Practicing medical malpractice law in Canada is fraught with risk. Interestingly, medical doctors in Canada, for the most part, are not insured in the traditional sense. Rather, they are part of the Canadian Medical Protective Association (CMPA) that acts similar to an insurer. That is, if a medical doctor is sued, the CMPA will invariably defend the medical doctor and in rare cases pay a settlement to the injured plaintiffs. If the plaintiff succeeds at trial, the CMPA pays the damages on behalf of the medical doctor. The complicated funding of the CMPA is best left to another post on its own. For now, I want to highlight how risky these cases are and the need for highly qualified and appropriate expert witnesses.

First, some disheartening statistics for injured patients. According to the CMPA 2018 Annual Report, across Canada there were 778 resolved medical malpractice legal actions. Of these resolved cases 448 or 57% were dismissed, discontinued or abandoned – the injured plaintiff received nothing. Two hundred and seventy-six were settled and the terms of settlement are confidential. The remaining 61 cases went to trial. Of these 61 cases that went to trial 53 or 87% of the cases were for the defendant physician. Only 13% of the injured plaintiffs who went to trial were actually successful.

One of the reasons that medical malpractice cases are so challenging is the critical need for expert medical evidence. As a plaintiff, unless you can call expert evidence that the defendant doctor breached the standard of care expected of a reasonably competent doctor, you will lose the case. Finding the right expert for a case can be time-consuming, difficult and expensive. The importance of having the right expert evidence was highlighted in the recent Alberta case of Anderson v. Harari, 2019 ABQB 745 (Canlii). In that case, the plaintiff, Robert Anderson injured his right ankle and attended the Rockyview General Hospital (RGH) for his injury. The defendant, Dr. Maya Harari treated Mr. Anderson in the emergency department. Dr. Harari diagnosed a sprained ankle and discharged him from the hospital. Later that day, Mr. Anderson’s x-rays were read by a radiologist, Dr. Donnelly who reported that Mr. Anderson had a non-displaced fibular tip avulsion fracture. Mr. Anderson did not discover that his ankle was fractured until after he saw his family physician almost three months later. He alleged that Dr. Harari failed to examine, misdiagnosed and failed to properly treat his ankle injury. He alleged that Dr. Donnelly was negligent for failing to report other fractures and abnormalities with his right ankle when she reviewed his x-rays.

Mr. Anderson lost the trial.

To prove his case, Mr. Anderson called Dr. Gootnick, a radiologist from California to provide an expert opinion. The Court refused to qualify Dr. Gootnick as an expert who could provide an opinion on the standard of care of a radiologist in Alberta. This was a big strike against Mr. Anderson. Without an expert, he could not prove his case against Dr. Donnelly.

For the case against Dr. Harari, Mr. Anderson called Dr. Dyck as his expert on the standard of care of an emergency physician. Unfortunately, for Mr. Anderson, Dr. Dyck did not have the necessary qualifications, training, education or experience to provide an opinion on an emergency physician. The Court found that Dr. Dyck was not qualified to testify as to the standard of care expected of an emergency physician. This finding was another big problem for Mr. Anderson and, ultimately, the end of his case.

This case is a lesson to all who practice medical malpractice law. In almost every case, success depends on having the right expert who is qualified in the right field of medicine to provide an opinion that the Court can rely on and that is persuasive to the issues at hand. A plaintiff who fails to call the right expert evidence is doomed to fail.