This Ottawa summary judgment decision again highlights that lack of expert evidence may be fatal to a medical malpractice case.
Ms. Abdul-Hussein, the self-represented plaintiff in this matter, sued Dr. Werner Zabel, an ophthalmologist. Ms. Abdul-Hussein alleged he had performed a cataract surgery and laser capsulotomy negligently and failed to obtain her informed consent. She framed her claim as one of battery and alternatively, negligence, also claiming that the signatures on the defendant doctor’s consent forms were fraudulent.
After repeated prompting and failure of the plaintiff to serve an expert medical report, Dr. Zabel brought a motion for summary judgment to dismiss the plaintiff’s action. The motion was granted. The plaintiff’s claim was dismissed.
The Court affirmed that a plaintiff’s failure to serve expert medical evidence in support of their medical malpractice claim is fatal unless it is the clearest of cases. This case did not fall within this narrow exception and expert evidence was required. Without medical evidence in support of her claim, the plaintiff’s action could not succeed.
The Court noted:
“In medical negligence actions, expert evidence is required to prove that the treatment provided by the defendant physician breached the standard of care and that the breach was causally connected with the plaintiff’s injury. This is because “[m]edical malpractice cases are complex … and judges and juries lack the expertise necessary to assess difficult questions such as causation, standard of care, and breach of the standard of care, without the assistance of expert reports.
Except in the clearest of cases, the absence of supportive expert evidence is fatal to the plaintiff’s claim.”
Expert evidence is equally required in informed consent cases.
To establish a lack of informed consent, the plaintiff must prove that the defendant physician failed to disclose a material risk or an indicated treatment alternative and that this caused the plaintiff’s damages. Causation must be determined on both a subjective and objective basis: the plaintiff must show that the plaintiff would not have consented to the procedure and that a reasonable person in the plaintiff’s circumstances would not have proceeded with the procedure, even if adequately informed.
Expert evidence is relevant to determining the material risks of a particular procedure, if the alternative treatment options were medically reasonable and whether causation is established.
The defendant physician filed an affidavit attesting to the care he gave, as well as an expert opinion opining that he had met the standard of care in every respect, with an affidavit from that expert.
The plaintiff had submitted an unsworn report of a Certified document examiner from Oklahoma which opined on the authenticity of the plaintiff’s signature on the consent documents, as well as a decision from the Complaints and Reports Committee of the College of Physicians and Surgeons of Ontario. The court noted that this decision and reasons for it are inadmissible in civil proceedings. The plaintiff did not provide any expert evidence on Dr. Zabel’s actual medical care.
The Court also noted that this claim, framed in battery, and alternatively, negligence, was not a proper one for battery: an alleged failure of a physician to make adequate disclosure to a patient gives rise to a claim in negligence. It does not vitiate consent and give rise to a claim of battery.
The plaintiff had been given many opportunities to provide relevant and supportive medical evidence. Even opposing counsel had sought to assist her within the bounds of his professional obligations to his own client, demonstrating model behaviour of how counsel should behave towards a self-represented party, “with courtesy, civility and good faith”. The plaintiff received every reasonable accommodation from the court and Dr. Zabel had been “scrupulously fair” to her.
