On February 29, 2020, Paul co-chaired the Ontario Trial Lawyers Association’s annual medical malpractice conference. The program was designed for plaintiff-side practitioners working in this area and featured speakers on three thematic blocks: current developments in the law of expert opinion evidence, strategies to manage common defence tactics in physician-defended files, and high-risk clinical scenarios in the emergency department.
The conference ran about two weeks before the pandemic suspended in-person court operations in Ontario. The issues set out by the speakers proved durable. Several of them intensified through the years that followed rather than receding.
Why a road map for medical malpractice files
Medical malpractice cases occupy their own corner of Ontario civil litigation. They turn on expert evidence (typically multiple experts on each side), they are vigorously defended at the expense of the Canadian Medical Protective Association, they involve specialized medicine that takes months to learn for a given file, and they typically span four to seven years from claim to judgment. None of that is incidental. Each feature creates particular procedural choke points and each requires a deliberate strategy from the plaintiff side.
A road map approach treats the file as a sequence of foreseeable decisions: which experts to retain and when, what discoveries to take and in what order, when to test the defence theory of causation, when to entertain settlement, and when to push toward trial. The value of a conference of this kind is partly the substantive law and partly the chance for practitioners to compare how they make those decisions in similar files.
Expert opinion evidence
By early 2020, the post-White Burgess Langille Inman v Abbott and Haliburton Co., 2015 SCC 23 case law had begun to settle into a recognizable pattern in Ontario. Trial judges were exercising the discretionary gatekeeper role more visibly, expert qualification motions were being argued earlier, and the independence and impartiality requirement was being scrutinized in ways that would have been unusual a decade earlier.
Westerhof v Gee Estate, 2015 ONCA 206, had clarified an issue with practical bite in medical malpractice trials: Rule 53.03 of the Rules of Civil Procedure applies to litigation experts, not to participant experts giving opinions arising from their own treatment of the patient or to non-party experts giving observations from the course of the patient’s care. That distinction matters in almost every medical malpractice trial, because the treating physicians who actually saw the patient are typically the source of the cleanest contemporaneous opinion evidence available.
What the conference focused on, and what continues to be central, is the practical consequence: the plaintiff’s expert evidence has to be built to withstand a gatekeeping challenge from the outset. That includes the selection of the expert, the framing of the questions put to the expert, the contents and tone of the written report, and the expert’s prior conduct in other cases.
Defence tactics in CMPA-funded files
Plaintiff-side practitioners face a structurally well-resourced defence in nearly every Ontario medical malpractice file. The Canadian Medical Protective Association retains experienced counsel and experienced experts, and it does so repeatedly with the same teams across cases. That gives the defence an institutional memory and a depth of resources that plaintiff firms cannot match on a file-by-file basis.
The tactical patterns the conference addressed are familiar to anyone who has tried a medical malpractice case in Ontario. Defence positions on liability are typically narrow and shift slowly. Multiple expert opinions are layered to fragment the plaintiff’s theory of causation. Qualification motions are used aggressively at trial. Summary judgment motions are deployed where the plaintiff’s expert evidence has any soft point. And time is itself a tactical asset for the defence, where the plaintiff is funding the case out of working capital and is the party with an injury still unfolding.
Plaintiff counsel respond to each of those choices with their own deliberate ones. Build a clean trial record from the first pleading. Retain experts early. Lock in defence positions through discovery. Protect the case from being lost to the calendar.
High-risk scenarios in the emergency department
Emergency medicine generates a disproportionate share of medical malpractice claims. The conditions of the work, including undifferentiated presentations, time pressure, handoffs between providers, and limited prior history, are conducive to error in ways that other care settings are not. Several recurring fact patterns came up at the conference and continue to be staples of plaintiff practice.
Triage errors, where a time-sensitive condition is mis-categorized under the Canadian Triage and Acuity Scale and the patient who should have been seen quickly waits too long.
Discharge errors, where a patient with a serious condition such as sepsis, acute coronary syndrome, posterior circulation stroke, ectopic pregnancy, or testicular torsion is sent home without the workup or the consultation that the presentation called for.
Handoff failures between the emergency physician and the admitting service, where a concern raised in the emergency department is not transmitted, acted on, or documented after admission.
Failures to consult specialists in cases where the differential diagnosis includes a condition outside the emergency physician’s scope of practice.
Each of these requires a particular evidentiary build. The plaintiff has to prove what the standard of care required in the specific clinical setting, what was actually done or not done, and how the breach caused the injury despite the often complex medical course that followed. None of that is built at trial. It is built from the first review of the records and the first conversation with the expert.
Practical observations
The road map framing for medical malpractice files is durable. The categories of expert evidence, defence resourcing, and high-risk clinical scenarios are still the categories that organize the work. What has shifted since 2020 is the velocity of the issues within each category, the post-pandemic strain on emergency departments in particular, and the steady accumulation of appellate decisions refining the law on expert evidence and standard of care.
For plaintiff counsel, the value of a CLE conference of this kind is partly the content and partly the network. Medical malpractice is a specialized bar. The cases are difficult, the experts are concentrated, and the people doing the work share a body of knowledge that is not easily acquired in any other way.
