Health professionals have a duty in law to conduct their practices in accordance with the conduct of a prudent and diligent peer in the same circumstances. If the health care professional is considered to be a specialist, their actions must be assessed in light of the conduct of other such specialists who possess a reasonable level of knowledge, competence and skill. When assessing potential negligence by a health care professional, one must examine the knowledge and skill that ought to have been reasonably possessed at the time of the alleged acts or omissions said to be negligent. But what about situations where the standard of care itself is deemed negligent?
When the conduct of a medical professional is under scrutiny due to a complaint, it is invariably assessed through the opinions of “experts” retained by the opposing parties. The plaintiff has the onus of establishing the standard of care at the relevant time and proving that it was not met in the circumstances. The defence will also seek to establish the standard of care at the time and prove that it was met. It is generally accepted that when a health care professional acts in accordance with a recognized and respectable practice of their profession that they will not be found negligent. This is so because judges and juries do not ordinarily possess the necessary expertise to establish the standard of care on their own. The assumption is that collectively, healthcare professionals will have adopted procedures that are in the best interests of their patients, which are not inherently negligent.
However, where the accepted practice is fraught with obvious risks, it can be found to be negligent without the need for expert testimony. This possibility requires that the circumstances do not involve diagnostic or clinical skills so that an ordinary, non-medical person may sensibly pass judgment. Examples of such scenarios would include the failure to advise of known material risks, leaving a surgical piece of equipment in the patient or treating the wrong part of the patient's body.
The judge or jury must analyze each aspect of the claim in the same way. They must first decide if the evidence established that the standard of practice existed, and if so, what it was. This means that they can prefer one party's evidence and reject that of the adversary.
Once they have decided on the applicable standard of care, they must next assess whether the defendant health care professional conformed to that standard. If they did, the usual result would be a finding of no negligence. However, as in the examples explained above, the judge or jury may find that the standard practice was itself negligent. Using the example of the instrument being left in a patient, if the standard of practice was not to account for all instruments used during a surgery, the trier of fact could find that standard to be negligent in and of itself.
Alternatively, if the trier of fact finds that no standard of practice was established by the evidence, then there would be no negligence unless they were able to fix the standard without the necessity of expert advice.
Finally, if the health care professional is found to have not met the standard of care, whether established by the evidence or the trier of fact, then they would be negligent.
The authority for these statements of the law can be found in the Supreme Court of Canada’s (SCC) decision in Ter Neuzen v. Korn. In the decision, the SCC quoted from their reasoning in Waldick v. Malcolm as follows:
Thus, it is apparent that conformity with standard practice in a profession does not necessarily insulate a doctor from negligence where the standard practice itself is negligent. The question that remains is under what circumstances will a professional standard practice be judged negligent? It seems that it is only where the practice does not conform with basic care, which is easily understood by the ordinary person who has no particular expertise in the practices of the profession. That is, as Professor Fleming suggests, where the common practice is fraught with danger, a judge or a jury may find that the practice is itself negligent.
At Wise Health Law, our health law lawyers rely on their significant trial and civil litigation experience to provide our clients with exceptional guidance and representation in medical malpractice claims. To find out more about how we can help, contact us online, or at 416-915-4234to schedule 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.
In early August 2020, the Federal Minister of Health granted an exemption under the Controlled Drugs and Substances Act (CDSA) to four terminally ill Canadians to use psilocybin in their end of life care.
Psilocybin is one of the active ingredients/chemicals in “magic mushrooms,” the other is psilocin. Both psilocybin and psilocin are controlled substances under Schedule III of the CDSA. The sale, possession, production, etc. are prohibited unless authorized for clinical trial or research purposes under Part J of the Food and Drug Regulations. Both have been illegal in Canada since 1974. According to Health Canada, there are no approved therapeutic products containing psilocybin in Canada. However, the purified active ingredient, i.e. psilocybin, is being studied in supervised clinical settings for its potential to treat various conditions such as anxiety and depression.