Avoidance of nerve injury (the sural nerve runs in the operative field)
In modern orthopedic practice, ORIF of a complex calcaneus fracture is generally performed by an orthopedic surgeon with subspecialty training in trauma or in foot and ankle surgery. The decision whether to operate at all is itself subspecialty-level (some calcaneus fractures are managed non-operatively).
The expert evidence at trial — including from the defendant’s own expert — established that the procedure the defendant performed is usually done by orthopedic surgeons with a subspecialty in trauma or in foot and ankle. This factual finding was unchallenged.
The trial decision
The trial judge dismissed the action. In defining the applicable standard of care, the trial judge held that the defendant was “a general surgeon in a rural community based hospital practising in orthopaedics.” Applying this standard, the trial judge found that the defendant had not breached the standard of care.
The plaintiff appealed on two grounds: that the trial judge had used too low a standard of care, and that the trial judge had relied on a medical journal article not in evidence.
The appellate analysis: the specialist standard
The Manitoba Court of Appeal accepted that, in the particular circumstances of the case, the trial judge had erred by not adopting a standard of care close to that of an orthopedic surgeon with a subspecialty in trauma.
The doctrinal foundation is well-settled. In Wilson v Swanson, the Supreme Court of Canada held that a physician who undertakes specialist work must be measured against the standard of an ordinary specialist in that field. The principle has been refined in ter Neuzen v Korn and consistently applied across Canadian common-law jurisdictions: the standard of care is calibrated to the work undertaken, not to the practitioner’s general training.
Two corollaries are relevant in Dumesnil.
First, rural setting does not automatically lower the standard for the procedure. A physician who chooses to perform complex specialist surgery in a rural setting is not held to a different procedural standard than the same surgery would attract in an urban centre. The geographic context may affect available resources, post-operative care arrangements, or timing of referrals, but it does not lower the technical standard for the surgery itself. A patient who has a complex calcaneus fracture is entitled to surgery performed to the standard of the surgeon who ordinarily performs that procedure, whether the surgery occurs in Toronto or in rural Manitoba.
Second, extensive experience with a procedure pulls the standard upward, not downward. The defendant’s extensive experience performing calcaneus ORIF surgeries was a factor weighing in favour of holding him to the specialist standard, not against it. A general surgeon who has chosen to take on complex orthopedic work over many years cannot then invoke their non-specialist credentials to claim a lower standard. The fact that they have undertaken the work, and continued to undertake it, means they are properly measured against the standard of those who ordinarily perform it.
The trial judge’s adoption of the rural general surgeon standard produced a significant downstream effect: the trial judge “did not deal with any of the experts’ evidence about how they, as subspecialists, would have treated the Plaintiff.” The expert evidence the plaintiff had marshalled — testimony from trauma orthopedic subspecialists — was effectively put aside because the standard the trial judge applied was lower than the standard those subspecialists were addressing.
The appellate analysis: the extrinsic evidence error
The Manitoba Court of Appeal also held that the trial judge had committed “a very serious error” by introducing medical literature on his own, after the trial, without disclosing it to the parties before his decision was issued.
The error engages a fundamental principle of procedural fairness. Parties to litigation must have the opportunity to address all evidence that the court intends to rely on. A trial judge who conducts independent research after the close of evidence — particularly research that bears on a contested issue — is making findings on a record that the parties have not seen. The parties cannot cross-examine the source, cannot respond with their own evidence, and cannot make submissions on the weight to be given to the material. The result is a decision made on an evidentiary foundation that the parties never had an opportunity to engage with.
The Court of Appeal found that the trial judge had relied on the article to assess the expert evidence. The error was therefore not harmless — it was material to the conclusion that the defendant had not breached the standard of care.
The Ontario applicability
The substantive law applied in Dumesnil is not Manitoba-specific. The specialist standard of care doctrine articulated in Wilson v Swanson, Crits v Sylvester, and ter Neuzen v Korn operates the same way in Ontario. A general practitioner in Ontario who undertakes specialist work is held to the specialist standard for that work. A general surgeon who performs orthopedic trauma surgery is measured against the standard of an orthopedic trauma surgeon.
The procedural fairness rule on extrinsic evidence is also national. Ontario trial judges, like Manitoba trial judges, cannot conduct post-trial independent research and rely on undisclosed materials. The principle applies equally in any common-law jurisdiction.
The doctrinal lessons from Dumesnil therefore apply directly to Ontario malpractice practice.
The doctrinal lessons
The case stands for several propositions.
The standard of care is calibrated to the work, not the credentials. A physician’s formal training is one input into the standard-of-care analysis. The procedure actually undertaken is another, and often the more important one. A practitioner who undertakes specialist work is measured against the specialist standard regardless of how they describe themselves.
Rural practice is not a free pass on procedural standards. Rural physicians serve their communities by performing procedures that, in larger centres, would be referred to specialists. The choice to perform such procedures does not lower the technical standard. The patient remains entitled to the standard the procedure attracts.
Experience cuts both ways. A physician who has taken on complex work over many years cannot use that experience to lower the standard they are measured against. Experience is a factor that supports the application of the specialist standard; it is not a reason to discount it.
Trial judges cannot do independent research. The procedural fairness rule on extrinsic evidence is robust. A trial judge who consults materials not in evidence — even materials that appear authoritative and relevant — must disclose the materials and give the parties an opportunity to address them before relying on them. The failure to do so is grounds for appellate intervention.
Specialist expert evidence is foundational. Plaintiff counsel in a specialist standard case need experts who can speak to the standard at the appropriate level of specialization. If the case is about subspecialty work, the experts should be subspecialists. The trial judge’s adoption of a lower standard in Dumesnil effectively neutralized the plaintiff’s expert evidence; on a new trial, that evidence becomes operative.
The appellate cases cluster
Dumesnil v Jacob is the third appellate decision in the rewritten case-comment cluster:
- Willick v Willard (Court of Appeal for Ontario): trial judge’s reasons upheld; SOC met by both defendants; deferential standard of review
- Hanson-Tasker v Ewart (Court of Appeal for BC): trial judge’s causation analysis upheld; Snell v Farrell adverse inference declined; deferential review of discretionary findings
- Dumesnil v Jacob (Court of Appeal of Manitoba): new trial ordered; trial judge’s SOC analysis was wrong as a matter of law; extrinsic evidence error
The three cases together cover the spectrum of appellate outcomes: affirmance with deferential review (Willick), affirmance on causation despite plaintiff Snell argument (Hanson-Tasker), and intervention with new trial on SOC and procedural fairness grounds (Dumesnil).
The Manitoba sub-cluster
Dumesnil is the second Manitoba case in the cross-province sub-cluster:
- Tripp v Ross (Court of King’s Bench of Manitoba): trial-level decision on cancer causation; admitted negligence + causation defeat
- Dumesnil v Jacob (Manitoba Court of Appeal): appellate decision on specialist standard and extrinsic evidence
The two Manitoba cases now cover both trial-level and appellate analysis in the province. The cross-province sub-cluster now includes substantive Manitoba coverage.
The cross-province sub-cluster
Dumesnil brings the cross-province sub-cluster to ten cases across five provinces:
- British Columbia (5): Massie v PHSA, Sheoran v IHA, Gilmore v Love, Lal v Anderson, Hanson-Tasker v Ewart
- Alberta (1): Khaleel v Indar
- Manitoba (2): Tripp v Ross, Dumesnil v Jacob (this case)
- Newfoundland (1): Quinlan v Eastern Regional (discussed in 2023 in Review SRL)
- New Brunswick (1): Scott v RHA
Five provinces, ten cases. The cross-province material now provides substantial national coverage of the doctrinal frameworks that operate in Canadian medical malpractice litigation.
Why this case matters
For plaintiff counsel. Dumesnil is useful precedent on the specialist standard of care argument. Where a non-specialist has undertaken specialist work, the case is the basis for arguing that the standard should be the specialist standard. The plaintiff’s expert evidence should be marshalled accordingly — from specialists, addressing the standard at the level the procedure required, not at the level the defendant’s general training might suggest.
For defence counsel. The case is a useful reminder that the specialist standard is the operative framework where the defendant has undertaken specialist work. Defending such a case on the basis of the defendant’s general training may not succeed. The defence should engage with the specialist standard directly — whether the defendant met it on the specific procedure — rather than seeking to apply a lower general-practitioner standard.
For practising physicians. The case is a reminder that the scope of practice carries the standard of care that goes with it. A general surgeon who chooses to perform orthopedic trauma surgery does not thereby lower the standard for that work. The decision to undertake specialist procedures carries the obligation to meet the specialist standard. Where that is not possible, referral to a specialist may be the only appropriate course.
For prospective clients. The doctrine of Dumesnil protects patients who receive specialist procedures from non-specialists. Whether you were treated by an orthopedic surgeon, a general surgeon performing orthopedic work, or a family physician performing minor surgery, the standard of care applied is the standard for the work undertaken. The qualification of the person who performed the work is one input; the procedure itself is the more important one.
For more on surgical malpractice in Ontario, see Surgical Errors Lawyer in Toronto. For the broader framework of malpractice claims, see Suing for Medical Malpractice in Ontario: What You Need to Know.
Decision Date: January 18, 2024
Jurisdiction: Court of Appeal of Manitoba
Citation: Dumesnil v Dr Jacob, 2024 MBCA 4 (CanLII)
Key authorities: Wilson v Swanson, [1956] SCR 804; Crits v Sylvester, [1956] OR 132 (CA), aff’d [1956] SCR 991; ter Neuzen v Korn, [1995] 3 SCR 674
