The Cross-Province tag collects case comments on decisions from outside Ontario that bear on Ontario medical malpractice litigation. Although Ontario is governed by its own Rules of Civil Procedure and its own appellate decisions, courts in this province routinely consider authority from British Columbia, Alberta, Saskatchewan, Manitoba, the Atlantic provinces, and the federal level, particularly on questions of standard of care, causation, and the admissibility of expert evidence.
Decisions of the Supreme Court of Canada are binding on Ontario courts. Decisions of other provincial appellate courts are persuasive only, but Ontario judges often look to them when no Ontario decision is on point or when the foreign court has analyzed an issue more thoroughly. The Supreme Court of British Columbia’s medical malpractice docket, in particular, generates a steady stream of decisions on standard of care and causation that Ontario counsel watch closely.
Posts tagged Cross-Province analyze decisions from other Canadian jurisdictions for what they signal about how Ontario courts may approach the same issue. Each post identifies the source jurisdiction and notes the binding-versus-persuasive distinction.
An Alberta court found that an urgent C-section taking 101 minutes fell below the standard of care, that two physicians’ combined 50 minutes of unnecessary delay was not a defensible judgment call, and that the delay caused a child’s cerebral palsy. A look at the timeliness standard, the causation reasoning, and why this Alberta decision is persuasive, not binding, in Ontario.
Dr. Bailey admitted that her management of labour was negligent and that it caused a hypoxic brain injury at birth. The plaintiffs still lost, because they could not prove that the brain injury caused the child’s lasting impairments. JB v Bailey is an Alberta decision, persuasive only in Ontario, but it is a clear reminder that admitted negligence and admitted injury are not the same as proven causation.
A widow’s appeal in a death after delayed embolization for a lingual artery pseudoaneurysm. The BC Court of Appeal affirmed dismissal on the standard of care.
A claim alleging that psychiatrists failed to disclose dose increases during a course of ECT was dismissed mid-trial for absence of expert evidence. The BC Court of Appeal affirmed.
A birth injury claim alleging failure to discuss antenatal steroids and resuscitation in a 25-week preterm risk situation was dismissed. The discussion was attempted; the patient declined to engage.
A self-represented plaintiff’s negligence and informed consent claims against an OBGYN were dismissed on summary judgment for lack of expert evidence.
The Manitoba Court of Appeal ordered a new trial after a general surgeon was held to too low a standard for orthopedic trauma surgery, and after the trial judge relied on an undisclosed journal article.
A proposed class action against the Moncton Hospital and a fired nurse over allegedly unprescribed oxytocin was denied certification because individual issues would predominate.
Three 2023 decisions from Alberta, Ontario, and Newfoundland show why self-represented plaintiffs almost never succeed in medical malpractice litigation.
A pre-term newborn with kernicterus lost her causation case despite a finding that her family physicians had breached the standard of care. The Snell adverse inference did not save the claim.
A surgeon admitted he stopped a colonoscopy without finding the cancer. The trial judge held the death was inevitable but awarded damages for additional suffering.
A defence motion to strike a jury notice was dismissed in a complex BC birth injury case involving 31 expert reports and 35 anticipated witnesses.
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