The vast majority of legal actions commenced against health professionals are grounded in whole, or in part, on the law of negligence. The tort of negligence requires a plaintiff to allege and prove four elements. They are:
This blog post focusses on the second element – a breach of the standard of care. Was what occurred to the patient the result of such a breach, or alternatively, was it merely an error in judgment? The importance lies in the result, a breach leads to damages while an error in judgment does not!
The standard of care is the level of treatment a reasonably competent health care practitioner would be expected to provide in the circumstances before them. The plaintiffs set out allegations of negligence in their statement of claim, which sets out the case advanced by the plaintiff(s) and which the defendant health care professional(s) have to meet. The allegations may relate to actions taken and alleged to have been committed wrongly, or actions not taken, which should have been performed.
The most often quoted passage on the standard of care is the Ontario Court of Appeal’s (ONCA) decision in Sylvester v. Crits et al. wherein it was stated:
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 one who does not profess to be so qualified by special training and ability.
The appropriate standard of care is advanced by the parties through their evidence, largely consisting of expert evidence. It is a standard of reasonableness, not perfection. This is because it is easy to be right in hindsight and the health care professional must be viewed not in retrospect, but in the circumstances that presented themselves at the time.
It must also be remembered that the appropriate standard of care is based on the state of medical knowledge and technique at the time of the alleged negligence. It is not based on advancements that may have since been made.
The common law has long recognized that a health care professional is not negligent, that they have not breached their duty when what occurred was an honest error of judgment after a reasonable and careful assessment of the patient. Perhaps the most well-known expression of what was meant comes from Lord Denning in Roe v. Minister of Health as follows:
It is so easy to be wise after the event and to condemn as negligence that which was only a misadventure. We ought always to be on our guard against it, especially in cases against hospitals and doctors. Medical science has conferred great benefits on mankind, but these benefits are attended by considerable risks. We cannot take the benefits without taking the risks.
This makes sense as most health care professionals are presented with unique and fast appearing circumstances they must consider. Although all work from their education, training and experience, they are not perfect. Errors are expected and the court must then decide if what occurred was a negligent act or omission, or mere misadventure.
If the health care professional establishes that they acted honestly, intelligently and reasonably when providing an exercise of judgment, an error in judgment is not equal to negligence. This is unlikely to happen where the error was the result of unskillfulness, carelessness or from ignorance.
At Wise Health Law, our lawyers have significant experience before the civil courts, enabling them to provide our clients with exceptional guidance and representation through the often-overwhelming negligence litigation process. To find out more about how we can help, contact us online, or at 416-915-4234for a consultation.
In December 2019, Ontario’s Attorney General introduced Bill 161, the Smarter and Stronger Justice Act (the “Act”), which became law on July 8, 2020. The Act hopes to simplify a complex and outdated justice system by bringing changes to how legal aid services are delivered, how class actions are handled, and how court processes are administered.
Of note, the Act has amended the Judicial Review Procedures Act (JRPA) to establish new rules as to when an application for judicial review may be brought.
Any decisions made on or after July 8, 2020 are now subject to a 30-day limit for bringing an application for judicial review unless another Act provides otherwise. Courts, however, retain powers to extend the time for making an application for judicial review if satisfied that there are apparent grounds for relief and that no prejudice or hardship will be incurred by the delay. Before these amendments, the JRPA did not set out any time limits for bringing an application, but courts had powers to extend the time to bring an application if another Act prescribed the limit.