When we go to a doctor or nurse, we assume that they will give us the best care possible. But doctors and nurses are not perfect, and they can make mistakes that can cause major injuries or even death. In these situations, victims and their families may be able to get money for the harm caused by bad medical care.

If you live in Toronto and have been hurt by bad medical care, you need the help of a medical malpractice lawyer with a lot of experience. In this blog post, we’ll tell you about five of the best medical malpractice lawyers in Toronto. These lawyers are known for their skill and success in helping clients with difficult medical malpractice cases. These lawyers have the skills, knowledge, and experience to help you navigate the legal system and fight for the compensation you earn.

So if you need a great medical malpractice lawyer in Toronto, these Toronto-based medical malpractice law firms are some of the top ones you may want to consider:-

1. Gluckstein Lawyers

https://www.gluckstein.com/expertise-area/medical-malpractice – Toronto Medical Malpractice Lawyers

“Since 1962, our firm has represented thousands of injured people, advocating for their interests, assisting with access to needed therapies, and obtaining the compensation they deserve. Led by a lawyer with more than 30 years of medical malpractice case experience”, our medical malpractice team handles claims”; “With medical malpractice lawyers in Toronto, Ottawa, Niagara, Barrie, Collingwood and Midland, Gluckstein Personal Injury Lawyers are available to help you with your medical malpractice claim.”

G Reviews Rating: 4.8/5 from 92 Reviews as of 2022/2023

Client Testimonials:  “We are so very lucky to have met this team! We sincerely recommend Jane Lou and Gluckstein Lawyers!”

2. Mazin & Associates, PC

https://www.mazininjurylawyers.com/ – Toronto Medical Malpractice Law Firm

“At Mazin & Associates, PC, we understand how infuriating it is when doctors fail to take the steps necessary to prevent their patient from facing additional injury. Patients seek doctors in good faith expecting to receive the highest level of care in their treatment. Unfortunately, many times that is not the case. Our Toronto medical malpractice lawyers believe that patients who receive care from negligent doctors deserve compensation for their unnecessary medical complications. Contact our office today at (416) 625-2122 to learn more about how our legal team can assist you in recovering the compensation you may deserve.”

G Reviews Rating: 5/5 from 166 Reviews as of 2022/2023

Client Testimonials: “Gary Mazin is a highly professional lawyer. He is extremely dedicated and hardworking. When I came to his office and explained my situation, I noticed that he was very attentive to the details. I am very pleased and satisfied and I would definitely recommend his service. Thanks a Lot” -Igor Az

3. Lang Lawyers

https://langlawyers.ca/ – Toronto Medical Malpractice Law Firm

“At Lang Lawyers, our work is exclusively focused on disability and personal injury claims in Ontario. As a father and son duo Aaron and Josh Lang, we have been fighting cases for years. We know the laws, the processes, the insurers, and what it takes to work strategically for an optimal, timely result.”

G Reviews Rating: 5/5 from 54 Reviews as of 2022/2023

Client Testimonials: “Cheers Lang Lawyers! I hired Josh Lang to represent me in a dispute with my employer. His integrity was unquestionable. I felt that my best interest was the focus at all times. We were successful in our lawsuit. I found a need to leverage Josh and his services further and, again, was successful in winning the despite. Josh is professional, timely, effective, and trustworthy. A good lawyer to have on your side.” -Brad P.

4. Singer Katz LLP

https://singerkatz.com/ – Toronto Medical Malpractice Key Lawyers

“Medical negligence cases can be extremely challenging and costly to litigate.  There are medical and legal issues that can be highly complex.  Most of them end up in court and you’ll require an expert opinion to support you.  At Singer Katz, our experienced medical negligence lawyers can help.

We support people who have been impacted by the:

• Birth Trauma
• Surgical errors
• Failed/delayed diagnosis of illness
• Nursing error
• Dental negligence
• Medication error

We boast a team of legal experts that have handled a wide variety of these cases. In addition to our legal strength, we also have a wide network of medical experts. Our experts have an enviable reputation in their various fields and are always ready to offer their honest opinion. Call Singer Katz, our understanding, compassionate lawyers will utilize their expertise to fight for the compensation you deserve.”

G Reviews Rating: 5/5 from 19 Reviews as of 2022/2023

Client Testimonials: “Singer Katz handled my recent claim successfully. Jason Singer was excellent to deal with, reassuring and steadfast. I really appreciated the attentiveness and focus on achieving an optimal outcome. If you are in a position of needing this kind of legal support, Singer Katz is a trustworthy and experienced firm to deal with.” -Sarah Zelcer

5. Paul Cahill

https://paulcahill.ca/ – Toronto Experienced Medical Malpractice Lawyer

“Paul Cahill is an experienced medical malpractice and personal injury lawyer with a proven track record of success.

Medical Malpractice

• Birth Trauma 
• Obstetrical and Neonatal Negligence causing Hypoxic Ischemic Encephalopathy and Cerebral Palsy
• Surgical Errors in Gynecology, Urology, General Surgery, Neurosurgery, Orthopedic Surgery and others
• Post-Operative Management Errors
• Medication Administration Errors
• Misdiagnosis and Delayed Diagnosis 
• Hospital Falls and Neglect
• Lack of Informed Consent
• Nursing Home Negligence”

G Reviews Rating: 5/5 from 12 Reviews as of 2022/2023

Client Testimonials: “Awesome experience working with Paul. Highly recommended! Very approachable and extremely knowledgeable in both law and medicine.” -Diana Gillstrom

at was happening and confident that things were moving along according to plan.” -Anissa Marie Holmes

Can you sue a doctor in Ontario for doing something wrong?

Yes, you can sue for medical malpractice in Ontario if a doctor or nurse does something that goes below the standard of care and hurts you. Medical malpractice can include, among other things, mistakes in diagnosing, treatment, surgery, and the way medications are handled.

How much can you sue for in Canada if a doctor hurts you?

In Canada, there is no set amount for how much you can sue for medical negligence because it depends on the specifics of the case. Most of the time, the amount of compensation depends on how bad the injury or harm was, how much it cost to fix, and how it affected the victim’s quality of life.

How much compensation is there in Canada for bad medical care?

In Canada, the amount of compensation for bad medical care can vary a lot based on the details of the case. Damages that aren’t related to money, like pain and suffering, loss of enjoyment of life, and mental distress, can also be paid for.

How do I sue a doctor for carelessness in Ontario?

In Ontario, you will need to talk to a lawyer who specializes in medical malpractice cases if you want to sue a doctor for being careless. They can look at the details of your case and tell you if you have a good claim. If that’s the case, they will help you file a lawsuit against the medical worker or facility that hurt you.

How long do you have in Ontario before you can sue a doctor for making a mistake?

In Ontario, you usually have two years from the date of the event or the date you first found out about the injury or harm to file a medical malpractice lawsuit. But there are some exceptions to this rule, so it’s important to talk to a lawyer as soon as possible to make sure you don’t miss any important dates.

Medical Malpractice in Toronto – Legal Blog Posts

The following are blog posts provided by one of the top medical malpractice law firms mentioned above:-

What Went Wrong and When? A Framework for Assessing Medical Device Product Liability and Patient Safety.

Establishing liability is always critically important in personal injury law. In many cases, determining who is responsible for a person’s injuries is straightforward. But when a medical device is involved, some additional sleuthing may be required.

If a person is injured by a medical device, the list of potentially negligent parties can be lengthy. The medical device manufacturer, regulatory body, distributor, purchaser, healthcare practitioners, healthcare facilities and staff, or patient could all have a role to play in what went wrong.

Was the product not only safe to use, but safe for the individual patient to use? Was there a design flaw? An error in the manufacturing process? Damage during distribution? Improper use? Lack of training? Poor maintenance and storage? Were there factors unique to the patient that made this device unsafe for them specifically? Did more than one thing go wrong between a medical device’s design and its end use? These are questions a plaintiff and their lawyer will want to answer as they prepare to launch a civil action.

In this blog post, I’d like to outline a simple, easily adaptable three-step process for assessing liability in medical device cases. Using Endean et al. v St. Joseph’s General Hospital, 2017 ONSC 2632 (CanLII) as a case study, I’ll demonstrate how this framework can be used retroactively to find fault when there is a negative patient outcome involving a medical device. I conclude by explaining how this three-step process reduces litigation expenses that could otherwise eat into a patient’s settlement or court award for damages.

Product Safety Versus Patient Safety.

Distinguishing between product safety and patient safety is an important part of the three-step medical device liability framework.

If a medical device is linked with an adverse outcome in a patient, does that mean it is fundamentally unsafe? No. A safe product is necessary for safe patient outcomes, but product safety does not always guarantee these results.

Step One concerns product safety, while Steps Two and Three focus on patient safety. In short, product safety is established through regulatory approvals, while patient safety is determined by proper use and proper management/maintenance of the medical product. 

Problems can arise at any step and, as Endean et al. shows, at every step.

Step One: Did the Product Meet Regulatory Criteria?

When a medical product has been examined by the proper regulatory body and approved (based on specific criteria), it is deemed safe and effective for use. The end user of the device could be a doctor, nurse, technician, other hospital staff, or even the patient (for example, someone who uses a syringe for insulin injections is operating a medical device).

Anyone involved in the research, purchase, acquisition, and operation of a medical device must ensure it complies with the applicable regulatory requirements.

In the Endean et al. case, medical implants were acquired by a hospital after Canada’s Medical Device Regulations were amended in 1983. These amendments required a Notice of Compliance from the regulator, assuring that the device had demonstrated evidence of safety and efficacy – criteria not met in this case.

The plaintiffs in the case, who sustained serious and catastrophic injuries, made claims against the hospital and oral surgeons (as the device manufacturer and distributor were both bankrupt and not parties to the action). The trial judge found the hospital liable for failing to ensure the product had regulatory approval prior to use.

Step Two: Is the Medical Device Safe for Use in the Specific Context?

Beyond ensuring there is regulatory approval for product safety, liability can arise if the device is unsafe to use in a given context. A person must consider unique conditions, environmental factors, and human factors when assessing if a medical device is safe for a patient to use.

Some content-specific questions to pose include:

• Does the medical device operate safely given the specific temperature, humidity, lighting, and other environmental factors of a particular context?
• Is knowledge and/or training required to use the device safely? Do experience and technical ability have a bearing on the safe use of a given medical device?
• If there are unique contextual factors that may affect the safe use of a medical device, was the patient advised of these risks and did the patient provide informed consent?

The oral surgeons in Endean et al. were found to be negligent in their duty to take care when assessing its viability for use in the patients in a given context. Warning signs available in 1983 indicated that a proplast Teflon implant would fail in a patient’s temporomandibular joints. Pressure on the device generated wear debris that caused catastrophic injuries to the plaintiffs.

Step Three: What is Required for the Safe Use and Management of a Medical Device?

To be safe for patient use, medical devices must be properly managed, maintained, disposed of, and replaced. The following factors should be considered:

• What conditions required for the continued safe use of a particular medical device have been identified by the manufacturer and disclosed to any learned intermediaries and the patient?
• What is required for physical device maintenance and records management?
• Is storage sufficient to ensure the safe continued use of the medical device?
• Is there appropriate monitoring, investigating and reporting of any adverse events?
• If problems have been discovered with a medical device, how are patients warned?
• What safeguards are in place for ensuring the medical device is replaced before its expiry and disposed of once it reaches the end of its lifespan?

In Endean et al., a worldwide recall of the device in 1990 was not communicated to the patients until 1994 at the earliest. In the intervening period, the damage caused by deteriorating implants worsened and led to catastrophic outcomes, increasing the injuries and, correspondingly, the damages awarded.

Save Time, Money, and Patient Health.

When a patient is injured by a medical device, trying to determine who is wrong and for what can be challenging. It often leads to a “shotgun” approach where an action identifies all stakeholders as defendants. Such an approach is not desirable. It raises litigation expenses and can needlessly complicate an action.

Using this simplified three-step framework for assessing what went wrong with a particular medical device and where the corresponding liability may lie can save time and money. If hospitals and medical staff adopt this framework to better ensure product and patient safety, they can eliminate or reduce their own liability for personal injuries, and potentially save their patients from experiencing preventable adverse outcomes.

Injured due to a medical device? Contact Gluckstein Personal Injury Lawyers

If you or a loved one sustained a serious injury due to a defective or dangerous product, the losses you experience can dramatically change your life. When a manufacturer’s negligence, breach of contract, or statutory law causes harm, they may be liable to compensate for the damage caused.

Gluckstein’s product liability lawyers in Toronto, Ottawa, Barrie or Niagara serve clients across Ontario and are here to work with you, so make the call today for a free consultation. If you or a loved one has suffered a serious injury due to a medical device, please contact one of our locations today.

Can you file a medical malpractice lawsuit without a lawyer?

The short answer is you shouldn’t.

With the huge amount of information accessible on the internet, some who believe they have been injured through medical malpractice wish to explore pursuing a claim without a lawyer. They may be able to do their own research about what may have happened to them, and how the legal system functions. But research and information are probably not enough to meet the challenges of pursuing a medical malpractice case for most.

The high cost of legal counsel is undoubtedly a prime motive for some people to pursue these difficult and challenging cases on their own. Although individuals, with some exceptions (including minors and incapable parties), have the right to represent themselves in a lawsuit, it is generally not advisable to do so, particularly when it comes to complex medical malpractice cases.

You have the right to seek justice.

If you or your family member have suffered an injury due to substandard medical care, you have the right to explore the options that are available to you. Importantly, a bad outcome does not necessarily mean bad care. It is important to examine what occurred and to recognize whether something went wrong because of a failure to provide a proper level of care or from the risks associated with an underlying illness.

There is a fundamental difference between feeling that you were wronged and proving you were wronged. A person suffering an adverse outcome following medical treatment might suspect substandard care, but expert medical opinion is required to prove a medical error. Something might have happened that appears to be obviously wrong, although it may not have happened in the way you thought it did. There could be different contributing factors that resulted in the harm that you need to address.

Elements of a medical malpractice case

In order for a claimant to be successful in a medical negligence case, there are three key elements that must be proven:

• a breach of the standard of care
• causation
• damages

It is important to remember that all three elements must be met for an injured party to be successful in a lawsuit for medical negligence.

Regarding standard of care, an injured party must be able to prove that the medical provider(s) in question either did something that they shouldn’t have done or failed to do something that they should have done, that rises to the level of a breach of the standard of care.

Damages refer to compensation for the injuries and impairments suffered by the injured party. This can include pain and suffering, the impact on activities of daily living, care and treatment needs, the ability to gain and sustain education or employment, housekeeping abilities, amongst other claims. Given the expense of pursuing a medical negligence claim, the injuries should significantly impact the injured party in order to justify the expense of proceeding.

Causation requires that the injured party show a link between the alleged substandard care and the harm suffered. The legal test, put simply, requires that the medical practitioner’s actions or inactions must have been the cause of the injuries and impairments. The causation analysis is often very complicated in medical malpractice law as pre-existing disease or injury often precede the medical treatment at issue for many people. Those underlying conditions are not caused by negligence and often expose the person to the risk of ongoing illness even with the best medical care.

There are many situations in which an injured party’s claim may satisfy some of these requirements, but not all. Unfortunately, our legal system requires that all be satisfied for a claim to succeed.

The business of medical malpractice lawsuits

Proving the case requires opinions from medical experts. These experts must review the applicable medical records, provide opinions, in writing and later in testimony, if needed, that establish a breach of the standard of care, causation, and damages.

The cost of obtaining expert opinions can be significant, and, at times, may outweigh the value of the claim itself. Regrettably, this becomes an important consideration when determining the viability of a particular case, and a reality that injured parties and their families must consider. It is not prudent for the injured party to spend tens of thousands of dollars on expert opinions, and to invest many years of their time pursuing a lawsuit if the value of the claim is insufficient to justify that expense.

Given their scientific and complex nature, medical malpractice cases are typically more challenging than other personal injury cases. Further, these cases tend to be vigorously defended by the medical profession with their ample resources. The inherent complexity of these cases also tends to make them long and drawn out, taking many years to bring to conclusion.

In terms of navigating the lawsuit itself, there are many procedural requirements and important deadlines that must be met by all parties, or they risk the Court dismissing the claim. Further, as the expert opinion is a key component of every medical malpractice case, it is important to ensure that a claimant obtains supportive opinions that meet the Court’s requirements.

Experience is a significant asset when it comes to pursuing and navigating a medical malpractice claim.

Other avenues for injured victims

Thankfully, there are other mechanisms that injured parties and their families can successfully pursue, even if their situation is such that a lawsuit is not viable.

It is important to keep in mind that a civil lawsuit for medical malpractice can only result in financial compensation for the injured party. It cannot result in disciplinary action against the health care providers, nor is it likely to result in a bigger change in hospital or clinic policies. An injured party has the right to file an official complaint against the parties involved. This can be done through the governing body that regulates the medical professionals involved, such as the College of Physicians and Surgeons for doctors or the College of Nurses of Ontario for nurses. These complaints are taken very seriously by the regulatory bodies and can result in sanctions and disciplinary action (such as a requirement for further education, a monetary fine, a requirement for supervision or the suspension of a medical license) against the medical professional involved.

A complaint can also be made directly to either patient relations or administration of the hospital involved, if applicable. These departments use these complaints to determine whether broader policy changes need to be implemented in their facility to prevent these mistakes from occurring again.

Self-representation can be stressful.

Representing yourself in a medical malpractice case can be an overwhelming experience. Not only do you have to relive the incident, but you also face the stressful burden of proving your case. If an injured party is unsuccessful, they have not only invested a substantial amount of time, effort and expense in a losing case, but they could be ordered to pay the other side’s legal costs.

Seek legal advice before deciding to self-represent.

Given the complexities involved in a medical malpractice lawsuit, it is advisable to consult with a medical malpractice lawyer and seek legal advice to assist with investigating a potential claim before starting a lawsuit.

Contact Gluckstein Personal Injury Lawyers

At Gluckstein Personal Injury Lawyers your initial consultation is free with no obligation. Should we accept your case, we will represent you based on a contingency fee agreement. Under a contingency fee arrangement, we don’t get paid unless you get paid.

Our medical malpractice team includes lawyers with the expertise to litigate these challenging cases along with staff who bring an intimate knowledge of the medical system.

With our extensive trial experience, excellent negotiating skills, and thorough knowledge of the medical practitioner insurance claims process, we can develop and manage your case every step of the way.

To learn more about how our medical malpractice lawyers in Toronto, Ottawa, Barrie or Niagara can assist you, contact us for a free consultation.

New Extra Insights: Medical Experts and Their Duty to the Court

A Cautionary Tale For the Role of Expert Evidence at Trial

In an important medical malpractice trial in 2022, a Judge of the Ontario Superior Court has found two doctors liable for the amputation of the plaintiff’s leg after complications from a fall. In deciding for the plaintiffs, Madam Justice Vermette largely rejected the testimony of two experts who testified for the defendant doctors. Successful plaintiffs’ counsel were lawyers Ryan Breedon of Breedon Litigation, and David Lackman and Jessica Golosky of Gluckstein Personal Injury Lawyers.

Regarding the evidence of defence emergency medicine expert Dr. B, the trial judge found that his testimony amounted to splitting hairs, he gave inconsistent answers, and the judge was astonished by his testimony. Notably, the trial judge adopted the argument made by plaintiffs’ counsel that Dr. B refused “to make obvious concessions” and had “taken on the role of advocate”.

The defence Orthopaedic expert was Dr. P. The trial judge found his “performance as an expert witness deplorable”. Dr. P’s evidence was contradicted by some of the very literature he quoted in his own written reports. His testimony was non-responsive to simple questions, he refused to admit obvious statements and gave answers that made no sense in light of the opinions he provided in his own reports.

This important case, Fortune-Ozoike v. Wal-Mart Canada Corp., 2023 ONSC 421, should be seen as a cautionary tale for medical experts who fail to understand and respect their role in the fair administration of justice. Further, lawyers acting for parties on both sides of medical malpractice cases need to be reminded of the proper role that experts play in the trial process.

In medical malpractice cases, as in all cases, experts hired for the purposes of litigation occupy a special place. These litigation experts have no personal knowledge of the matters at issue between the parties. Ordinarily, without personal knowledge, a witness is simply not permitted to testify. An exception, however, is made when the case involves technical or scientific issues beyond the ordinary understanding of the trier of fact (judge or jury). In these complex cases, the trier of fact may need some “help” to sufficiently understand the complicated issues in order to render a fair verdict. Therefore, experts are allowed to testify and offer opinion evidence, where it would otherwise be excluded, provided they do so in a way that helps the trier of fact.

This helping function means that experts hired for litigation must honour their obligation to help. That is, they must offer testimony that conforms with their duty to assist the Court. Where the expert’s evidence aims to favour the economic interests of one party rather than reliably inform the trier of fact on technical matters, it cannot be said that the testimony conforms with the duty to help. It follows that the testimony they give must be impartial and objective, not favouring the economic interests of one party or the other. Both Dr. B and Dr. P, according to the trial judge in Fortune-Ozoike, failed to fulfil their respective duties to the court to help the judge as the trier of fact. As a result, the trial judge rejected their testimony on key points.

In contrast, the trial judge accepted the testimony of the plaintiffs’ Emergency Medicine expert, Dr. Arun Sayal, and Orthopaedic expert, Dr. David Pichora, in almost all respects material to the outcome. The trial judge found Dr. Sayal to be a “very credible witness”. As for Dr. Pichora, the trial judge found him to be fair, objective and non-partisan. The contrast between the credible plaintiffs’ experts and the incredible defence experts could not be more stark.

An accident and preventable medical errors

On Boxing Day 2013, the plaintiff Jameela Fortune-Ozoike went shopping at a Walmart store where she slipped on a hanger and fell.

Experiencing excruciating pain in her leg, she was transported to the hospital where she was given pain medication as she waited to see a doctor. Based on the emergency room intake assessment, but without any examination or assessment, the emergency room doctor, the defendant Dr. Lian, assumed the patient had suffered a fracture. This assumption was based on incomplete clinical information. In fact, Fortune-Ozoike had suffered a knee dislocation and vascular injury, which exposed her to an increased risk for a serious condition called compartment syndrome. The risk of compartment syndrome is that it can reduce or cut-off the blood supply to the leg and lead to amputation if not diagnosed and treated in a timely way.

Given the serious risks associated with a knee dislocation and the possible development of compartment syndrome, it was essential that a thorough neurological examination take place and that examination be repeated so that any clinical changes suggesting deterioration can be responded to quickly. The ER doctor did contact his orthopedic colleague, the defendant Dr. Lai. The evidence was that Dr. Lian had not carried out the thorough neurological examination required and that Dr. Lai did not take the necessary steps to ensure that the neurologic examination was properly done. These failures would ultimately lead to the amputation of the patient’s leg. By the time the ominous neurological changes were detected, it was too late to save the limb.

The plaintiffs alleged that Dr. Lian and Dr. Lai each breached two applicable standards of care and that these breaches caused Ms. Fortune-Ozoike’s injuries.

The plaintiffs alleged that Dr. Lian failed to assess Ms. Fortune-Ozoike upon being notified by the triage nurse of the patient’s unusual degree of pain. Further, it was alleged that Dr. Lian failed to conduct a competent neurological examination of the patient, or to notify Dr. Lai of his (Dr. Lian’s) suspicion that the patient might be developing compartment syndrome after he reassessed her.

Evaluation of expert testimony

Regarding the actions of Dr. Lian, the standard of care expert for the plaintiff, Dr. Sayal, testified that Dr. Lian failed to perform a proper examination for compartment syndrome when he was advised of the development of concerning clinical symptoms, and that Dr. Lian breached the standard of care by not notifying Dr. Lai of these concerns. Significantly, the trial judge accepted Dr. Sayal’s evidence “unreservedly”. The evidence of the defence expert on this point, Dr. B, was, as stated above, rejected for inappropriately taking on the role of advocate.

On behalf of the patient, Dr. Pichora’s evidence regarding the orthopaedic care provided by Dr. Lai was that this doctor should have attended the bedside and conducted a thorough neurological examination that included comparing arterial findings in the injured leg to those in the uninjured leg. Alternatively, Dr. Lai was required to ensure that this examination was competently performed. The trial judge accepted Dr. Pichora’s evidence and found that Dr. Lai had breached the standard of care. The defence evidence of Dr. P to the contrary was bluntly rejected by the trial judge.

Finally, the trial judge heard evidence from other experts called by the parties on the issue of causation, concluding that the breaches of the standards of care by both Dr. Lian and Dr. Lai were the “but for” cause leading to the amputation of the plaintiff’s leg as a life-saving measure.

Rejection of the testimony from the Defence “experts” and the Judge’s Role as Gatekeeper

In considering whether Dr. Lai breached the standard of care, Justice Vermette accepted the opinion of the plaintiffs’ orthopaedic expert, Dr. Pichora. He gave evidence that a knee dislocation is a limb-threatening injury and that it was incumbent on an orthopaedic surgeon to ensure that the appropriate neurovascular assessment was done. This required seeing the patient in person, or at the very least ensuring, through focused questioning of the emergency physician, that a complete and proper neurovascular assessment was carried out.

The Defence expert, Dr. P, testified that the standard of care did not require Dr. Lai to attend the Hospital to assess the patient himself, did not require Dr. Lai to ask Dr. Lian about the manner in which he was conducting a neurovascular examination, and did not require him to outline the specific assessment to be conducted when giving his orders. In Dr. P’s opinion, Dr. Lai was entitled to rely on Dr. Lian’s assessment as conveyed to Dr. Lai.

During cross-examination, Dr. P gave non-responsive answers to simple questions, and offered testimony inconsistent with his own reports, with Dr. Lai’s testimony, and with authoritative literature in the field of orthopaedic medicine that he had himself cited. Justice Vermette wrote, “while Dr. P signed a Form 53 – Acknowledgement of Expert’s Duty, he did not provide opinion evidence that was fair, objective and non-partisan. He acted as an advocate.”

Justice Vermette “unreservedly” accepted the opinion of plaintiffs’ emergency room expert, Dr. Arun Sayal, when determining whether Dr. Lian breached the standard of care. She found that Dr. Sayal’s opinion was “rational, as well as consistent with the process of differential diagnosis and the foreseeability of harm and risk posed by compartment syndrome to the patient”.

By contrast, Justice Vermette rejected the evidence of defence emergency medicine expert Dr. B on the basis that he had taken on the role of advocate. Dr. B’s opinion had, in substance, largely supported the opinion of Dr. Sayal that Dr. Lian had breached the standard of care; yet, he went to great lengths to avoid conceding this point. Experts acting impartially Justice Vermette found that the causation experts for both sides, Dr. Andrew Dueck (for the defendants) and Dr. Varun Kapila (for the plaintiffs), to be credible witnesses. These experts were largely in agreement about the timeframe in which diagnosis and treatment of compartment syndrome would have preserved all or at least some of the function of the limb.

Discussion

Litigation experts must honour their obligation to be helpers to the trier of fact, not advocates for a party’s economic interests. The duty to act fairly, objectively, and impartially does not mean that medical experts are precluded from “advocating” for the opinions expressed in their expert reports. Indeed, it is the reasonable expectation of the parties that the experts will do just that. This means that the opinions expressed in expert reports must be sound. The opinions must find their foundation in reliable medical literature, conform with acceptable teachings, and be consistent with good clinical experience. Further, when these opinions are formulated, they must be done knowing that they will be scrutinized by other qualified experts and, where the case does not settle, they will be scrutinized in cross-examination at trial. The opinions must be sound enough to withstand this scrutiny.

In Fortune-Ozoike, the opinions of Dr. Sayal and Dr. Pichora were firmly rooted in good medicine and authoritative literature. As such, these opinions ultimately withstood the test of their colleagues’ critique and cross-examination at trial. The same cannot be said of the evidence of defence experts Dr. B and Dr. P, the significant deficiencies of which were plainly exposed by the careful cross-examination by plaintiffs’ counsel.

Conclusion

Medical malpractice cases are notoriously challenging to prosecute. In most cases, the challenges faced by the patient in litigation are associated with the inherent complexity of the medicine and science involved. In many cases, the plaintiff is seeking treatment from medical professionals due to an injury or some underlying health problem unrelated to any fault on the part of the medical team. It is necessary to tease out the expected prognosis caused by the underlying condition without the alleged malpractice and compare that to the actual outcome following the alleged malpractice. The former scenario imagines a world where the malpractice did not occur, making causation questions difficult. It is unfair to further complicate the challenges faced by the patient by engaging experts who fail to meet their duties as helpers to the court by becoming advocates for the parties who engage them.

In any profession, reasonable disagreement among experts is to be expected. People can come to different conclusions based on their own interpretation of the same general facts. Legitimate differences of opinion are one thing; however, inappropriately advocating for one’s own, or for a litigant’s, economic interests, is an entirely different matter.

As personal injury lawyers, we must ensure that the role of our experts does not overlap with our role as advocates for our clients. We must take care to ensure that our experts understand and honour their duty to the court and to the administration of justice. Fortune-Ozoike v. Wal-Mart serves as an excellent case study on how expert witnesses can fulfil their responsibilities effectively, or can cross a line that impairs or, as here, completely undermines, their credibility.

Link to blog: https://www.gluckstein.com/news-item/medical-experts-and-their-duty-to-the-court

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