Do plaintiffs always have to rely on expert opinion evidence to prove medical malpractice?

 Is expert opinion evidence always required to prove a breach of the standard of care in a medical malpractice case? The answer, in Vandergiessen v. Trillium Health Centre (Mississauga), 2010 ONCA 379, is “no, not really”:

[5] It is clear from what the motion judge stated to the appellant during the course of the summary judgment motion proceedings and from his very brief reasons disposing of the motion that he granted summary judgment solely on the ground that the appellant’s failure to provide an expert opinion was necessarily fatal to her claims.

[6] In our respectful view, the motion judge erred by granting summary judgment on this record. Not all claims against medical doctors require expert opinion evidence that the applicable standard of care was not met: see ter Nuezen v. Korn, [1995] 3 S.C.R. 674 at paras. 40-49. While the appellant may be unable to establish elements of her claim without an expert opinion, the claims advanced by the appellant against the respondents involve more than a typical allegation of medical malpractice. The appellant claims that statutory procedures and statutory conditions for her involuntary committal were not followed or satisfied. In our view, these allegations fall into the category of claims that may be established without an expert opinion. They are not matters that rest solely upon the opinion of experts as to whether the requisite standard of care was met.

[7] In our view, given the specific nature of the allegations advanced in the pleadings against them, the respondents failed to satisfy the burden that rests upon them to lead evidence demonstrating that there was no triable issue.

Leave a Reply

Please log in using one of these methods to post your comment: Logo

You are commenting using your account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: