Expert reports

Ontario Court of Appeal Reaffirms the Importance of Expert Reports in Medical Malpractice Proceedings

Typically, a plaintiff in a medical malpractice case must submit an expert medical report that is supportive of their case and complies with certain requirements. The Court of Appeal’s recent decision on a Summary Judgment motion in a medical malpractice matter demonstrates the importance of bringing sufficient evidence to support one’s claim, including an expert opinion.

In this medical malpractice case, an injured plaintiff had not submitted a proper expert report in support of her position that her treating dentists had breached the standard of care and that she had been injured as a result.

Lawyers representing the dentists successfully brought a motion to dismiss the action by “Summary Judgment” (i.e.- without a trial), by arguing that patient had no proper expert report to support her claim.

The original motion Judge dismissed the patient’s medical malpractice claim on this basis.

The patient appealed and the Court of Appeal overturned the motion Judge’s ruling on the basis that, although the patient had not served an expert report, the dentists had also failed to bring evidence establishing the merits of their defence. Faced with insufficient evidence, the Court of Appeal concluded that summary judgment could not be granted.

What Happened?

A patient sued for medical malpractice in 2013 seeking damages against two dentists following a dental surgery performed in 2009. The patient was self-represented throughout most of the process.

In December 2014, lawyers for the dentists informed the patient that unless she provided an expert report to support her medical malpractice claim, they would file a motion requesting summary judgment (i.e.- a decision from the court made without a full trial where the court will dismiss the case if there is no genuine issue for trial”).

The Original Motion for Summary Judgment

The patient did not provide the expert report requested, and the defence lawyers moved forward with their request for summary judgment.

They argued that the patient’s medical malpractice claim should be dismissed because she had not provided “any documentation in support of the allegations raised in [her] Statement of Claim” and had also not provided “any qualified expert report establishing a breach of the standard of care provided by the [dentists]”.

Neither of the dentists filed an expert report on the issue of standard of care.

In response to the request for an expert report, the patient filed an affidavit explaining the challenges that she was facing as a self-represented litigant with no legal training. She also outlined several medical and financial issues that she was experiencing.  Approximately one week before the summary judgment motion hearing, the patient filed another affidavit indicating that she was looking to retain an expert and would be able to comply with the request once she had found one. Attached to the affidavit was a one-page letter from a dentist based in New York State which stated that the two dentists that the patient was suing had not met the appropriate standard of care.

Lawyers for the two dentists filed an affidavit in response noting that the New York State dentist’s license had expired in 2013 and that he was listed as “inactive”.

The Motion Judge’s Decision

The motion judge granted the requested summary judgment and dismissed the patient’s medical malpractice claim on the basis that she had failed to file an expert report that could support her allegation that the two dentists had not met the standard of care when performing surgery on her.

The motion judge found that the New York State dentist’s letter was inadmissible as an expert report, since it was not a formal affidavit on which that dentist could be cross-examined. In addition, the letter did not meet the standards of an expert report as outlined in the Rules of Civil Procedure (i.e.- the rules that govern legal proceedings in Ontario).

The motion judge further noted that, even if the letter could be admitted as an expert report, he could not have given it any weight because it lacked specifics about whether the actions of the dentists actually caused the injury suffered by the patient.

The motion judge referred to earlier case law which states that a patient has no hope of success in a medical malpractice case unless there is supporting expert opinion.

The patient appealed to the Court of Appeal.

The Court of Appeal Decision

The Court of Appeal found that the motion judge had made an error when he granted summary judgment because the two dentists had not met their evidentiary burden even though they were obligated to “put their best evidentiary foot forward”. The Court of Appeal set aside the summary judgment.

The Court addressed each of the plaintiffs’ arguments:

1. Admissibility of the Plaintiff’s Letter

The Court of Appeal concluded that there had been no error in the motion judge’s decision that the letter was inadmissible as an expert report.

The Court found that the New York State dentist’s letter did not meet the requirements of an expert report, as outlined by the Rules of Civil Procedure. Namely, it did not provide sufficient reasons for the opinion that the dentists’ the patient was suing had not met the standard of care.  In addition, the patient had not indicated that she was intending to rely on the letter as an expert report.

2. Fairness and Justice

The patient argued that the dismissal of her medical malpractice was not a “fair or just result” since she was a self-represented litigant with limited financial resources, and that the motion judge should have provided her with “some leeway” on procedural issues.

The Court of Appeal agreed that that judges are required to accommodate a self-represented person’s unfamiliarity with the litigation process in order to allow them to present their case to the best of their ability. The Motion Judge tried very hard to do exactly that. However, the self-represented party must follow the Rules and any accommodation provided to a self-represented person must also respect the rights of the represented party. Nevertheless, the party that does have legal representation must ensure that it complies with its own obligations under the Rules of Civil Procedure and that it does not use the rules to take unfair advantage of a self-represented individual.

Here, the dentists had requested the summary judgment. They therefore had the responsibility of persuading the motion judge, through evidence, that there was no genuine issue that required a trial:

They were not entitled to rely merely on the allegations in their statement of defence; the respondents were required to put their best evidentiary foot forward.

They did not do so. Instead, they submitted to the motion judge that the decision of this court in Kurdina v. Dief required the dismissal of the [patient’s] action because the absence of any expert evidence in support of her claim demonstrated that no genuine issue requiring trial existed. The motion judge accepted that argument. In my respectful view, he erred in so doing in the circumstances of this case.

The dentists did not file any evidence that would establish the merits of their defense. They failed to file their own affidavits explaining the treatment they had given the patient and failed to file their own expert report on the issue of standard of care. The only documents they filed were two affidavits: one providing a history of the claim, and one questioning the New York State dentist’s qualifications.

In this case, the Court of Appeal found that if the dentists had filed evidence addressing the merits of their defense, it would have been open to the motion judge to treat the patient’s failure to deliver an expert report that complied with the Rules of Procedure as a reason to dismiss her action. However, because the dentists also failed to file any such evidence, it was not open to the motion judge to grant summary judgment.

The Court of Appeal also concluded that the defendants had tried to use the Rules to “unfairly accelerate the delivery of an expert’s report by the appellant”.

The Court of Appeal granted the patient’s appeal, set aside the motion judge’s earlier judgment dismissing the action, and awarded the patient $5,000 for costs she had incurred bringing the appeal.

Lessons Learned

Bringing a medical malpractice claim without the assistance of a medical malpractice lawyer can be extremely challenging. As the Court of Appeal notes in this case, while self-represented litigants may be provided with some leeway by judges as acknowledgement that they do not have legal training, they are still expected to comply with the Rules of Civil Procedure.

Medical malpractice suits are complicated and highly technical, involving complex legal and medical issues. The importance of detailed and incisive expert reports cannot be understated.  A properly-run case often requires retaining many medical experts to provide evidence. These cases can take many years.

Medical malpractice claims are best handled by lawyers with extensive medical malpractice and trial experience, as well as the necessary knowledge required to guide clients through this difficult and emotional process. At Sommers Roth & Elmaleh, we have been helping patients who have been affected by medical malpractice for more than 40 years and have helped clients from all across Canada, including Ontario, Alberta, British Columbia, Saskatchewan, Quebec and Newfoundland. Call us at 1-844-777-7372 or contact us online for a free consultation.

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