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January 2018

Legal Themes utilized for Medical Liability

Catherine Korte
Catherine Korte,

Bogdan Miscevic
Bogdan Miscevic,
Associate Lawyer

By Catherine Korte and Bogdan Miscevic


The concept of medical malpractice broadly refers to the tort of negligence being pursued against a regulated health practitioner for actions carried on in the scope of one's medical practice. A regulated health practitioner extends far beyond just physicians but includes those non-physicians such as nurses, radiologists, chiropractors, midwives, and a whole host of other practitioners.

Medical professionals owe a duty of care to their patients. In Canadian law, with respect to the administering of any treatment, a health practitioner will (generally) owe two duties of care to a patient. These are:

  1. The duty to inform the patient of the nature and possible risks of the treatment (the concept of “informed consent”); and
  2. The duty to perform or administer the treatment in accordance with the standard of skill expected of a health practitioner in the same field.1

In any event, it is important to note that a plaintiff could have a successful action based on a breach of one or both of the duties outlined above.

What is considered the “standard of skill expected of a health practitioner” is obviously dependent on the recognized practices of different medical professions. In Canadian law, a health practitioner will be required to carry out his or her services exercising reasonable skill, care and diligence. He or she is not to be judged by the result, nor is he or she to be held liable for errors of judgment.2 For instance, in Crits v. Sylvester,3 the Ontario Court of Appeal noted, and the Supreme Court of Canada re-affirmed, the following:

“Every medical practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. He is bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same experience and standing, and if he holds himself out as a specialist, a higher degree of skill is required of him than of one who does not profess to be qualified by special training and ability.”

The Supreme Court of Canada further clarified in McCornick v. Marcotte4:

“The test of reasonable care applies in medical malpractice cases as in other cases where fault is alleged. The medical man must possess and use that reasonable degree of learning and skill ordinarily possessed by a practitioner in similar communities in similar cases. Whether or not such test has been met depends, of course, upon the particular circumstances of each case.”

Therefore, the standard of care in Canadian law expected of any physician has been described as that of a “reasonable and prudent medical doctor, having regard to all the circumstances of the case.”5

While each case is factually unique, common themes arise which underpin frequently used theories of liability.


One of the most common medical malpractice claims in Canada is the failure of the physician to properly diagnose a patient.

I. Improper Diagnosis

One of the most common medical malpractice claims in Canada is the failure of the physician to properly diagnose a patient.

Therefore, a physician is negligent if it is proven that he or she failed to live up to their respective standard of care.

The Ontario Superior Court in Lurtz v. Duchesne6 noted the following:

“Of course, it is not always that a physician can make a correct diagnosis. In many instances, an initial diagnosis might turn out to be completely false or misleading. However, as long as the physician has taken sufficient care and has exercised appropriate skill and judgment, equivalent to a prudent practitioner in those circumstances, in making his/her diagnosis, an erroneous diagnosis does not automatically lead to a finding of negligence.” [Emphasis Added.]

As such, improper diagnosis does not equate to negligence unless the physician failed to take sufficient care and exercised appropriate skill and judgment in rendering the said diagnosis.

II. Failure to Refer to Failure to Consult a Specialist

The British Columbia Court of Appeal put it rightfully; “professional reasonable care and skill includes the ability to recognize one's own limitation."7In other words, where a medical issue is outside of the scope of the particular physician's practice, he or she owes a duty to the patient to refer them to a specialist.

According to Legal Liability of Doctors and Hospitals in Canada,8 a physician is under a duty to refer in the follow circumstances:

  1. The physician is unable to diagnose the patient's condition;
  2. The patient is not responding to the treatment being given;
  3. The patient needs treatment which the physician is not competent to give;
  4. The physician has a duty to guard against his or her own inexperience; and
  5. The physician cannot continue to treat a patient.

Some of the additional factors that ought to be taken into account when a physician is being sued for improper referral or failure to consult a specialist are as follows:9

  • Where the physician making the referral does not understand the nature of the condition with which they are faced and seeks more expert help with that condition;
  • Where the condition itself represents a significant threat to either the general health of the patient or to a specific organ;
  • Where, despite what appears to be adequate and appropriate treatment, the condition continues to worsen, threatening the loss of life and limb;
  • Where, despite a full understanding of the particular condition, the referring physician may want to get another opinion just to share the burden of dealing with a difficult condition;
  • If the physician does not know what the condition is;
  • If the physician has never before managed a similar case and, therefore, has no personal experience with such a case;
  • If the condition was beyond the expertise of the referring doctor; and
  • If the initial treatment of the referring physician was failing and the physician did not know why.

In Boyd v. Edington,10 the Court found that the medication given by the defendant doctor “promoted” the formation of blood clots in the patient. As such, the physician's initial misdiagnosis and failure to consult a specialist led to his eventual breach of the standard of care.

The Court cited the following excerpt in support of its decision:

“In my opinion the cases have established that an erroneous diagnosis [by the defendant doctor] does not alone determine the physician's liability. But if the physician, as an aid to diagnosis, does not avail himself of the scientific means and facilities open to him for the collection of the best factual data upon which to arrive at his diagnosis, does not accurately obtain the patient's history, does not avail himself in this particular case of the need for referral to a neurologist, does not perform the [appropriate] test, the net result is not error in judgement but constitutes negligence.”11 [Emphasis Added.]

III. Negligence in Post-Operative Care

The Ontario Court of Appeal recognized as follows:

“the obligation of a surgeon to his patient does not stop with the successful completion of the operation: a continuing duty rests upon him or her to provide appropriate post-operative care or advice and direction as to such care.” [Emphasis Added.]

This case involved doctor's failure in obtaining follow up x-rays after the patient received an operation.

The Court stated as follows:

“The essence of a physician's duty is to ensure that the patient is adequately equipped to obtain her own after-care. How this responsibility is to be met – the standard of care in the circumstances – will involve a mix of factors. The first question that arises in this context is whether it is reasonable, in the circumstances of the particular patient and the particular required after-care procedures, for the doctor to leave the responsibility with the patient by informing the patient of the necessary steps to be taken and impressing upon her the importance of those steps. Where the patient's ability to follow instructions does not appear compromised and there is no doubt that a reasonable person could be expected to carry out the steps, the burden upon a physician with respect to follow-up, decreases. In other words, the capable hands into which a patient must be placed can be, if the circumstances permit, her own. As this Court [previously put it] “A continuing dut rests upon the surgeon to provide adequate post-operative care or to give adequate advice and direction as to such care.”

... But where the doctor should reasonably know that the patient cannot obtain care without the doctor's further involvement, his duty is to put the patient into a position where she can.”13

...a doctor may be found negligent for failing to adequately educate or warn the plaintiff regarding “danger signs

In fact, a doctor may be found negligent for failing to adequately educate or warn the plaintiff regarding “danger signs” which might appear during the post-operative period.14


It should be noted that there are a number of other medical practice claims that are recognized in Canadian law and the above ones are by no means exhaustive. Another important factor to keep in mind is the so-called “locality rule” which indicates that the standard of care demanded of professionals will vary according to the locality in which they practice. In other words, medical professionals in rural Nunavut are not expected to perform to the same high levels as their counterparts in downtown Toronto.

Through its Canadian Litigation Counsel (CLC), the offices of McCague Borlack provide national association of law firms dedicated to providing litigation and alternative dispute resolution (ADR) services across Canada. Now a nationwide association of independent law firms, CLC is involved in coordinated litigation and related services to the insurance industry and other public and private institutions throughout Canada. The group is specifically structured to serve and respond to their clients' needs on a national and regional basis. CLC serves clients of member firms to ensure rapid, efficient and consistent legal assistance across this vast country of ours.

1 Mann v. Jugdeo, 1993 CarswellSask 317 (Sask. Q.B.).
2 John Campion and Diana W. Dimmer, Professional Liability in Canada, Volume 2, Carswell, 1994, 2017 Thomson Reuters –referred to for guidance throughout this article.
3 [1956], 1 D.L.R. (2d) 502, 1956 CarswellOnt 90 (Ont. C.A.), affirmed [1956] S.C.R. 991, 1956 CarswellOnt 84 (S.C.C.).
4 [1972] S.C.R. 18, 1971 CarswellQue 44 (S.C.C.).

5 Pittman Estate v. Bain, 1994 CarswellOnt 928 (Ont. Gen. Div.) at para. 104.
6 [2003] O.J. No. 1540, 2003 CarswellOnt 1523 (Ont. S.C.J.).
7 De La Giroday v. Brough, 1997 CarswellBC 1132 (B.C.C.A.) at para. 9.
8 Ellen I. Picard, Legal Liability of Doctors and Hospitals in Canada, 2nd ed. (Toronto: Carswell, 1984).
9 Gill Estate v. Marriott [1999] O.J. No. 4509, 1999 CarswellOnt 3871 (Ont. S.C.J.).
10 [2014] ONSC 1130, 2014 CarswellOnt 1934 (Ont. S.C.J.).
11 Wade v. Nayernouri, [1978] 2 L.M.Q. 67 (Ont. H.C.) at para. 11.
12 Rollin v. Baker, 2010 ONCA 569, 2010 CarswellOnt 6409 (Ont. C.A.).
13 IbId, at paras. 75-76.
14 Moore v. Getahun, 2014 ONSC 237, 2014 CarswellOnt 298 (Ont. S.C.J.).


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