Updated October 16, 2024
Canada’s common law may be a bit confusing and challenging to understand. But did you know that medical negligence cases in Canada are guided by common law or case law? Reading on some of these cases might give you an advantage, especially if you plan to file a case of medical negligence.
What are the biggest medical negligence cases in Canada?
Canada has a lot of rulings on medical negligence and medical malpractice. These cases may be ranked as the biggest or the most influential medical negligence cases in Canada in terms of:
- the severity of the medical negligence or malpractice at that time
- the amount of settlement reached or damages awarded by the court
- their impact on future medical cases or the principle it put forward for Canada’s common law
Knowing these important cases will give you an overview of how your case might move forward. It can also give you an idea of the type of evidence you must prepare to support your claims and the arguments that these cases have used.
Sylvester v. Crits et al.
As early as the 1950s, Canada’s common law had provided plaintiffs (e.g., the patient, their family, heirs, or estate) with the definition of “standard of care.” If your doctor or medical practitioner breaches this standard of care, this will give rise to a case of medical negligence against them.
This is discussed in Sylvester v. Crits et al., [1956] S.C.R. 991, one of the most important medical negligence cases in Canada. Here, the Supreme Court of Canada (the Court) affirmed the decision of the Ontario Court of Appeals in holding the anesthetist liable for the injuries caused to an infant patient.
In establishing the standard of care, it was held that every medical practitioner must demonstrate a reasonable degree of skill and knowledge. They must also exercise a reasonable degree of care when attending to patients.
In this case, Dr. Sylvester, an anesthesiologist, was held liable for medical negligence when an explosion occurred during a tonsillectomy. This caused severe burns to the infant, John Crits, plaintiff in this case.
Boyd et al. v. Edington et al.
While your doctor or surgeon may be protected by the Canadian Medical Protective Association (CMPA), this should not stop you from being awarded the appropriate amount of damages set by the court.
Boyd et al. v. Edington et al., 2014 ONSC 1130 is considered one of the biggest medical negligence cases in Canada because of the amount of damages awarded to the plaintiff. In this case, $15 million was awarded in favor of the plaintiff, Danielle Boyd.
The Superior Court of Ontario held that Dr. Richard Edington was negligent in responding to Boyd when she was rushed to the hospital for what could have been diagnosed as stroke. The Court said that Dr. Edington did not meet the standard of care when:
- he failed to diagnose that Boyd was already having a major stroke
- he wrongly prescribed medications for Boyd
- he did not immediately reassess Boyd when called by the hospital nurse’s attention
Reibl v. Hughes
When your case involves consent regarding a medical procedure, the case of Reibl v. Hughes, [1980] 2 S.C.R. 880 may give you some additional perspective. It’s now one of the most influential medical negligence cases in Canada.
The Court in this case proposed a new test to determine whether there has been a lack of informed consent in surgeries and other medical procedures. This test — the modified objective test — states that a patient’s informed consent must be based on the perspective of a reasonable person. This must also be related to the plaintiff’s (or the patient’s) overall circumstances.
In this case, John Reibl filed a case for battery and negligence against Dr. Robert Hughes, his surgeon. Reibl argued that his consent to the surgery performed by Dr. Hughes was not an informed one because Dr. Hughes failed to tell him of the chances that he may be paralyzed after the surgery.
The Court held that a reasonable person in Reibl’s position would have refused the surgery. Reibl’s award of damages, in the amount of $225,000, was reinstated by the Court.
Watch this video to know more about medical negligence and malpractice in Canada:
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Clements v. Clements
Claiming medical negligence against your doctor may sound easy when an injury or a complication occurs after your medication or surgery. In another important medical negligence case in Canada, the Court provided plaintiffs with a test to see whether the circumstances would allow them to recover damages against the defendant.
This is the case of Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, where the Court established the “but for” test. This test requires that the plaintiff prove that they would not have been injured were it not for the defendant’s negligence. Stated differently, the concept of the but for test would be: “I would not have been injured but for the defendant’s act or negligence, which has now resulted in my injury.”
This case involved a motorcycle accident between a husband and wife. Nevertheless, the but for test has been applied by the courts to determine the causation (or the relationship) of the patient’s injury and the doctor’s acts or omissions in medical negligence cases.
‘Trilogy cases’ limiting the award of damages
There is a limit set by the Court on the amount of general damages a plaintiff can recover. This is the common law principle established in the “trilogy cases on damages” which were rendered by the Court at the same time in 1978. These cases are:
- Andrews v. Grand & Toy Alberta Ltd., [1978] 2 SCR 229
- Arnold v. Teno, [1978] 2 SCR 287
- Thornton v. School District No. 57 (Prince George) et al., [1978] 2 SCR 267
When these cases were decided, the limit on general damages was capped at $100,000. But due to inflation, this amount was adjusted and is now at $445,000 as of 2023. You may want to consider these important common law principles when deciding on the award of damages you’re going to claim from the defendant.
As an exception, the cap on damages does not affect the computation of other damages such as pecuniary damages, also called special damages or out-of-pocket damages. These damages must be based on actual expenses or figures, which may inflate the total amount of damages to be awarded to the injured party, on top of the capped general damages.
Here’s a video of the most common types of medical malpractice claims in Canada:
Read some of the actual cases as the costliest examples of medical negligence in Canada in this article.
Nesbitt v. College of Physicians and Surgeons of British Columbia
As a plaintiff in a medical negligence case, it’s critical to file your claims as soon as possible. If not, your provincial limitation statutes may bar you from filing your case, preventing you from recovering compensation from the alleged negligent parties.
A case in point for this is Supreme Court of British Columbia decision in Nesbitt v. College of Physicians and Surgeons of British Columbia, 2024 BCSC 1661. Applying the two-year limitation period under the Limitation Act of BC, the court struck down the professional negligence claims against the defendant-doctors in this case.
In holding that the claim is already statute-barred, the court provided the following timeline:
- September 30, 2018: when the limitation period started running because this is when the alleged economic damage started to occur due to the defendant’s professional negligence; also called the date of discovery
- September 30, 2020: when the claim would have normally expired, which is two years after the running of the limitation period or after the date of discovery
- September 30, 2021: the new limitation period, because the original limitation period was extended by one year, following the Emergency Program Act during the COVID-19 pandemic
However, the claim was only filed on June 3, 2022, way beyond the extended limitation period of September 30, 2021.
There are other claims in this case that the court either allowed to be amended or was struck down. It’s still worth noting that limitation periods apply in medical negligence cases in Canada. It just means that when you’re a victim of malpractice or negligence, you must reach out to a medical negligence lawyer so that your claims will be filed immediately.
The cases on collateral benefits as reductions to claims
Another importance of immediately reaching out to a lawyer is because computing compensation in medical negligence cases may not be simple mathematics. Common law has continually guided the bench and the bar in what should be included and excluded in the amount of damages, such as collateral benefits.
One important Supreme Court judgment on this is the case of Cunningham v. Wheeler; Cooper v. Miller; Shanks v. McNee, [1994] 1 S.C.R. 359. Below is the summary of what can or cannot be deducted from the compensation to be awarded by the court in torts cases:
- private insurance policy (Cunningham case): should not be deducted from the claim for lost wages if it’s paid by the injured party in some manner (e.g., an insurance policy through a collective agreement, which the injured party paid through deductions in their hourly wages)
- disability benefits (Cooper case): should not be deducted if it’s in an insurance paid by the injured party (e.g., even though the employee only contributed for 30% and the rest was paid by employer, since the employer’s share to the fringe benefits were also deducted from the employee’s total hourly wage)
While these cases involve motor vehicle accidents, it just shows that the computation of damages in personal injury claims may evolve based on future case law.
How can medical negligence cases in Canada be proved?
Common law has laid down the elements of medical negligence cases that the injured party must prove to hold the defendant liable for damages. For instance, in the Clements case, the Court provided the following elements of medical negligence cases:
- a presupposed relationship between the plaintiff and defendant
- the relationship is based on the existence of a duty of care
- the defendant breaches this duty of care and causes injury to the plaintiff
If proved by the plaintiff, it would make the defendant liable for compensation to the plaintiff for the injury they have suffered.
The “but for” test and the “material contribution” exception
To repeat, the causation between the defendant’s acts and the plaintiff’s injury must be established using the but for test. Although parties must keep in mind the exception to this test, which was also stated in the Clements case.
Without showing factual but for causation, a plaintiff can still recover based on “material contribution to risk of injury.” Here, the defendant will still be liable if they materially contributed to the risk of the plaintiff’s injury.
The “material contribution” exception will apply when it cannot be determined which of the several negligent acts by different actors caused the injury, but it can be established that one or more of them actually caused it.
What are the defenses against medical negligence cases in Canada?
Your role as a plaintiff does not only end in establishing the elements of medical negligence, but also in disproving any defenses that may be set up by the defendant. Here are some examples of these defenses:
- plaintiff failed to prove one or all the elements and tests (e.g., insufficient evidence) to hold the defendant liable for medical negligence
- defendant merely observed a practice that is generally followed and approved among the members of the medical profession
- defendant adhered to any of the two competing and acceptable schools of thought, as this amounts to acceptable standard of care
Medical negligence cases in Canada: the important decisions to know of
Given the laws and rules to follow, filing medical negligence cases in Canada will be difficult, but not impossible to be won. With the right lawyer on your side, who is knowledgeable of these common law principles, justice will be served and compensation for your injuries will be possible.
Want to know more of other important and biggest medical negligence cases in Canada that may be similar with your case? Talk with any of the Lexpert top-ranked law firms for medical negligence in Canada.