Medical negligence is the legal cause of action that underpins most medical malpractice claims in Ontario. To establish liability in medical negligence, a plaintiff must prove three elements: that the defendant owed a duty of care to the patient, that the defendant’s conduct fell below the standard of care a reasonable practitioner in the same circumstances would have met, and that the breach caused or materially contributed to the plaintiff’s injury. The framework is the same general negligence framework applied to other tort cases, but its application in the medical context is shaped by the requirement of expert evidence at every step.
Medical negligence is distinct from related but separate theories of liability that can arise on the same facts: battery, where a procedure is performed without any consent at all; failure of informed consent in negligence, where consent was given but the disclosure was inadequate; vicarious liability, where one party is responsible for the conduct of another; and direct institutional liability, where the hospital itself is sued for its systems and processes.
Posts tagged Medical Negligence analyze Ontario decisions on the core negligence framework: duty, breach, and causation, in cases against physicians, nurses, hospitals, and other regulated health professionals.
A settlement on behalf of a 40-year-old woman whose hysterectomy was described as uncomplicated but resulted in injuries to both ureters and chronic disability.
A settlement on behalf of a woman in her 60s whose family physician dismissed three years of GI symptoms despite a known family history of colon cancer.
How to cross-examine the defence expert and advance your case theory. From the 2024 OBA Anatomy of a Trial continuing professional development program.
Composite card pairing the Medico-Legal Society of Toronto crest with the title Causation in Systemic Medical Negligence, on Paul Cahill’s navy brand panel.
Paul Cahill’s Winter 2023/2024 Litigator article on finding the right expert, navigating Westerhof and the Mohan/White Burgess framework, and surviving defence challenges to expert evidence at trial.
When can a defendant compel genetic testing in a medical malpractice claim? An analysis of Klinck v Dorsay and Preece v Nicholson from a 2023 OTLA paper.
A settlement on behalf of the family of a 39-year-old mother of two whose breast cancer was diagnosed too late after a missed opportunity to investigate.
The Court of Appeal upholds the use of epidemiological evidence to infer causation across a class of patients harmed by a physician’s IPAC failures.
The College of Physicians and Surgeons of Ontario (“CPSO”) regulates the practice of medicine in Ontario. Physicians are required to be members of the CPSO to practice medicine. The role of the CPSO, its authority and powers are set out in the Regulated Health Professions Act (“RHPA”), the Health Professions Procedural Code under the RHPA and the Medicine Act.
A missed diagnosis of compartment syndrome cost a patient her leg. The trial judge found the ER physician breached the standard of care.
A plaintiffs’ motion to pierce litigation privilege over expert communications fails despite real credibility concerns about a defendant doctor’s evidence.
Most bad outcomes in medicine are not malpractice. After two decades of these cases in Ontario, here are the signs worth taking seriously.
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