Medical malpractice cases in Canadian common law require expert evidence on the standard of care. The rule reflects the specialized nature of clinical practice — what counts as a breach for any particular procedure is generally not within the experience or knowledge of lay people. A natural corollary follows: when a plaintiff has failed to displace defence expert evidence on the standard, the plaintiff cannot generally invite the court to substitute its own analysis of the underlying clinical risks. Expert evidence that establishes the standard of care does so against the background of the risks the standard is designed to address. Asking the court to reweigh those risks independently is, in effect, asking the court to exceed its proper role.
Focken v Miller, 2024 BCCA 74, is the Court of Appeal for British Columbia’s recent articulation of this principle. A widow appealed the dismissal of a medical negligence action arising from the death of her husband following a delayed embolization for a lingual artery pseudoaneurysm. The plaintiff’s central appellate argument was that the trial judge had erred in law by not considering the degree of foreseeable risk to the patient when assessing the standard of care. The BCCA rejected the argument: when a trial judge relies on expert evidence to describe the standard of care, the trial judge is relying on testimony that has already weighed the foreseeable risk. The court need not perform an independent risk analysis on top of the expert opinion.
The case is doctrinally significant because it engages four frameworks together: the expert evidence requirement; the judicial humility doctrine on contested medical questions; the Anderson v Chasney “plainly obvious negligence” exception; and the deferential standard of appellate review for trial judge assessments of expert evidence.
The clinical context
A lingual artery pseudoaneurysm is a rare vascular condition in which the lingual artery (the major artery supplying the tongue and floor of the mouth) develops a contained partial-wall rupture. The pseudoaneurysm is held in place by surrounding tissue rather than by the intact arterial wall. It can leak intermittently or rupture catastrophically. The clinical risk depends on size, location, the underlying cause, and the integrity of the surrounding tissue.
In Focken, the pseudoaneurysm was secondary to a necrotic mass — a tissue-destroying lesion, typically cancerous — that had eroded into the artery. This combination of pathologies is particularly dangerous because the necrotic tissue cannot maintain the contained rupture indefinitely, and the underlying mass tends to enlarge over time.
Embolization is the standard interventional treatment for a bleeding or high-risk pseudoaneurysm. The procedure is performed by an interventional radiologist in an angiography suite. A catheter is threaded through the vascular system (typically via the femoral artery) to the target vessel, and embolic material — coils, particles, or specialized glue — is deployed to occlude the artery or the pseudoaneurysm itself. The procedure requires specialized equipment, fluoroscopic imaging, experienced support staff, and access to interventional supplies. Off-hours availability of all these elements varies by hospital.
The clinical distinction between urgent and emergent intervention is critical in this kind of case:
- Emergent: Immediate intervention required without delay. Active bleeding, hemodynamic instability, or imminent vascular catastrophe.
- Urgent: Intervention required within a defined window (typically 24 hours) but not requiring immediate action. The patient is stable; the risk of waiting is real but quantifiable.
The clinical decision about which category applies turns on the specific findings: active vs imminent bleeding, vital signs, the nature of the underlying pathology, and the anatomic specifics. The same condition can be emergent in one patient and urgent in another, depending on these features.
The substantive facts
The chronology unfolded over a difficult thirty-six hour period.
December 19, 2018: The patient was taken to hospital after vomiting blood and thick blood clots. The emergency room physician examined him and found no ongoing active bleeding. The clinical picture suggested a vascular source. The ER physician ordered CT angiography, electrocardiogram, and pain medication, and admitted the patient under a hospitalist for overnight care. He consulted with Dr. Miller, an otolaryngologist (ENT surgeon).
The CT angiogram showed a pseudoaneurysm in the lingual artery and a necrotic mass at that location. Significantly, the imaging showed no blood leaking into the surrounding tissue — consistent with the absence of active bleeding observed clinically.
Dr. Miller examined the patient and confirmed no active bleeding. He consulted with Dr. Best, an interventional radiologist. Their joint clinical assessment was that an embolization was required urgently — within 24 hours — but that the patient’s condition was not emergent. He did not require the procedure immediately.
The procedure was scheduled for 8:00 a.m. the next morning. The clinical reasoning included the substantive medical assessment of the patient’s stability and the operational considerations that interventional radiology procedures performed during regular hours, with full staffing, generally have better outcomes than overnight procedures with reduced support.
December 20, 2018, approximately 3:00 a.m.: The patient suffered a significant bleed in the neck. His brain was deprived of oxygen for approximately ten minutes before the bleeding could be controlled. He was intubated and placed on life support.
January 10, 2019: The patient died.
The trial findings
The trial judge framed two issues:
- Whether the patient was actively bleeding before 3:00 a.m. on December 20
- Whether the decision to perform the embolization at 8:00 a.m. December 20 — rather than immediately on December 19 — breached the standard of care
On the first issue, the trial judge found that the patient was not actively bleeding until 3:00 a.m. on December 20. The CT angiogram findings were consistent with this; so were the clinical examinations of multiple physicians.
On the second issue, the trial judge accepted defence expert evidence — principally from Dr. Irvine — that the physicians had met the standard of care expected of an otolaryngologist and an interventional and diagnostic radiologist. The plaintiff had no expert evidence in support of her position. The trial judge dismissed the action.
The appellate arguments
The plaintiff advanced four appellate arguments.
The “foreseeable risk” argument. The plaintiff argued that the trial judge erred in law by not assessing the standard of care with explicit consideration of the degree of foreseeable risk to the patient. The argument was effectively that the judge needed to engage in his own analysis of how serious the risk of waiting was, and that this analysis was missing.
The BCCA rejected this argument on a principled basis. When a judge relies on expert evidence to describe the standard of care, the judge is relying on testimony that already incorporates an assessment of the foreseeable risks. The standard of care for any given clinical situation is not articulated in a vacuum — it reflects the risks the standard is designed to address. By accepting expert evidence on what the standard requires, the trial judge implicitly adopted the experts’ assessment of the foreseeable risk. The court did not need to perform a separate, independent risk analysis to validate the conclusion.
This is one of the cleanest recent appellate articulations of the principle. It limits the kind of argument a plaintiff can make on appeal where the trial expert evidence has gone against them. Asking the court to reweigh the underlying clinical risks, beyond what the experts have already considered, is not a viable avenue.
The “fraught with obvious risks” argument. The plaintiff argued that the trial judge failed to address her contention that the physicians’ chosen course of treatment was “so fraught with obvious risks” that it was negligent regardless of the expert opinion. This argument is, in substance, an invocation of the Anderson v Chasney, [1949] 4 DLR 71 (SCC), “plainly obvious negligence” exception that I addressed at length in the rewrite of Rybakov v Khattak.
The BCCA characterized the argument as a request to the trial judge to set the standard of care without relying on expert opinion. The court rejected the argument on the same essential basis as in Rybakov: a clinical scheduling decision based on the assessment of urgency vs emergency is not amenable to lay determination. The trial judge correctly followed the leading authorities on judicial humility — trial judges should not involve themselves in controversial assessments of diagnosis and treatment that fall properly within expert clinical judgment. The exception is narrow and did not apply here.
The palpable and overriding error argument on Dr. Irvine. The plaintiff argued that the trial judge made a palpable and overriding error by accepting Dr. Irvine’s expert opinion. The BCCA observed that Dr. Irvine’s opinion was not determinative on its own — the plaintiff had tendered no expert reports in support of her case that the trial judge accepted, and the opinions of other physicians were strongly supportive of the defence. Even if Dr. Irvine’s particular opinion could be discounted, the overall expert evidence picture supported the trial judge’s conclusion.
The “anecdotal vs opinion” evidence argument. The plaintiff argued that the trial judge erred in relying on Dr. Best’s evidence that procedures performed at night are associated with higher complication rates compared to those performed during the day. The plaintiff characterized this as “anecdotal” rather than properly supported opinion evidence.
The BCCA’s response was procedural. The plaintiff had not made any attempt to establish that Dr. Best’s evidence was anecdotal as opposed to opinion-based. Without that foundation, the trial judge had not erred in placing weight on the evidence. The underlying clinical observation — that interventional procedures performed during regular hours, with full staffing and resources, generally have better outcomes than overnight procedures — is well-supported in the literature, though the specifics will vary by procedure type, hospital, and clinical context.
The judicial humility doctrine
Focken v Miller sits squarely in the doctrinal area sometimes called “judicial humility on medical questions.” The doctrine derives from ter Neuzen v Korn, [1995] 3 SCR 674, and the broader common-law tradition that courts are slow to find common professional practice negligent. The principle has several components:
- Where a common or established professional practice is followed, courts will not generally find that practice negligent absent compelling expert evidence
- Where expert evidence has established the standard of care, courts will not generally substitute their own assessment of the underlying clinical questions
- Where the alleged negligence requires specialized medical knowledge to evaluate, expert evidence is required and the Anderson v Chasney exception does not apply
- Trial judges have meaningful discretion in weighing competing expert opinions, reviewable on appeal only for palpable and overriding error
The doctrine reflects a balance. On one hand, the courts must adjudicate medical malpractice claims — that is part of their constitutional function. On the other hand, the courts must avoid setting standards for medical practice by judicial fiat when those standards are properly developed by the medical community through training, guidelines, and peer review. The judicial humility doctrine respects the institutional limits on what courts can competently assess in isolation.
Focken v Miller is a clean illustration. The plaintiff’s appellate arguments, taken together, invited the BCCA to set aside the trial judge’s reliance on expert evidence in favour of either (a) the court’s own assessment of foreseeable risk, or (b) a finding of “obvious” negligence that the experts had not endorsed. The BCCA declined the invitation in both forms.
The deferential review framework
The BCCA’s review was conducted under the standard appellate framework for malpractice cases. Errors of law are reviewed on the correctness standard; findings of fact and assessments of credibility and expert evidence are reviewed on the palpable and overriding error standard. The trial judge’s findings on whether the patient was actively bleeding before 3 a.m., whether Dr. Irvine’s opinion should be accepted, and what weight to place on Dr. Best’s evidence about night-time procedures were all findings of fact (or mixed fact and law) reviewable on the deferential standard.
The plaintiff did not identify any palpable and overriding error. The trial judge’s reasoning was supported by the evidence; the conclusions followed logically from the findings. The appellate court’s role does not extend to retrying the case on the cold record.
Comparison: Focken and Rybakov
Focken v Miller sits closely alongside Rybakov v Khattak, released by the same court in the same period. Both cases:
- Were affirmed on appeal
- Engaged the expert evidence requirement
- Engaged the Anderson v Chasney “plainly obvious negligence” exception
- Were resolved against plaintiffs who had inadequate expert evidence to establish breach of the standard of care
The differences are doctrinally interesting:
- Rybakov turned on the absence of expert evidence at all. The plaintiff tendered no expert testimony. The trial judge dismissed mid-trial; the BCCA affirmed.
- Focken turned on the absence of plaintiff expert evidence that the trial judge accepted. The plaintiff did not displace defence expert evidence. The trial judge dismissed on the merits; the BCCA affirmed.
Together the two cases articulate, from opposite ends, the structural importance of expert evidence in malpractice litigation. Rybakov shows what happens when no expert is tendered. Focken shows what happens when expert evidence is tendered but the defence experts are accepted on a no-contest basis.
The doctrinal lessons
The case stands for several propositions.
Expert evidence incorporates the risk assessment. When a trial judge accepts expert evidence on the standard of care, the judge is implicitly adopting the experts’ assessment of the foreseeable clinical risks. The court does not need to perform an independent risk analysis on top of the expert opinion. Asking it to do so is not a viable appellate strategy where the underlying expert evidence has gone against the plaintiff.
The Anderson v Chasney exception is narrow and consistent. Both Rybakov and Focken show the BCCA applying the exception narrowly. Clinical decisions about timing, scheduling, and disclosure during a course of treatment are not generally “plainly obvious” negligence amenable to lay assessment. The exception is reserved for cases of obvious carelessness — the surgical sponge, the patently inappropriate medication.
Urgent vs emergent is a clinical distinction with legal force. The distinction between “urgent within 24 hours” and “emergent immediately” is a real clinical concept that courts will respect. A physician who classifies a condition as urgent rather than emergent, with appropriate clinical foundation, is not breaching the standard of care merely because a bad outcome later occurs.
Night-time procedure complication rates are a legitimate clinical consideration. Interventional procedures performed during regular hours, with full staffing and resources, generally have better outcomes than overnight procedures with reduced support. Physicians making scheduling decisions can legitimately factor this consideration into the urgent-vs-emergent assessment.
Deferential review applies to expert evidence assessment. Trial judges have meaningful discretion in weighing expert evidence. Appellate courts will not retry cases on the cold record where the trial judge has properly addressed the evidence and reached supportable conclusions. Palpable and overriding error is a high standard; mere disagreement with the conclusions does not meet it.
Anecdotal vs opinion evidence distinctions require foundation. Plaintiffs alleging that defence physician testimony is “anecdotal” rather than properly opinion-based must establish the distinction with evidence and argument. Bare assertion is insufficient. Where the physician’s testimony reflects clinical experience and observation in a recognized professional context, courts will generally treat it as admissible opinion evidence subject to the usual weight considerations.
The appellate cases cluster — six cases
Focken v Miller is the sixth case in the rewritten appellate cluster on this site, and the third BC appellate decision:
- Willick v Willard (Court of Appeal for Ontario): affirmance with deferential review; reasons doctrine
- Hanson-Tasker v Ewart (Court of Appeal for British Columbia): affirmance; competing experts displaced Snell v Farrell adverse inference
- Dumesnil v Jacob (Manitoba Court of Appeal): new trial; trial judge’s SOC analysis wrong as a matter of law
- Penate v Martoglio (Court of Appeal for Ontario): new trial; inadequate reasons for jury discharge + Cojocaru verbatim copying
- Rybakov v Khattak (Court of Appeal for British Columbia): affirmance; expert evidence requirement + non-suit dismissal
- Focken v Miller (Court of Appeal for British Columbia): affirmance; expert evidence incorporates risk assessment + judicial humility on medical questions
BC now anchors three of the six appellate decisions in the cluster, with the BCCA articulating distinctively useful doctrine on expert evidence and the limits of judicial review.
The BC sub-cluster — eight cases
Focken v Miller is the eighth British Columbia case in the cross-province sub-cluster:
- Massie v PHSA: class action certification
- Sheoran v IHA: physician suing hospital after patient assault
- Gilmore v Love: birth injury (skull fractures, real-time informed consent)
- Lal v Anderson: procedural (jury notice)
- Hanson-Tasker v Ewart: appellate (kernicterus causation)
- A.G. v Rivera: birth injury (preterm risk counselling, patient refusal doctrine)
- Rybakov v Khattak: psychiatry / ECT, expert evidence requirement, appellate affirmance
- Focken v Miller (this case): otolaryngology / interventional radiology, expert evidence and judicial humility, appellate affirmance
The BC sub-cluster now provides the most comprehensive single-province coverage in the library, spanning class actions, intentional torts, birth injury (term and preterm), procedural matters, appellate decisions, psychiatry, otolaryngology, and interventional radiology.
Why this case matters
For prospective clients. A bad outcome from a delayed procedure does not necessarily mean the treating physicians breached the standard of care. Where the physicians made a reasoned clinical assessment based on the patient’s stability and the clinical findings, and where qualified expert evidence supports the assessment, the malpractice claim will generally fail. The clinical distinction between urgent and emergent is a real concept that courts respect. For more on the realistic assessment of malpractice claims, see Suing for Medical Malpractice in Ontario: What You Need to Know.
For plaintiff counsel. Focken is a reminder that arguments inviting the court to reweigh foreseeable risk independently — beyond what the experts have considered — are not generally viable. Where the trial expert evidence has gone against the plaintiff, the appellate argument must identify a specific error in the trial judge’s analysis (legal error, palpable and overriding factual error, or material misapprehension of evidence). General arguments that the court should have engaged in its own risk assessment will not succeed. Plaintiff counsel should anticipate the BCCA’s response: the experts have already done that work.
For defence counsel. The case is useful precedent on the appellate framework for malpractice cases. Where defence expert evidence has been accepted at trial and the plaintiff has no contradicting expert evidence, the appellate prospects for the plaintiff are limited. The deferential review framework operates as a substantial barrier to appellate intervention.
For practising clinicians (otolaryngologists, interventional radiologists, ER physicians, hospitalists). The case is a reminder that joint clinical decision-making across specialties — here, ENT plus interventional radiology plus emergency medicine — is well-protected when properly documented and supported by reasoned clinical assessment. The urgent vs emergent classification, made with appropriate foundation in the clinical findings, will generally survive malpractice review. Off-hours considerations are legitimately part of the scheduling analysis.
For more on the expert evidence framework, see Paul’s article on expert witness qualification. For more on the structural importance of expert evidence in malpractice litigation, see Rybakov v Khattak and Beazley v Johnston.
Decision Date: March 1, 2024
Jurisdiction: Court of Appeal for British Columbia
Citation: Focken v Miller, 2024 BCCA 74 (CanLII)
Key authorities: ter Neuzen v Korn, [1995] 3 SCR 674 (expert evidence requirement); Anderson v Chasney, [1949] 4 DLR 71 (SCC) (plainly obvious negligence exception); Wilson v Swanson, [1956] SCR 804 (standard of care framework); Crits v Sylvester, [1956] OR 132 (CA), aff’d [1956] SCR 991 (foundational SOC authorities)
