On August 16, 2010, the Patient came in for an urgent appointment and was treated by the Defendant Chiropractor, as her regular chiropractor was away on vacation. The Defendant Chiropractor reviewed the file and did not see the "No C/S ADJ" notation as they were obscured by the WSIB forms. She then performed a chiropractic adjustment on the Patient's thoracic spine. However, the Patient claimed that the Defendant Chiropractor had adjusted her cervical spine. Sometime after the Patient went home, she complained of extreme pain and blamed the Defendant Chiropractor for this.
Accordingly, the Patient filed a statement of claim against the Defendant Chiropractor in 2012, stating that she committed chiropractic negligence in addition to "[committing] a battery upon her in that she performed adjustments to her cervical spine without discussing or advising of the risks involved or seeking informed consent to do so." Her daughters advanced claims under the Family Law Act.
The Decision
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The Honourable Justice DC Shaw dismissed the action in its entirety. Justice Shaw was satisfied that while the Defendant Chiropractor owed a duty of care to the Patient, he preferred the Defendant Chiropractor's evidence that she had never performed a cervical spine adjustment. This finding was made as the evidence provided was not congruent with the general treatment by experts called by both the Patient and Defendant Chiropractor. Causation was also not proven.
This successful decision for the Defendant Chiropractor occurred as a result of the use of expert opinion evidence advanced by the defendants to assist the court. However, it occurred also by the use of effective cross-examination that served to have the plaintiff's chiropractic experts agree, for the most part, with the evidence presented by the defendant's chiropractic experts.
His Honour found this evidentiary fact extremely compelling and relied upon same extensively in determining that the defendant had met the standard of care, as a practicing chiropractor, in the Province of Ontario, and had not acted negligently at any time.
*The identies of the parties have been removed by request.
A full decision can be obtained on CanLii 2017 ONSC 5490 (CanLii).