On January 18, 2021, the Supreme Court of Canada upheld a trial judge’s decision to award $1.3 million to a plaintiff who suffered injuries as a result of surgery after the trial decision was overturned by the Ontario Court of Appeal. The appeal centred on how a court should assess the standard of care that a medical professional owes to their patient.

The Supreme Court of Canada’s decision does not change the standard of care for medical professionals. However, its affirmation of the existing rule will nonetheless come as a relief to victims of medical malpractice and many malpractice lawyers and serves as a reminder of the importance of developing your malpractice case with the assistance of a skilled lawyer.

The Court’s Consideration of the Standard of Care in Medical Malpractice Claims

The defendant surgeon performed a colon removal surgery on the plaintiff. After the surgery, the plaintiff experienced ongoing pain and later discovered that her left ureter was blocked due to a mistake made during surgery involving a LigaSure instrument. This blockage damaged the plaintiff’s left kidney and ultimately led to its removal by another surgeon. Ms. Armstrong brought a medical malpractice claim against the first surgeon, claiming that he breached the standard of care he owed her as a patient while performing the surgery and caused the blockage that damaged Ms. Armstrong’s kidney.

The trial judge determined that the surgeon breached his standard of care to Ms. Armstrong by failing to “identify, protect, and avoid direct contact with or close proximity to” her ureter when using a LigaSure instrument, having heard evidence at the trial indicating that a normal, prudent surgeon would avoid direct contact or close proximity between the ureter and the LigaSure while performing the surgery in question. The trial judge further determined that this breach was the cause of Ms. Armstrong’s injuries.

The defendants appealed the decision, and the Ontario Court of Appeal determined that the trial judge had erred in law in identifying and applying the standard of care, claiming that the trial judge had held the defendant to a “standard of perfection” rather than a standard of reasonable care. When the Ontario Court of Appeal’s decision was released, many were concerned that the decision would make it harder for future victims of medical malpractice to prove their cases against medical professionals by lowering the standard of care. Those concerns have now been alleviated by the Supreme Court of Canada’s decision.

The Standard of Care for Surgeons in Medical Malpractice Claims

Medical professionals owe a duty of care to their patients. In a medical malpractice case, the patient must prove, among other things, that their surgeon more likely than not failed to meet the standard of care owed to them. For instance, a medical professional might fail to meet the standard of care they owed to their patient by misdiagnosing an illness or making a mistake during surgery.

But what is the “standard” that courts hold a surgeon to when determining whether they breached their duty of care? The trial judge’s decision noted that the standard is that of “a reasonable and prudent general surgeon, having regard to all the circumstances of the case.” Essentially, the court asks whether another reasonable surgeon would have done what the medical professional did in the same circumstances. In the case discussed above, the plaintiff’s lawyers provided expert evidence from specialists to prove that the defendant didn’t do what a reasonable and prudent general surgeon would have done if they were in his shoes, and thereby breached the standard of care he owed to the plaintiff.

What This Means for Medical Malpractice Claimants

Proving to a court that a surgeon has breached their duty to a patient – and, ultimately, whether a medical malpractice case will succeed – requires different evidence and strategies based on the unique facts of each case. Victims of medical malpractice should hire a lawyer who has experience with medical malpractice claims to ensure their claim is handled skillfully and results in the best possible outcome.

Skilled Medical Malpractice Lawyers Serving Eastern Ontario and North Bay

At Tierney Stauffer LLP, our experienced personal injury lawyers believe in fighting for your rights. Patients rely on medical professionals to provide them with accurate advice and skilled treatment. When a medical professional fails to meet their professional obligations and cause harm to their patients, our firm helps those patients obtain appropriate compensation. If you believe that you are a victim of medical malpractice, we can help.

We recognize that no two injury claims are the same, which is why we give each claim the personalized attention needed to bring about the best possible resolution. Call us at 1-888-799-8057 or contact us online to set up a free consultation with one of our experienced personal injury lawyers.


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