Expert Knows Best – The Role of Expert Evidence in Medical Malpractice
In the recent decision of Abdul-Hussein v. Zabel, 2024 ONSC 4035, the Ontario Superior Court of Justice reiterated the important role expert evidence plays in medical malpractice claims.
Background
The self-represented plaintiff, Ms. Abdul-Hussein, consulted with the defendant, ophthalmologist Dr. Werner Zabel, for a cataract surgery consultation. The defendant recommended that the plaintiff undergo a cataract extraction and lens replacement in the right eye. Following the operation, the plaintiff began reporting concerns of unclear vision.
Based on the plaintiff’s symptoms, the defendant recommended a laser capsulotomy for the right eye. The plaintiff agreed to undergo the laser capsulotomy on the right eye. A month after the second procedure, the plaintiff developed new symptoms. The defendant indicated that the implant would take several months to settle and provided different surgical alternatives. The plaintiff proceeded to attend with two other ophthalmologists for a second opinion and advised the defendant she was still uncertain about her options.
In November of 2018, the plaintiff filed a Statement of Claim against the defendant alleging he had performed cataract surgery and laser capsulotomy negligently and failed to obtain her informed consent. Additionally, the plaintiff framed her claim in battery and alternatively, negligence, claiming the signatures on the defendant’s consent forms were fraudulent.
The defendant brought a summary judgment motion seeking dismissal of the action. The defendant filed an affidavit attesting to the care he gave. An expert opinion from another ophthalmologist opiningthatthe standard of care was met in every aspect, was also filed attached to an affidavit from that expert.
The plaintiff in turn submitted an unsworn report from a certified examiner in Duncan, Oklahoma, who commented on the authenticity of the plaintiff’s signature on the consent documents. The report did not mention or opine on the medical care administered by the defendant.
After repeated prompting and failure of the plaintiff to serve an expert medical report, the defendant brought a motion for summary judgment to dismiss the plaintiff’s action.
Analysis
As outlined in rule 20.04(2) of the Rules of Civil Procedure, the court will grant summary judgment if it is satisfied that there is no genuine issue requiring a trial with respect to the claim or the defence, or if the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.
In its analysis, the Court referred to the principles discussed in Sanzone v. Schechter 2016 ONCA 566, that on a motion for summary judgment, the moving party bears the evidentiary burden of showing that there is no genuine issue requiring a trial. If the moving party has discharged its evidentiary burden, the onus shifts to the responding party.
Decision
Justice Rees granted the defendant’s summary judgment motion and dismissed the plaintiff’s action.
Reasons
In its analysis, the Court stressed that failure to serve expert medical evidence in support of a medical malpractice claim is fatal unless it is the clearest of cases. Without medical evidence in support of the claim, the action could not be successful.
The Court stated:
“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.”
In addressing the concept of informed consent cases, the Court noted that expert evidence is equally required to determine the material risks of a particular procedure, if the alternative treatment options were medically reasonable, and whether causation is established. The Court noted that this was not a proper claim to be framed in battery, as an alleged failure of a physician to make adequate disclosure to a patient gives rise to a claim in negligence. The Court found that it did not vitiate consent and give rise to a claim of battery.
In coming to its decision, the Court was satisfied that the defendant, by filing an affidavit and the expert opinion of a qualified ophthalmologist, was able to discharge his burden and show that there was no genuine issue requiring a trial with respect to the plaintiff’s claims. By contrast, the Court noted that the plaintiff failed to provide any expert medical opinion on informed concern, the standard of care, and causation to prove her claim of negligence. The Court found that the unsworn report provided by the plaintiff simply addressed the authenticity of the signed forms rather than the care provided by the defendant.
The Court concluded that in this case, the plaintiff’s claim required supportive expert medical evidence, and her failure to file this fatally affected her action. The Court did not view this matter as the clearest of cases to warrant the exclusion of expert evidence. It was the Court’s view that the plaintiff required expert evidence of her own to present her case and rebut the evidence provided by the defendant’s expert. The plaintiff was given many opportunities to provide relevant medical evidence in support of her claims. The Court found that the plaintiff failed to discharge her burden to prove that her claims had a real chance of success.
Take Away
This decision demonstrates how essential expert evidence is for the success of medical malpractice claims and the Court’s continued commitment to administering fair and efficient resolution of legal disputes. Additionally, it serves as a reminder for litigants of the essential elements required to establish their claims in medical negligence and similar legal contexts. Given how technical and highly specialized medical malpractice cases are, expert evidence continues to be a crucial aspect of shaping the trajectory of legal proceedings.