One of the hardest conversations I have is telling someone I cannot represent them.
People reach out because something terrible has happened. A loved one died. A child was injured at birth. A diagnosis was missed and the consequences became permanent. A procedure went wrong. The expectation, understandably, is that the law will provide a way forward. The lawyer’s role is to assess whether that expectation can be realized in this particular case, and the answer is often no.
This post explains why. The framework is not unique to my firm; it reflects the realities of medical malpractice law in Ontario as it actually operates. Most malpractice consultations do not result in a lawsuit, and the reasons are usually structural rather than personal. Understanding the structural reasons can help people in difficult moments make sense of an outcome that may feel unjust.
I should say at the outset that the law’s “no” is not a comment on the patient’s experience. People with declined cases often have legitimate concerns about the care they or their family member received. The care may have been disappointing, even seriously deficient by ordinary human standards. The legal question is narrower. The legal question is whether the care can be shown, on the balance of probabilities, to have fallen below the standard of practice in the relevant field, and whether the breach caused harm that the law can compensate. Where the answer to either question is no, the case typically does not proceed.
The first barrier — bad outcomes are not, by themselves, negligence
The most common misconception I encounter is the belief that a bad outcome means someone did something wrong. This is understandable. When you lose a parent to a diagnosis that should have been caught, or when a child has a permanent disability arising from a delivery, the human response is to look for someone who failed. The framework of medical practice, however, includes a substantial space for bad outcomes that are not anyone’s fault.
Medicine is fundamentally uncertain. The diagnostic process works with incomplete information. Symptoms overlap across many conditions. Tests have false positives and false negatives. Treatments have side effects. The natural history of disease produces severe outcomes even when care is appropriate. Surgical procedures have recognized complications that occur in a predictable percentage of cases regardless of the surgeon’s skill. Resuscitation efforts sometimes fail. The framework of medicine treats all of these as part of the practice rather than as failures requiring legal recourse.
The legal framework for medical malpractice is calibrated to this clinical reality. The question is not whether the outcome was bad; the question is whether the care fell below the standard. A surgeon who performs a procedure with the skill of a reasonable specialist and obtains an outcome at the bad end of the recognized range has not necessarily breached the standard of care. An emergency physician who works through a complex differential and chooses the most probable diagnosis has not necessarily breached the standard of care, even if the rare diagnosis turns out to be the correct one.
The case comments I have published on this site illustrate the framework in both directions. In some recent decisions, the courts have found in favour of defendants because the outcome, while serious, was within the recognized range of non-negligent results. The pattern recurs across surgical, emergency department, and procedural cases. Recognized complications, low-probability conditions that did not present with their typical features, and adverse outcomes despite reasonable management are all part of the framework.
The second barrier — the standard of care
The standard of care is often the central question in malpractice litigation. The framework asks whether the care provided was within the range of what a reasonable specialist in the relevant field would have provided in the circumstances. It is not the question whether better care was possible; the framework explicitly recognizes that more than one approach can meet the standard. It is the question whether the approach taken fell outside the range of reasonable practice.
Cases are commonly declined at the standard of care stage because:
- The care fell within an acceptable range of medical judgment, even if the outcome was disappointing
- The condition was genuinely difficult to diagnose at the time
- The symptoms were vague, non-specific, or did not match the typical presentation of the underlying condition
- The decisions made at the time were medically defensible on the information then available
Hindsight does a great deal of work in malpractice cases. The patient’s family knows the diagnosis with the clarity of subsequent imaging, autopsy, or specialist consultation. The treating physician, by contrast, was working with a snapshot in time. The courts assess care based on what was known or knowable to the physician at the relevant moment, not what became clear later. This calibration is well-established and has been reaffirmed in countless Canadian decisions.
The standard of care framework operates with the help of expert evidence. Both sides typically call experienced practitioners in the relevant field who address whether the care met or fell below the standard. Where the experts agree that the care was within the range of reasonable practice, the case typically does not advance regardless of the outcome. Where the experts disagree, the trier of fact (judge or jury) ultimately decides which expert is more persuasive.
What this means in practice is that a case requires not just a clinical concern but a clinical concern supported by qualified expert evidence that the standard of care was breached. The framework is rigorous because the framework is meant to protect both the patient and the physician. Patients receive recourse where standards were not met; physicians are not held liable for the inherent uncertainties of medical practice.
The third barrier — causation
In my experience, causation is the single most common reason a case is declined. Many consultations involve clearly disappointing care, or care that may have fallen short of what a reasonable specialist would have done. The question that often defeats the case is whether the disappointing care actually caused the bad outcome.
The Canadian framework for causation in malpractice litigation is the but-for test articulated by the Supreme Court of Canada in Clements v Clements, 2012 SCC 32. The framework asks: but for the breach of the standard of care, would the harm have occurred on the balance of probabilities? Where the answer is yes (the harm would have occurred even if the standard had been met), causation is not established and the case does not succeed regardless of the breach.
The framework defeats more cases than most people realize. Several distinct patterns recur:
Temporal mismatch. The breach occurred at one point in time; the harm became inevitable at an earlier or later point. Where the breach did not occur within the window during which intervention could have changed the trajectory, the framework supports a no-causation finding.
Already-progressed disease. The patient presented with a condition that had already progressed to a point where the outcome was determined regardless of subsequent care. Earlier diagnosis would not have changed the trajectory because the framework for treatment at that stage would have been the same.
Counterfactual indistinct. The clinical pathway that would have followed appropriate care is too speculative to support the causation finding. Where neither side can establish, on the balance of probabilities, what would have happened with appropriate care, the burden falls on the plaintiff and the case fails.
Same treatment would have followed. The treatment that would have been provided after the alleged correct diagnosis or appropriate intervention would have been the same treatment that was actually provided. The breach did not change the substantive trajectory.
The case comments I have published illustrate the framework at work. Several recent defendant trial wins in delayed-diagnosis cases turned on causation rather than on standard of care. The clinical concern about timing or assessment was sometimes legitimate; the case nonetheless failed because the evidence could not establish that earlier or different care would have changed the outcome.
The counterfactual analysis is sometimes uncomfortable to do in real human terms. We are asking, in effect: if everything had gone the way you say it should have gone, would the loved one still be alive? Would the injury have been avoided? The question is necessary because the law requires it; the human dimension does not change the analytical framework.
For more on the framework for causation and the related complexity in medical malpractice cases, see Suing for Medical Malpractice in Ontario: What You Need to Know.
The fourth barrier — damages must justify the cost of litigation
Medical malpractice litigation is expensive. The financial framework operates as a substantial real-world constraint on which cases can practically be pursued. The typical case requires:
- Extensive review of the medical records (often hundreds or thousands of pages)
- Engagement of multiple independent medical experts (sometimes four to six experts across different specialties)
- Examinations for discovery, often of multiple parties
- Years of procedural steps before trial
- A multi-week trial with expert witnesses
- Significant financial commitment by the law firm to disbursements
The work is generally taken on contingency, meaning the firm is paid only on a successful outcome. The framework for contingency fee retainers is regulated under the Solicitors Act, RSO 1990, c S.15 and the Contingency Fee Agreements Regulation. The framework permits these retainers but operates within specific limits. The firm bears the financial risk of the case along with the work investment.
The practical consequence is that cases require sufficient damages to justify the investment. Cases are routinely declined where:
- The injury is temporary and has resolved
- The functional impact is minimal or modest
- The economic loss is small
- The litigation cost would exceed the realistic recovery
This can be the hardest part of the conversation. A family may have experienced something serious, may have legitimate concerns about the care, and may have a viable claim on the law. But if the realistic damages do not justify the years of litigation and the substantial cost, the case may not be one I can take. This is not a comment on the family’s experience or the importance of the underlying concerns; it is the practical reality of malpractice litigation in this jurisdiction.
The framework operates differently for catastrophic cases (death, permanent disability, severe long-term care needs). The damages in those cases can be substantial, and the framework supports the investment of litigation resources. Recent trial decisions in catastrophic injury cases have produced awards in the multi-million-dollar range, with the largest components typically being lifetime care costs and lost earning capacity. These cases warrant the litigation investment because the recovery, where successful, can fundamentally support the catastrophically injured person over the balance of their life.
The fifth barrier — expert support may not be available
Medical malpractice cases almost always depend on expert medical evidence. The framework requires the plaintiff to call qualified experts in the relevant field who will testify that the care fell below the standard and (in causation cases) that earlier or different care would have changed the outcome. Without expert support, the case cannot succeed regardless of how the care appears to a layperson.
Cases are sometimes declined because:
- No qualified expert is willing to criticize the care
- The available expert opinion is divided or uncertain
- The medicine, as a discipline, supports the defence position
- The experts who could provide opinion evidence are unavailable due to conflicts, distance, or specialty considerations
The Canadian medical community is small enough that finding qualified experts can be challenging. Specialists are often colleagues, sometimes friends. The willingness to provide opinion evidence against another physician varies. The framework requires the expert to be candid, but the human reality is that some excellent clinicians will not provide opinion evidence in litigation contexts.
Where expert evidence is available, the framework requires the expert to be qualified (specialist in the relevant field), independent (not a hired gun), and credible (positions held are defensible on cross-examination). The framework for expert evidence was articulated by the Supreme Court of Canada in White Burgess Langille Inman v Abbott and Haliburton Co, 2015 SCC 23, and is rigorously applied in malpractice litigation.
The defence side has substantial resources for expert evidence. The Canadian Medical Protective Association (CMPA) defends most physician malpractice claims in Canada and has well-established networks of expert witnesses across all specialties. The plaintiff has to find experts independently, often through specialist networks built up over years of practice. The asymmetry is real and has practical consequences for case evaluation.
The sixth barrier — limitation periods
Some cases are declined because too much time has passed. Ontario operates under the Limitations Act, 2002, SO 2002, c 24, Sch B, which establishes the framework for when a malpractice claim can be commenced.
The framework includes two key periods:
The basic two-year limitation period. A claim must be commenced within two years of the day on which the claim was discovered. Discovery is defined by the Limitations Act and turns on when the plaintiff knew or ought to have known the relevant facts about the injury, its cause, and the identity of the responsible person.
The ultimate fifteen-year limitation period. Regardless of when the claim is discovered, the Act establishes an ultimate limitation of fifteen years from the underlying event. The ultimate period operates as a back-stop to prevent indefinitely deferred claims.
The framework can be more complex in particular cases. Limitation periods can be tolled or extended in specific circumstances (minors, persons under disability, others). The discoverability framework can be contested where the plaintiff has had access to some information but not enough to support a claim. The framework for catastrophic injury cases involving minors operates with extended periods reflecting the practical realities of childhood injury cases.
What this means in practice is that timing matters. Where a family is considering a malpractice claim, the earlier they consult a lawyer, the better. Cases that have crossed a limitation period are often not recoverable regardless of their underlying merits. The framework is rigorous because the framework is meant to provide procedural certainty for both sides.
For more on the framework for limitation periods and the timing considerations, see Suing for Medical Malpractice in Ontario: What You Need to Know.
Systemic problems are real but they do not always translate into legal liability
Families I speak with often describe experiences that include real systemic problems in the healthcare system. Overcrowded emergency departments. Hallway medicine. Staffing shortages. Communication breakdowns. Delays caused by capacity constraints. These problems are real and they are concerning. The Ontario Auditor General’s reports on emergency department performance have documented them in detail.
The legal framework, however, does not treat systemic problems as sufficient on their own to support a malpractice claim. The framework requires the plaintiff to identify a specific breach of the standard of care by a specific physician, nurse, or institution, and to show that the specific breach caused specific harm. Systemic concerns can provide the context for the breach (the overcrowded ED that made monitoring inadequate; the staffing shortage that delayed escalation) but the framework requires more than context. It requires identifiable individual or institutional breach and causation.
I have written separately about how this framework operates in the emergency department context in Hallway Medicine in Ontario: When Overcrowded Emergency Rooms Lead to Medical Malpractice. The short version is that the standard of care does not bend because the system is in crisis. The system can fail; the individual standard remains. Where the system has failed in a way that produces an identifiable individual breach causing harm, the case can proceed. Where the system has failed in a way that produces a tragic outcome without an identifiable individual breach, the framework typically does not support a malpractice claim.
This is one of the more difficult aspects of the framework to communicate. Families often feel, rightly, that the system has failed them. The framework asks the narrower question of whether the failure can be tied to specific actionable conduct.
The CMPA defence context
A point that the original framework for this discussion sometimes leaves out is the structural reality of the defence in Canadian medical malpractice litigation. Most physicians in Canada are members of the Canadian Medical Protective Association, which defends physician members in malpractice claims. The CMPA is a well-resourced organization with extensive experience in malpractice litigation, established networks of defence counsel and expert witnesses, and a strategic framework that supports rigorous defence of claims.
The framework does not produce settlement just because the plaintiff has a viable claim. Cases that proceed are vigorously defended. The defence will challenge the standard of care evidence, the causation evidence, and the damages assessment at every stage. Cases that go to trial face well-prepared defence counsel and credible defence experts. The framework rewards rigorous case preparation on the plaintiff side and tends to defeat under-prepared or weaker cases.
The asymmetry between the plaintiff side (working on contingency, with the firm’s resources at risk) and the defence side (institutionally resourced through the CMPA) shapes the case evaluation framework in practice. Cases that may be viable but are not strong tend not to settle and tend not to win at trial. The framework supports cases that are strong, well-prepared, and well-supported by expert evidence.
This context informs my approach to case evaluation. I am looking not just for whether a case is technically viable but for whether the case is strong enough to navigate the CMPA defence framework over years of litigation. Where the case is borderline, the framework tends to defeat it. Where the case is strong, the framework can produce meaningful outcomes for the plaintiff.
What characterizes the cases that do proceed
Given the framework above, what does a case that I can take on typically look like?
Catastrophic injury with clear breach. The cases that warrant the investment of litigation resources typically involve significant long-term injury or death, with a clear breach of the standard of care, and a clear causation pathway from breach to harm. The damages have to be substantial enough to justify the litigation cost, and the breach has to be clear enough to support strong expert opinion.
Clear documentation of the breach. The framework for proof requires the breach to be establishable on the contemporaneous record. Where the contemporaneous record clearly demonstrates the breach (the missed diagnosis, the delayed escalation, the failed risk assessment, the discharge against the standard), the case has a stronger foundation. Where the documentation is sparse or ambiguous, the framework can permit adverse inferences against the defence, but the case is harder.
Identifiable causation pathway. The framework requires the plaintiff to show, through expert evidence, what would have happened with appropriate care. The strongest cases include a specific clinical pathway that would have been followed and a specific outcome that would have resulted. The framework supports cases where the counterfactual is clear and supportable.
Strong expert support. The case needs to be backed by qualified, credible, independent experts who can support the standard of care position and the causation position. Where the expert support is robust, the case has a strong foundation. Where the support is divided or weak, the case is harder.
Capacity for the litigation. The plaintiff or family needs to be able to engage with the process over the years it takes to litigate. The framework requires examinations for discovery, document production, expert engagement, and ultimately trial. The capacity dimension is human, not legal, but it matters.
The patterns I have seen in recent successful trial decisions, including some of the largest plaintiff outcomes in Ontario malpractice in recent years, share these features. The cases that win at trial are typically cases where the breach is clear, the causation is supportable, the damages are substantial, and the expert evidence is robust. The framework supports these cases and produces meaningful outcomes.
What to do when a case is declined
If a lawyer declines to take on your case, several other avenues may be available. None of them produce financial compensation, but they may produce some of the accountability or systemic change that families are looking for.
Hospital patient relations. Most Ontario hospitals have a patient relations office that handles concerns about care. The process is informal and not legally binding, but it can produce explanations, acknowledgments, and (in some cases) changes in practice. The framework operates internally to the hospital.
The Patient Ombudsman. The Office of the Patient Ombudsman investigates complaints about hospitals, long-term care homes, and home and community care services in Ontario. The framework operates independently of the hospitals and can support investigations of systemic and individual issues. The Ombudsman does not impose penalties but produces reports and recommendations.
The regulatory colleges. Each healthcare profession in Ontario is regulated by a college (the College of Physicians and Surgeons of Ontario for physicians; the College of Nurses of Ontario for nurses; the various other colleges for other professions). Complaints to the regulatory college can produce investigations, discipline proceedings, and (in serious cases) sanctions including suspension or revocation of the licence to practise. The framework is administrative and is separate from civil litigation.
The Office of the Chief Coroner. Where the underlying event involved a death, the Coroner’s office may have already conducted or may conduct an investigation. The framework for coroner investigations is different from civil litigation but can produce relevant findings and recommendations.
I have written separately on the framework for these administrative recourses in A Patient’s Guide to Making Complaints About Health Care in Ontario. The administrative framework operates separately from but in parallel to the civil litigation framework. A declined malpractice case does not foreclose the administrative options, and in some cases the administrative options provide some of the accountability families are looking for.
A second legal opinion. Where new medical information becomes available, or where the medical understanding of the underlying condition evolves, a second opinion from another lawyer may be reasonable. However, in my experience, multiple consultations usually lead to the same conclusion if the core legal barriers remain. The framework for case evaluation is reasonably consistent across competent plaintiff-side malpractice firms.
Why honest case screening matters
Careful and honest case screening protects clients in several ways.
It protects clients from years of stressful litigation with low probability of success. The litigation process is demanding. Examinations for discovery require difficult emotional preparation. Document production requires reviewing the records of the underlying tragedy. The wait for trial is years. The trial itself is challenging. None of this is worth undertaking if the case is unlikely to succeed.
It protects families from false hope. The honest assessment, even when it is not what the family wants to hear, allows the family to make informed decisions about their future. Some families redirect their energy toward administrative recourse, advocacy, or other constructive responses. Some take a measure of peace from knowing they explored the legal option.
It protects the integrity of the legal process. The framework operates well when cases are screened carefully. Cases that proceed are stronger, the litigation process is more efficient, and the framework retains its credibility.
It protects the firm’s ability to serve clients with strong cases. The resources of a plaintiff-side malpractice firm are finite. Cases require substantial investment of time, attention, and financial resources. Taking on cases that do not have a realistic prospect of success would compromise the firm’s capacity to serve the clients whose cases are strong.
Final thoughts
Medical malpractice law in Ontario sets a high bar. That standard exists to distinguish tragic outcomes from legally actionable negligence. The framework recognizes that medicine involves inherent uncertainty and that not every bad outcome can be attributed to a breach of the standard of care.
If your request for representation is declined, it does not mean your concerns are invalid. It means that, based on the available evidence and the operative legal framework, the case is unlikely to succeed in litigation. The framework does not measure the seriousness of your experience; it measures the legal viability of a specific claim.
Understanding the framework can help set realistic expectations during what is often the most difficult period of a person’s or family’s life. The framework can feel restrictive; it operates as it does for specific reasons that have developed over decades of Canadian malpractice jurisprudence. Where the framework supports a case, my firm will pursue it vigorously and with the resources and expertise required. Where the framework does not, the most responsible advice I can give is the honest one.
For more on the framework for medical malpractice claims in Ontario, see Suing for Medical Malpractice in Ontario: What You Need to Know. For the framework for administrative recourse where a case is declined, see A Patient’s Guide to Making Complaints About Health Care in Ontario. For the related framework for systemic issues in emergency departments, see Hallway Medicine in Ontario: When Overcrowded Emergency Rooms Lead to Medical Malpractice.
