Medical Malpractice Claims - Negligence or Error of Judgment?

As per Wikipedia, Medical malpractice is a legal cause of action that occurs when a medical or health care professional deviates from standards in his or her profession, thereby causing injury to a patient.

Medical Malpractice claims are not uncommon. And there have been numerous lawsuits alleging professional negligence, against medical practitioners, causing injuries and/or incurring damages. But sometimes what may appear as a professional negligence on part of the medical practitioner, may not be negligence when it is scrutinised under the legal lens. It may not qualify as professional negligence but may only be recognised as an error of judgment on part of the medical practitioner. And no liability is attached to the medical practitioner for making an error in judgment. Though a series of errors of judgment cumulatively may give rise to a case of negligence, but no single error of judgment usually would result in finding of negligence against the practitioner.

In Ghiassi v. Singh, 2017, the Ontario Superior Court of Justice analysed the defence of an error of judgment, stating:  

The defence of error of judgment should be understood to mean an error which the health care practitioner made while exercising reasonable care. It is a defence in which the health care practitioner admits having made an error but denies negligence because she possessed and exercised the skill, knowledge, and judgment of the normal and prudent practitioner of the same experience and standing

In Bafaro v. Dowd, 2008, Madam Justice Carpenter-Gunn commented:

An error in judgment does not amount to negligence where the physician appropriately exercises clinical judgment.

So how does one figure out the difference as to what constitutes negligence and what constitutes an error of judgment. To understand the key differences, one must understand how a medical malpractice claim is analysed.

Medical Experts

It is not possible for the plaintiff to establish a professional negligence claim against a medical practitioner without a reliable and credible Expert evidence supporting the allegations. This evidence is required by the parties involved in the claim as well as by the triers of justice who may not be an expert in the related field of medical science. Based on the expert evidence, the judges would decide on whether the reasonable standard of care was met by the practitioner or not.

In Reid v. Livingstone, 2004 Cameron J. stated:

In order to establish whether the conduct of a person engaged in a technical occupation not within the expertise of the ordinary person, such as a doctor or nurse, met the standard of care required of them…the plaintiff must provide evidence of a person qualified and experienced in the field of the conduct at issue that the defendant’s conduct in the circumstances failed to meet the standard of care the defendant owed to the plaintiff.

However, as stated by the Ontario Superior Court of Justice in Revell v. Heartwell, 2008

It is important to remember that in determining the issues before the court in any trial alleging negligence, it is the court, not the experts who determine the standard of care to be applied in each case.

It is thus important to note that these expert witnesses are considered like any other witnesses, and that their evidence could be accepted, could be considered in part or may be rejected in its entirety by the court.

The reasonable standard of care based on the available expert evidence will be determined by the court, and NOT by the expert.

Standard of Care

The standard of care must be reasonable, and no professional is held to perfection. It should be reasonable to the extent that any other professional of the same knowledge, skill would have acted in a way the practitioner acted at the material time. The practitioner should abide by the reasonable standards accepted in the profession, must use clinical judgment in determining the course of action and should meet the guidelines established in the profession by the relevant authorities. Just because the course of treatment chosen by the practitioner led to damages, does not necessarily mean the practitioner could be held liable. It is important to determine answers to many questions before a decision could be reached. These could include asking questions such as what other treatments were available in the market at the material time? Did the practitioner apply reasonable clinical judgment? Could the practitioner have foreseen the loss? Is there a case history associated with such treatments? Etc. It is also important to note that the conduct of the practitioner should not be assessed with the benefit of hindsight.

The seminal statement with respect to the standard of care applicable in medical malpractice claims can be traced back to the case of Crits v. Sylvester, 1956. The Ontario Court of Appeal stated:

Every medical practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. He is bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same experience and standing, and if he holds himself out as a specialist, a higher degree of skill is required of him than of one who does not profess to be so qualified by special training and ability.

Onus of Proof

It is not surprising that the burden of proof heavily lies on the plaintiff alleging the negligence claim against the practitioner.

In Bafaro v. Dowd, 2008, Madam Justice Carpenter-Gunn commented at paragraph 22:

To succeed in an action for medical negligence, the plaintiff bore the onus of proving that the defendants had breached the standard of care of a reasonable and prudent doctor with the same training and experience, having regard to all the circumstances.

This is a significant burden on the plaintiff to prove that the case is more than an error of judgment and that the conduct of the practitioner amounts to professional negligence.

The “But For” test for Causation

The claimant/plaintiff must prove, on a balance of probabilities, that the injury or loss would not have occurred “but for” the defendant’s negligent action(s). The question needs to be asked is “but for” the defendant’s negligent action(s), would the claimant/plaintiff have suffered loss or injury? If the answer to this question is “yes” then the defendant should not be held liable. If “no”, the defendant should be held liable.

Duty of Disclosure/Informed Consent

In medical malpractice claims, one of the allegations would generally bring up the question of disclosure by the practitioner and informed consent.  

In Revell v. Heartwell, 2008, the Ontario Superior Court of Justice Stated:

In the context of an action where the patient’s claim is that the surgeon failed in his or her duty to disclose information and to obtain an informed consent, the patient must prove that had he or she been properly informed, then the decision would have been not to have the treatment……………….. The patient cannot succeed in proving causation if he or she would have proceeded with the operation notwithstanding the surgeon’s breach of his or her duty of disclosure.

In view of the foregoing, the following must be kept in mind while investigating a medical malpractice claim.

1.      An error of judgment is different from negligence.

2.      One should not be held liable for an error of judgment.

3.      The onus is on the plaintiff to prove that the conduct was not an error of judgment but was negligence on part of the practitioner.

4.      Expert evidence will play a crucial role in medical malpractice claims.

5.      Standard of Care is set by the courts, and not by the experts.

6.      The benefit of hindsight should not be used in assessing a practitioner’s conduct.


The content of this article is intended to provide general guidance only. A specialist must be consulted for specific circumstances.

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