Hander v Kumar: Retrial Dismisses Claim but Splits the Apology from the Admission

This is a decision of the Court of King’s Bench for Saskatchewan. It is persuasive, but not binding, in Ontario. Costs remain to be decided, and it is not yet known whether the estate will appeal.

Earlier this month, the Court of King’s Bench for Saskatchewan released its judgment in the retrial of Hander v Kumar, 2026 SKKB 161. The case had already been to the Court of Appeal once. In 2022, that court set aside a non-suit and sent the claim back for a new trial. At the retrial, both sides called expert neurosurgeons, and the claim was dismissed.

Two parts of the decision deserve attention from Ontario patients and families. The first is how the court handled a neurosurgeon’s chart note recording that he had told the patient he “failed to diagnose correctly and made a mistake.” The second is the gap between surviving a non-suit and proving negligence at trial.

The Facts

Harvey Dykstra was 82, lived independently in Weyburn, Saskatchewan, and had ankylosing spondylitis, a condition that stiffens and fuses the spine. On July 29, 2015, he fell and struck his neck on the edge of his bathtub. An X-ray at his local hospital was inconclusive, and a CT scan was recommended.

On August 7, 2015, still complaining of neck pain, weakness and numbness in his fingers, he was sent to Regina General Hospital for the CT scan. He arrived by car, without his chart or a formal referral. The on-call neurosurgeon, who had just finished a day in the operating room, took a history, examined him, reviewed the CT images and found no neurological deficits and no fracture requiring treatment. The radiologist’s written report was not available until two days later. Mr. Dykstra was discharged and went straight back to his local hospital, where he was admitted.

Over the weekend, his condition deteriorated. On August 10, a physiotherapist raised the alarm. A second neurosurgeon in Regina ordered an MRI, which showed a large epidural hematoma, a collection of blood compressing the spinal cord at C6/7. Regina could not perform the surgery, so he was flown to Saskatoon and operated on the next day. The surgery removed the hematoma but could not reverse the damage. Mr. Dykstra was left permanently paralyzed and spent his remaining years in a care home. He died in 2020, and his daughter carried on the lawsuit for his estate.

On August 23, 2015, the first neurosurgeon visited Mr. Dykstra with a nurse, apologized, and wrote a progress note about the conversation.

The Apology Note: Split, Not Shielded

Saskatchewan’s The Evidence Act makes an apology inadmissible as evidence of fault. The defence argued that the whole progress note was an apology. The plaintiff argued that the whole note was admissible, partly because it formed part of the medical record. Justice Mitchell accepted neither position.

The court read the note sentence by sentence. The sentence in which the neurosurgeon told the patient he was extremely sorry for missing the diagnosis was a true apology and was excluded. The court went out of its way to commend his empathy. But the surrounding statements of fact were admitted, including the line recording that he had told the patient he failed to diagnose correctly and made a mistake, and a line suggesting there could be technical reasons for the miss. The court treated these as admissions of fact from which liability might be inferred.

The court also rejected the defence argument that admitting the note would discourage physicians from apologizing. In its view, an apology placed inside a longer document does not immunize the rest of that document. Otherwise a person could admit and explain wrongdoing, then avoid its consequences simply by adding the word sorry.

Why the Claim Was Still Dismissed

Admitting part of the note did not win the case. The court held that the admitted statements, read in context, reflected the neurosurgeon’s sincere self-recrimination after a terrible outcome rather than an acknowledgement that he had fallen below the standard of care. Relying on Alberta and Ontario authority, the court repeated a principle familiar to every malpractice lawyer: a wrong diagnosis is not, by itself, negligence. The question is whether the physician acted as a reasonable specialist would have in the same circumstances, judged without hindsight.

On that question, the expert evidence was decisive. The defence expert, a complex spine neurosurgeon, testified that the examination was appropriate and that it was not unreasonable to miss the hematoma on the CT scan. His main criticism was that the charted history was too brief, which he did not consider a breach of the standard of care.

The plaintiff’s expert raised real concerns, including the thin documentation, the lack of a transfer note to the family physician, and the value of admission and monitoring. But in cross-examination he made important concessions. He agreed that the hematoma was not visible on the CT scan, that discharge with appropriate supports was within the standard of care if the patient was neurologically intact, and that without neurological deficits it was reasonable not to order an MRI. He did not say the hematoma could have been detected on August 7. The court found nothing in the evidence suggesting the patient was not neurologically intact that day.

The court therefore found that the standard of care had not been breached and dismissed the action.

Comments on Causation

Although it did not need to decide causation, the court added that even if it had found the neurosurgeon negligent, it would have assigned him only a small share of the fault. It pointed to the weekend at the local hospital, where the alarm was raised only by a physiotherapist on the Monday, and to the systemic delay caused by Regina’s lack of surgical capacity. These comments are not binding findings, but they are a warning about how responsibility can be spread across several people and institutions.

What This Means in Ontario

Apologies. Ontario’s Apology Act, 2009, SO 2009, c 3, is similar to the Saskatchewan provision, and the court’s approach was built largely on Ontario decisions, including Cormack v Chalmers, 2015 ONSC 5599 and Coles v Takata Corporation, 2016 ONSC 4885. Hander now appears to be one of the clearest Canadian examples of a court applying that contextual approach to a physician’s own chart note. Ontario courts are not bound by it, but it is likely to be cited. For patients, the practical point is that a physician’s written disclosure after a harmful event may contain admissible statements of fact, even where the expression of regret itself is protected. Obtaining the complete chart, including notes written after the injury, matters. Our guide to the importance of medical records in malpractice cases explains why.

Admissions are not proof. Even an admitted statement that a doctor made a mistake, in the everyday sense of the words, does not establish negligence in the legal sense. That still requires expert evidence that the care fell below the standard of a reasonable practitioner, and that the breach caused the injury. This is one of the most common misunderstandings about medical malpractice in Ontario.

Surviving a non-suit is not winning. In 2022, the Court of Appeal held that the plaintiff’s evidence, taken at its highest, could support liability. At trial, that same evidence was tested by cross-examination and weighed against a competing expert. Concessions made under cross-examination often decide these cases.

Name everyone whose care may have contributed. The court’s causation comments pointed to other caregivers and institutions who were not defendants. In Ontario, as in Saskatchewan, fault can be divided among several wrongdoers. With supporting expert opinion, a claim should generally name every physician, nurse and hospital whose care may have contributed, and do so within the limitation period.

A Judge’s Discomfort

The judgment closes with unusual candour. The court agreed with counsel that Mr. Dykstra deserved better, described the result as one that left it uncomfortable, and noted that the defence expert himself said this patient population frightened him. The court then recalled two Ontario judges, Justice Linden in Davidson v Connaught Laboratories (1980) and Justice Krever in Ferguson v Hamilton Civic Hospitals (1983), who called decades ago for a way to compensate patients who suffer catastrophic harm without proven fault. The court observed that little has changed. In Ontario, as in Saskatchewan, compensation for medical injury still depends on proving negligence.

For a related Saskatchewan appellate decision on causation in a delayed referral case, see our comment on Lorencz v Talukdar.

Speak With Paul Cahill

If you or a family member suffered a serious injury after a missed or delayed diagnosis, Paul Cahill can review what happened, what the records show and whether qualified experts are likely to support a claim. 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.