Negligence is a legal theory by which a person may be held legally responsible for injury or loss to another person, provided that loss or injury was caused by their careless act or omission. Professional negligence is a subset of negligence which applies where the defendant has represented themselves as having more than average skills and abilities (i.e., being represented themselves as a professional).
Elements of negligence
In order to be successful in a professional negligence action, the plaintiff must prove the following four elements on a balance of probabilities:
- The defendant owed the plaintiff a duty of care;
- The defendant breached the standard of care;
- The plaintiff suffered an injury or loss; and
- The breach of the standard of care caused the plaintiff’s injury or loss (known as “causation”).
The existence of a duty of care is usually not a point of contention in professional negligence: a professional will generally owe duty of care to their client. For example a physician owes a duty to their patient. Whether a plaintiff has suffered an injury or loss in fact, is also usually readily ascertainable. Consequently, professional negligence cases often turn on the standard of care or causation.
Standard of care
The standard of care is the measuring stick against which the professional’s conduct is compared. Professionals are not held to a standard of perfection and an unfavourable outcome or error in judgement alone is not a breach of the standard of care. Rather, every professional is required to exercise the degree of care and skill which could reasonably be expected of normal prudent practitioner of same experience and standing, in the same circumstances.
Expert evidence comes into play in defining the professional’s measuring stick, so to speak. Unless the subject matter is something nontechnical or the conduct of the defendant was so egregious it clearly falls below the standard required, expert evidence is used to assist the Court in understanding what is required of the professional in the circumstances at issue.
Causation is the term used for the relationship between the wrongful act or omission of a defendant and the injury or loss complained of by the plaintiff. A plaintiff is only entitled to recovery for those losses or injuries that were caused by, or contributed to, by a defendant. Consequently, a plaintiff must prove on a balance of probabilities that but for the defendant’s act or omission, the loss or injury would not have occurred.
Expert evidence in action
While experts are hired by the parties to the litigation, experts are not advocates for any party. Their job is to advise the Court on matters within their area of expertise. An expert owes an overriding duty to assist the Court and is required to be independent and objective. That said, winners and losers in medical malpractice and other professional liability actions often comes down to the relative strength of the expert witnesses. The following medical malpractice cases demonstrate the importance of expert evidence.
Medical malpractice is a type of professional negligence which occurs when a medical or health care professional, by act or omission, deviates from the required standard of their profession in the delivery of medical care and causes an injury to a patient. Some examples of medical malpractice include: failure to diagnose, failure to refer to a specialist and provision of substandard care.
In a medical malpractice action, where the allegation of negligence involves issues outside the ordinary knowledge and experience of the trier of fact, summary dismissal of the plaintiff’s claim is appropriate when the plaintiff has failed to adduce any supportive expert opinion.
The Standard of Care – A prudent and diligent medical professional in the same circumstances.
In Gayton v Rinholm, 2012 ABQB 232, the plaintiff, Ms. Gayton, filed a medical malpractice action against the applicant physician, Dr. Rinholm, and three other doctors. Dr. Rinholm was only involved in Ms. Gayton’s care on one occasion as the emergency room doctor when Ms. Gayton attended at the Medicine Hat Regional Hospital on February 28, 2005.
Dr. Rinholm brought an application for summary judgment dismissing Ms. Gayton’s claim against him. In support of his application, Dr. Rinholm tendered the expert report of a full time emergency physician working in Calgary and licenced to practice in Alberta by the College of Physician and Surgeons of Alberta. This expert opined that Dr. Rinholm’s treatment of Ms. Gayton was appropriate and met the standard of care of an emergency room physician practising in Alberta.
Ms. Gayton also tendered an expert report on Dr. Rinholm’s care; however, her expert was a psychiatrist licenced to practice medicine in the State of New York. He opined that there were six breaches of the standard of care by Dr. Rinholm in his treatment of Ms. Gayton.
The Court acknowledged that the appropriate standard of care in this case was not obvious. The Court went on to state about the standard of care of a physician that:
- Physicians have a duty to conduct their practice in accordance with the conduct of a prudent and diligent physician in the same circumstances; and
- In the case of a specialist, the physician’s behaviour must be assessed in light of the conduct of other ordinary specialist, who possess a reasonable level of knowledge, competence and skill expected of professionals in Canada, in the same field.
The relevant standard of care against which Dr. Rinholm’s care was to be measured was, therefore, that of a reasonably competent emergency room physician practicing in Alberta.
Ms. Gayton’s expert provided no evidence to satisfy the Court that he had any experience or expertise as an emergency room physician in Alberta or in Canada. Consequently, the Court gave his opinion no weight and Ms. Gayton had no proper evidence before the Court to support her allegation that Dr. Rinholm’s conduct fell below the standard of care of a reasonably competent emergentologist practising in Alberta. Faced with expert evidence that Dr. Rinholm’s conduct met the relevant standard of care, the Court allowed Dr. Rinholm’s application and granted summary judgment dismissing the action against Dr. Rinholm.
Causation – The standard of care and causation are different: causation is not affected by geography.
In Grivicic v Alberta Health Services (Tim Baker Cancer Centre), 2017 ABCA 246, leave to appeal to the Supreme Court of Canada refused [Grivicic], the plaintiff, Ms. Grivicic, brought an action arising from the death of her husband (the patient) from prostate cancer, alleging medical negligence by five physicians and the cancer centre.
a. Procedural History
The defendants, Dr. Wilkin, Dr. Husain, Dr. Sinnarajah, Dr. Galloway, Dr. Dushinski and the cancer centre, applied for summary dismissal of Ms. Grivicic’s action (the Application) in Master’s Chambers.
The Master summarily dismissed Ms. Grivicic’s actions against Drs. Husain, Sinnarajah and Galloway (the Respondent Physicians), but allowed some of Ms. Grivicic’s claims against Dr. Wilkin and the cancer centre to proceed. Ms. Grivicic appealed those parts of the Master’s decision which dismissed many of her claims. Dr. Wilkin and the cancer centre cross-appealed those parts of the Master’s decision which allowed some of Ms. Grivicic’s claims against them to proceed.
On appeal, the Chambers Judge upheld the Master’s decision to summarily dismiss the actions against Drs. Husain, Sinnarajah and Galloway. She allowed the cancer centre’s appeal, which resulted in a summary dismissal of Ms. Grivicic’s action against it. Finally, she upheld the Master’s decision dealing with Dr. Wilkin. Ms. Grivicic appealed and Dr. Wilkin cross-appealed to the Alberta Court of Appeal.
b. Ms. Grivicic’s appeal
Ms. Grivicic provided expert evidence in support of her claim against the Respondent Physicians, in the form of expert reports on the standard of care authored by two American physicians. Both the Master and the Chambers Judge gave little weight to that evidence. The Master held that these reports had no evidentiary value insofar as they purported to discuss the standard of care because neither physician had expertise on the standard of care in Alberta. On appeal, the Chambers Judge agreed with the Master on this point.
Ms. Grivicic argued that the Chambers Judge misapprehended the evidence, assigning too little weight to her expert reports. In particular, Ms. Grivicic argued that both the Master and the Chambers Judge erred in giving more credit to the Respondent Physicians’ expert witnesses than her experts based on the fact that the Respondent Physicians’ experts were from Canada.
The Court of Appeal acknowledged that, while “[i]t may well be that the standard of care for a particular medical specialty or medical procedure is the same in Canada and the United States”, the party hoping to use a foreign expert should produce evidence to the effect that the standards of care are the same or similar to those in Canada. Where a foreign expert does not opine on the standard of care in Alberta, the Court may give little weight to their opinion; and Ms. Grivicic did not provide any evidence of the equivalency of care in Canada and the United States. Nevertheless, the Court of Appeal considered the Chambers Judge’s findings on each of the expert reports in turn.
The Court of Appeal reiterated that the approach to determining the standard of care of physicians is to determine what is required of a prudent and diligent physician in the same circumstances; and, in the case of a specialist, to assess the conduct against that of the ordinary specialist, who possess a reasonable level of knowledge, competence and skill expected of professionals in Canada, in the same field.
The Respondent Physicians all practiced in Alberta in their respective disciplines. Dr. Husain was a radiation oncologist and Drs. Sinnarajah and Galloway were palliative care specialists. Unsurprisingly, in support of the Application, they tendered supporting standard of care expert reports authored by a radiation oncologist and a palliative care specialist.
Ms. Grivicic, conversely, filed expert reports by two American physicians: a specialist in internal medicine and medical oncology; and a specialist in cardiovascular, thoracic, and trauma surgery and surgical critical care respectively. Neither had practiced in Canada or Alberta. In addition to a number of areas of concerns with the reports noted by the Master and the Chambers Judge, the experts had failed to opine on the requisite standard of care in Alberta.
The Court of Appel held that the Chambers Judge did not err in assigning the opinions of the two American physicians no evidentiary weight. The appeal with regard to the alleged misapprehension of the evidence with respect to Drs. Husain, Sinnarajah and Galloway was therefore dismissed.
c. Dr. Wilkin’s appeal
Dr. Wilkin, an urologist, first became involved with the patient’s care in 2004 on referral from the patient’s family physician. Dr. Wilkin recommended a biopsy of the patient’s prostate, which was enlarged. Following the biopsy and a discussion of the treatment options, Dr. Wilkin referred the patient to a radiation oncologist.
Over a year later, the patient attended at the hospital in pain. Uretal stents were inserted in the patient by another physician on November 23, 2005. The following day, Dr. Wilkin saw the patient in the hospital due to complications from the stent placement. Dr. Wilkin continued to follow the patient and the stents were never removed. Ms. Grivicic alleged that Dr. Wilkin was negligent in failing to change the stents.
Both Dr. Wilkin and Ms. Grivicic filed expert reports in relation to Dr. Wilkin’s care:
- Dr. Wilkin filed an expert report by an urologist who was also an expert in the field of prostate cancer. In his report, the expert urologist opined that Dr. Wilkin had erred when he did not arrange a stent change for the patient; however, this error did not have any significant consequences for the patient (i.e. no causation).
- Ms. Grivicic submitted expert evidence from an American physician specializing in internal medicine and medical oncology. Despite not being an urologist, he gave an opinion about the changing of the patient’s stents. In his opinion, the failure to change the stents “led to kidney dysfunction and directly caused increased pain and kidney failure which directly contributed to increasing heart failure and caused [the patient’s] demise”.
Given the conflicting opinions on causation, the Chambers Judge found that there was a triable issue and declined to grant Dr. Wilkin’s application for summary dismissal.
On appeal, Dr. Wilkin submitted that the Chambers Judge erred by failing to correctly apply the principles of summary judgment. He submitted there was no evidence that he breached the standard of care and that the expert evidence provided on behalf of Ms. Grivicic should not have been assigned any weight.
The Court of Appeal disagreed and upheld the decision of the Chambers Judge for several reasons. Notably, the Court clarified that the tests for determining the standard of care and causation are different. While an American physician may not be able to speak to the standard of care in Canada, the issue of causation is different, as it is not affected by geography.
The Court of Appeal found no reviewable error in the exercise of the Chambers Judge’s discretion to allow certain of Ms. Grivicic’s claims against Dr. Wilkin to proceed. Dr. Wilkin’s cross-appeal was dismissed.
While the above cases deal with physicians and medical malpractice, the same principles apply to all professional negligence cases. When advancing or defending a professional negligence claim, it is important to remember that not all experts are created equal.
 See Stoddard v Montague, 2006 ABCA 109 at para 20.
 Gayton, supra at para 14, citing ter Neuzen v. Korn,  3 SCR 674 (SCC) [ter Neuzen] at para 33.
 Note: The action against Dr. Dushinski was discontinued before the summary judgment application was heard.
 Grivicic, at para 36.
 Grivicic at para 35, citing ter Neuzen, supra at para 33.