First Hurdle
The first thing a medical malpractice victim needs to prove in order to win their case is to establish the "standard of care".
The Supreme Court of Canada stated that:
“A doctor’s behaviour must be assessed in light of the conduct of other ordinary specialists, who possess a reasonable amount of knowledge, competence and skill expected of professionals in Canada, in that field. A specialist such as the respondent, who holds himself out as possessing a special degree of skill and knowledge, must exercise the degree of skill of an average specialist in his field.”
That well known quote from the Supreme Court of Canada’s decision in
Ter Neuzen v. Korn is referred to in every single medical malpractice trial.
However, there is an exception to the
Ter Neuzen rule that can be a trap for medical malpractice victims, and their lawyers.
“Respectable Minority”
This principle says that where a doctor's practice is followed by a “respectable minority” of competent doctors in the same field, a court (or jury) cannot prefer the practice of the majority over the “respectable minority”.
The Ontario Court of Appeal recently had to address this defence in their recent decision of Cleveland v. Whelan.
There was a respectable minority body of medical opinion that differed from the standard of care testified to by the plaintiff’s medical experts.
The Court of Appeal carefully examined the law regarding standard of care and the “respectable minority” principle.
Fortunately, for the plaintiff in this case the Court of Appeal did not agree with the defendant’s arguments:
“This is not a case where the trial judge erred by simply preferring one body of medical opinion over another respectable and competing body of medical opinion when considering the appropriate medical practice. This is a case where the trial judge considered and weighed the conflicting testimony of the expert witnesses on the operative standard of care.”
Although the court rejected the defendant’s “respectable minority” defence the court clearly affirmed the existence of the legal principle.
The court concluded at paragraph 72 of their decision:
“I conclude that Dr. Whelan has not provided any grounds for this court to interfere with the decision of the trial judge. First, the trial judge’s determination of what constituted the standard of care and her application of that standard of care to Dr. Whelan’s conduct were correct. Second, the findings of the trial judge were supported by the evidence presented to her. She was entitled to accept or reject all or part of the evidence of any witnesses. And, on my review of her reasons and the record as a whole, I conclude that Dr. Whelan has not established that the trial judge committed any palpable and overriding errors that would support this court’s intervention.”
Conclusion
Medical malpractice claims are difficult enough for injured patients to win. They bear the burden of proving the appropriate standard of care, that there was a breach of the standard of care, and that the defendant's negligence caused the patients injury or death.
But this decision also reminds medical malpractice lawyers that even after they establish the appropriate standard of care, they still have to investigate if there is another, alternate, standard that is followed by a "respectable minority".
I also provided some advice to patients about how they can protect themselves from hospital acquired infections. 
