Medical Malpractice Claims: Is Expert Evidence Always Necessary?

by John McKiggan

Medical Experts Required

Expert evidence is always required in medical malpractice claims to establish the standard of care and whether there was a breach of the standard of care, or at least that has assumed to be the case by medical malpractice lawyers.

In fact, I recently posted about a claim here in Nova Scotia that was dismissed because the plaintiff failed to present appropriate expert evidence.

Medical Malpractice Claim Struck Out for Lack of Expert Evidence

Sometimes Experts Not Necessary?

However, a recent decision from the Ontario Court of Appeal indicates that an expert medical opinion may not be necessary to establish a breach of the standard of care in a medical malpractice claim.

Vandergiessen v. Trillium Health Centre (Mississauga), was released by the Ontario Court of Appeal last week.

In that case, the Court of Appeal stated:

“In our respectful view, the motion judge erred by granting summary judgment on this record. Not all claims against medical doctors require expert opinion evidence that the applicable standard of care was not met: See Ter Nuezen v. Korn, [1995] 3 S.C.R. 674 at paras. 40-49.

While the appellant may be unable to establish elements of her claim without an expert opinion, the claims advanced by the appellant against the respondents involve more than a typical allegation of medical malpractice. The appellant claims that statutory procedures and statutory conditions for her involuntary committal were not followed or satisfied. In our view, these allegations fall into the category of claims that may be established without an expert opinion. They are not matters that rest solely upon the opinion of experts as to whether the requisite standard of care was met.”

What does it mean?

If a plaintiff’s claim is based on an allegation that a doctor failed to meet the “standard practice” of other doctors and that the plaintiff suffered an injury as a result, I believe plaintiffs will still require an expert medical opinion to assess the standard of care.

However, in cases where there are certain statutory requirements or laws that a doctor has to meet, those requirements may be able to be proven without the enormous cost and expense of retaining an expert to provide a medical-legal opinion.

If you or a loved one have suffered injuries that you think may be due to medical malpractice you can buy a copy of my book: The Consumer’s Guide to Medical Malpractice Claims in Canada: Why 98% of Canadian Medical Malpractice Victims Never Receive a Penny in Compensation. on Amazon.

Or you can contact me through this blog or by calling toll free in Atlantic Canada 1-888-647-7201 and we will send you a copy, free, anywhere in the Maritimes.

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