This is a decision of the Saskatchewan Court of Appeal. It is persuasive, but not binding, in Ontario. The Court made no finding of negligence against any physician. It ordered a new trial.
When a medical malpractice trial ends before the defence calls a single witness, families are often stunned. That is what happened to the estate of Harvey Dykstra. The trial judge granted a “non-suit,” which dismissed the claim at the close of the plaintiff’s evidence. In Hander v Kumar, 2022 SKCA 33, the Saskatchewan Court of Appeal reversed that ruling and sent the case back for a new trial.
The decision matters to Ontario patients for two reasons. It explains why a non-suit should rarely end a properly supported malpractice claim. It also raises a question that comes up more often than people expect: what happens when a doctor writes in the chart that they made a mistake?
The Facts
Mr. Dykstra was 82. He had ankylosing spondylitis in his cervical spine, a condition that stiffens the spine and makes it more vulnerable to fracture. In July 2015, he fell and struck his neck on the edge of a bathtub. An X-ray at his local hospital was inconclusive, and the radiologist recommended a CT scan.
Eight days later, he returned with worsening neck pain, weakness in his arms and numbness in his fingers. He was sent to Regina General Hospital for a CT scan. The on-call neurosurgeon reviewed the images, saw no fracture, noted no neurological deficits and discharged him. The evidence at trial was that the neurosurgeon did not speak with the radiologist or the family physician and gave no follow-up instructions.
Mr. Dykstra’s condition worsened. Within three days he had become incontinent. A second neurosurgeon reviewed the same CT images, identified a fracture at C6/7 and suspected an epidural hematoma, a collection of blood pressing on the spinal cord. An MRI confirmed a large hematoma at that level. Emergency surgery did not reverse the damage. Mr. Dykstra was left quadriplegic, and he died in 2020. His daughter carried on the lawsuit for his estate.
Why the Non-Suit Was Overturned
At trial, the plaintiff called a neurosurgeon as an expert witness. He testified that a CT scan is not a sensitive test for an epidural hematoma. He said that, given the patient’s age, his spinal condition, the fall and his worsening symptoms, further investigation such as an MRI was warranted. He was also concerned that there was no communication with the referring and family physicians and no warning to the patient about symptoms to watch for. On causation, he said that with timely investigation, a more favourable outcome was more likely than not.
When the plaintiff closed her case, the defence asked for a non-suit, and the trial judge granted it.
The Court of Appeal held that the trial judge applied the wrong test. A non-suit does not ask whether the evidence persuades the judge. It asks whether a properly instructed, reasonable trier of fact could find for the plaintiff if that evidence were accepted. Where the evidence supports competing inferences, only the inferences favourable to the plaintiff count at this stage. For that point, the Court relied on the Ontario Court of Appeal’s decision in FL Receivables Trust 2002-A v Cobrand Foods Ltd., 2007 ONCA 425.
The trial judge had asked instead whether the evidence satisfied him, and he drew his own conclusions from it. He also did not deal with the expert’s evidence that a different approach would probably have changed the outcome. Causation is often the hardest issue in a delayed diagnosis case. The Supreme Court of Canada has confirmed that the “but for” test applies and that causation can be inferred from the evidence as a whole: Snell v Farrell, [1990] 2 SCR 311; Clements v Clements, 2012 SCC 32; Benhaim v St-Germain, 2016 SCC 48. Overlooking a qualified expert’s causation opinion was a serious error.
The Court concluded that the inferences needed to support liability were available on the evidence. They did not have to be the only possible inferences. The Court allowed the appeal, ordered a new trial and awarded the estate its costs of the appeal and of the first trial.
The Chart Note
The case also raised a striking evidentiary issue. About two weeks after the diagnosis, the first neurosurgeon wrote a progress note recording that he had “failed to diagnose correctly & made a mistake.” The note also said he had told the patient he was sorry and that the missed diagnosis contributed to the patient’s condition.
The defence argued that the note was an apology protected by section 23.1 of Saskatchewan’s The Evidence Act, which makes apologies inadmissible as evidence of fault. The trial judge read the section aloud but never clearly ruled on it. Because the non-suit had to be set aside anyway, the Court of Appeal declined to decide the point. It left the note’s admissibility for the judge at the new trial to decide on a full record.
What This Means in Ontario
Non-suits. Ontario courts apply the same test from FL Receivables. If the plaintiff has led some evidence on each element of the claim, taken as true and given its most favourable meaning, the motion should fail. There is also an important procedural difference. In an Ontario civil trial before a judge alone, a defendant who moves for a non-suit is generally required to elect whether it will call evidence. As a practical matter, this makes non-suit motions less common and less attractive in Ontario judge-alone trials. For families, the lesson is simple. A claim supported by qualified expert evidence on the standard of care and causation should not end halfway through trial.
Building that evidence is the core of any delayed diagnosis claim. Our overview of delayed diagnosis medical malpractice in Ontario explains how these cases are proven.
Apologies. Ontario’s Apology Act, 2009, SO 2009, c 3, defines an apology broadly. It includes expressions of sympathy or regret and statements that a person is sorry, whether or not they admit fault. An apology is not an admission of liability and is not admissible in a civil proceeding as evidence of fault, subject to limited exceptions.
Ontario judges have not treated the Act as a blanket shield for everything said alongside an apology. In Cormack v Chalmers, 2015 ONSC 5599, the court removed the apologetic sentences from a document but allowed the factual statements to stand. Coles v Takata Corporation, 2016 ONSC 4885, took a similar approach to pleadings. We are not aware of a reported Ontario decision that applies the Act to a physician’s chart entry.
How might an Ontario court treat a note like the one in Hander? We would expect a sentence-by-sentence analysis. A plaintiff could argue that a clinical entry recording a missed fracture and its consequences is a statement of fact, not an expression of contrition, and so falls outside the Act. That argument draws support from the College of Physicians and Surgeons of Ontario’s Disclosure of Harm policy, which expects physicians to tell patients what happened and to document the disclosure in the record. The defence would respond that words like “I made a mistake” express regret and are protected. Even if such a note were admitted, it would not replace expert evidence. A physician’s admission does not, by itself, prove that the standard of care was breached or that the breach caused the injury.
Practical Lessons for Patients and Families
Discharge without follow-up deserves scrutiny. Clear return instructions and warning signs are an important part of safe discharge, particularly for older patients with spinal conditions.
Imaging has limits. Published radiology literature on spinal fractures in ankylosing spondylitis supports MRI where there are neurological symptoms. Whether an MRI was required in a particular case is a question for qualified experts in the relevant specialty.
Communication gaps can matter. A failure to speak with the radiologist, the referring physician or the family doctor may form part of a claim if expert evidence supports it.
Get the complete chart. Progress notes written days or weeks after an injury, including any disclosure notes, can become important evidence. Related spinal cases often turn on timing, as our post on cauda equina syndrome and medical malpractice explains.
Act promptly. Ontario’s basic limitation period is generally two years from when you knew, or ought to have known, about the injury and its likely connection to the care you received.
Speak With Paul Cahill
If you or a family member suffered a serious injury after a missed or delayed diagnosis, a discharge without follow-up or a spinal injury that was not identified in time, Paul Cahill can review your situation. Paul is a partner at Davidson Cahill Morrison LLP and is certified by the Law Society of Ontario as a Specialist in Civil Litigation. Every case depends on its own facts and expert evidence. To arrange a confidential consultation, contact Paul.
Hander v Kumar: Appeal Court Revives Missed Spinal Fracture Claim and Clarifies the Non-Suit Test
The Saskatchewan Court of Appeal set aside a non-suit in a claim over a missed cervical fracture and epidural hematoma and ordered a new trial. The Court also left open whether a neurosurgeon's chart note admitting a missed diagnosis is protected by apology legislation. Paul Cahill explains what the decision means for Ontario patients.
This is a decision of the Saskatchewan Court of Appeal. It is persuasive, but not binding, in Ontario. The Court made no finding of negligence against any physician. It ordered a new trial.
When a medical malpractice trial ends before the defence calls a single witness, families are often stunned. That is what happened to the estate of Harvey Dykstra. The trial judge granted a “non-suit,” which dismissed the claim at the close of the plaintiff’s evidence. In Hander v Kumar, 2022 SKCA 33, the Saskatchewan Court of Appeal reversed that ruling and sent the case back for a new trial.
The decision matters to Ontario patients for two reasons. It explains why a non-suit should rarely end a properly supported malpractice claim. It also raises a question that comes up more often than people expect: what happens when a doctor writes in the chart that they made a mistake?
The Facts
Mr. Dykstra was 82. He had ankylosing spondylitis in his cervical spine, a condition that stiffens the spine and makes it more vulnerable to fracture. In July 2015, he fell and struck his neck on the edge of a bathtub. An X-ray at his local hospital was inconclusive, and the radiologist recommended a CT scan.
Eight days later, he returned with worsening neck pain, weakness in his arms and numbness in his fingers. He was sent to Regina General Hospital for a CT scan. The on-call neurosurgeon reviewed the images, saw no fracture, noted no neurological deficits and discharged him. The evidence at trial was that the neurosurgeon did not speak with the radiologist or the family physician and gave no follow-up instructions.
Mr. Dykstra’s condition worsened. Within three days he had become incontinent. A second neurosurgeon reviewed the same CT images, identified a fracture at C6/7 and suspected an epidural hematoma, a collection of blood pressing on the spinal cord. An MRI confirmed a large hematoma at that level. Emergency surgery did not reverse the damage. Mr. Dykstra was left quadriplegic, and he died in 2020. His daughter carried on the lawsuit for his estate.
Why the Non-Suit Was Overturned
At trial, the plaintiff called a neurosurgeon as an expert witness. He testified that a CT scan is not a sensitive test for an epidural hematoma. He said that, given the patient’s age, his spinal condition, the fall and his worsening symptoms, further investigation such as an MRI was warranted. He was also concerned that there was no communication with the referring and family physicians and no warning to the patient about symptoms to watch for. On causation, he said that with timely investigation, a more favourable outcome was more likely than not.
When the plaintiff closed her case, the defence asked for a non-suit, and the trial judge granted it.
The Court of Appeal held that the trial judge applied the wrong test. A non-suit does not ask whether the evidence persuades the judge. It asks whether a properly instructed, reasonable trier of fact could find for the plaintiff if that evidence were accepted. Where the evidence supports competing inferences, only the inferences favourable to the plaintiff count at this stage. For that point, the Court relied on the Ontario Court of Appeal’s decision in FL Receivables Trust 2002-A v Cobrand Foods Ltd., 2007 ONCA 425.
The trial judge had asked instead whether the evidence satisfied him, and he drew his own conclusions from it. He also did not deal with the expert’s evidence that a different approach would probably have changed the outcome. Causation is often the hardest issue in a delayed diagnosis case. The Supreme Court of Canada has confirmed that the “but for” test applies and that causation can be inferred from the evidence as a whole: Snell v Farrell, [1990] 2 SCR 311; Clements v Clements, 2012 SCC 32; Benhaim v St-Germain, 2016 SCC 48. Overlooking a qualified expert’s causation opinion was a serious error.
The Court concluded that the inferences needed to support liability were available on the evidence. They did not have to be the only possible inferences. The Court allowed the appeal, ordered a new trial and awarded the estate its costs of the appeal and of the first trial.
The Chart Note
The case also raised a striking evidentiary issue. About two weeks after the diagnosis, the first neurosurgeon wrote a progress note recording that he had “failed to diagnose correctly & made a mistake.” The note also said he had told the patient he was sorry and that the missed diagnosis contributed to the patient’s condition.
The defence argued that the note was an apology protected by section 23.1 of Saskatchewan’s The Evidence Act, which makes apologies inadmissible as evidence of fault. The trial judge read the section aloud but never clearly ruled on it. Because the non-suit had to be set aside anyway, the Court of Appeal declined to decide the point. It left the note’s admissibility for the judge at the new trial to decide on a full record.
What This Means in Ontario
Non-suits. Ontario courts apply the same test from FL Receivables. If the plaintiff has led some evidence on each element of the claim, taken as true and given its most favourable meaning, the motion should fail. There is also an important procedural difference. In an Ontario civil trial before a judge alone, a defendant who moves for a non-suit is generally required to elect whether it will call evidence. As a practical matter, this makes non-suit motions less common and less attractive in Ontario judge-alone trials. For families, the lesson is simple. A claim supported by qualified expert evidence on the standard of care and causation should not end halfway through trial.
Building that evidence is the core of any delayed diagnosis claim. Our overview of delayed diagnosis medical malpractice in Ontario explains how these cases are proven.
Apologies. Ontario’s Apology Act, 2009, SO 2009, c 3, defines an apology broadly. It includes expressions of sympathy or regret and statements that a person is sorry, whether or not they admit fault. An apology is not an admission of liability and is not admissible in a civil proceeding as evidence of fault, subject to limited exceptions.
Ontario judges have not treated the Act as a blanket shield for everything said alongside an apology. In Cormack v Chalmers, 2015 ONSC 5599, the court removed the apologetic sentences from a document but allowed the factual statements to stand. Coles v Takata Corporation, 2016 ONSC 4885, took a similar approach to pleadings. We are not aware of a reported Ontario decision that applies the Act to a physician’s chart entry.
How might an Ontario court treat a note like the one in Hander? We would expect a sentence-by-sentence analysis. A plaintiff could argue that a clinical entry recording a missed fracture and its consequences is a statement of fact, not an expression of contrition, and so falls outside the Act. That argument draws support from the College of Physicians and Surgeons of Ontario’s Disclosure of Harm policy, which expects physicians to tell patients what happened and to document the disclosure in the record. The defence would respond that words like “I made a mistake” express regret and are protected. Even if such a note were admitted, it would not replace expert evidence. A physician’s admission does not, by itself, prove that the standard of care was breached or that the breach caused the injury.
Practical Lessons for Patients and Families
Discharge without follow-up deserves scrutiny. Clear return instructions and warning signs are an important part of safe discharge, particularly for older patients with spinal conditions.
Imaging has limits. Published radiology literature on spinal fractures in ankylosing spondylitis supports MRI where there are neurological symptoms. Whether an MRI was required in a particular case is a question for qualified experts in the relevant specialty.
Communication gaps can matter. A failure to speak with the radiologist, the referring physician or the family doctor may form part of a claim if expert evidence supports it.
Get the complete chart. Progress notes written days or weeks after an injury, including any disclosure notes, can become important evidence. Related spinal cases often turn on timing, as our post on cauda equina syndrome and medical malpractice explains.
Act promptly. Ontario’s basic limitation period is generally two years from when you knew, or ought to have known, about the injury and its likely connection to the care you received.
Speak With Paul Cahill
If you or a family member suffered a serious injury after a missed or delayed diagnosis, a discharge without follow-up or a spinal injury that was not identified in time, Paul Cahill can review your situation. Paul is a partner at Davidson Cahill Morrison LLP and is certified by the Law Society of Ontario as a Specialist in Civil Litigation. Every case depends on its own facts and expert evidence. To arrange a confidential consultation, contact Paul.
Paul Cahill
Partner, Davidson Cahill Morrison LLP | LSO Certified Specialist in Civil Litigation
Paul represents victims of medical malpractice across Ontario, with trial experience including a $11.5M jury verdict in a birth injury case. He is recognized in Best Lawyers in Canada and serves as trial counsel to other lawyers on complex medical negligence matters.
About PaulMore on medical malpractice in Ontario.
Other articles by Paul exploring the conditions, decisions, and systems behind preventable medical harm.
When the Hospital Investigates Itself: What a Critical Incident Review Can and Cannot Tell an Ontario Family
A Winnipeg family waited eight months for a report into a death after an eleven-hour emergency room wait, and says it left more questions than answers. Ontario families face the same gap. What QCIPA requires a hospital to disclose, what it protects, and why the medical record matters more than the report.
Antepyan-Ruckenstein v Cadili: A Foreign Expert, a Video Blog, and a Claim Dismissed
The Supreme Court of British Columbia dismisses a maxillomandibular advancement claim brought by a self-represented plaintiff. An American expert who could not identify the Royal College of Dentists of Canada, a seven-hour video log that contradicted the plaintiff’s trial evidence, and an adverse inference the court declined to draw.
Asking Patients to Waive the Right to Sue: Commentary in the National Post
National Post coverage of Dr. Michael Hart, the London, Ontario physician suspended for six months over his ketamine prescribing and for asking patients to sign away their right to sue him or complain to the College. Paul Cahill comments on why that document is an alarm bell, how it differs from an ordinary surgical consent form, and where a College proceeding ends and a civil claim begins.