In a medical malpractice law suit the plaintiff must meet certain requirements before being allowed to proceed to trial. If these requirements are not met then the defence will bring a motion for summary judgment to dismiss the action prior to trial. In effect this motion acts as a gatekeeper to weed out cases that do not have a triable issue. These motions are common and often successful when the plaintiff is not represented by a lawyer.
Commonly the issues involved in a medical malpractice action relate to diagnosis and the application of clinical skills. The skill of diagnosis and treatment involve years of study in medical schools, and experience in hospitals. A judge no matter how sympathetic will not accept the uninformed opinion of the lay plaintiff, even if bolstered by the plaintiff’s interpretation of medical texts.
In order to succeed a plaintiff needs to provide expert evidence to establish the appropriate standard of care, that the defendant doctor fell below it, and that this breach of the standard of care caused the plaintiff’s damages or condition. With that in mind we set out some of the principles applicable to the use of expert evidence in the disposition of medical malpractice lawsuits prior to trial.
1. The plaintiff in a medical malpractice law suit must have an expert medical opinion.
On a motion for summary judgment in a medical malpractice action the plaintiff must adduce expert evidence to support the allegations made to show that there is a genuine issue for trial. Without supportive expert reports from the motion succeed and the action will be dismissed.
2. The medical opinion evidence must be from the same specialty as the defendant doctor.
A plaintiff is required to lead expert evidence of a physician practising in the same field as the defendant attesting to the defendant’s negligence.
3. The expert medical evidence must be available for use on the motion for summary judgment.
In the absence of admissible expert evidence to support the plaintiff’s claim, the court will infer that the plaintiff has been unable to obtain any or adequate expert evidence to support the allegations against the defendant. It is not enough to state that more favourable facts will be available at trial. The court is entitled to assume that the record before it contains all the evidence the parties will present at trial.
4. The defendant need not file an expert medical opinion.
On a motion brought by the defendant for summary judgment there is no obligation on the part of the defendant to provide expert medical opinions in support of the defence position. Even if a cross-examination of the defendant’s expert reveals that a flawed opinion, or an admission is obtained in response to a hypothetical question that the injury suffered by the plaintiff can be caused by negligent conduct on the part of the defendant will not suffice to avoid judgment dismissing the action in the absence of a supportive expert opinion for the plaintiff.
5. Expert opinion evidence is required on the issue of informed consent.
An allegation of lack of informed consent is an allegation of negligence which must be supported by expert evidence. The plaintiff must provide expert evidence from a physician to establish whether unexplained risks were material, whether the failure to disclose such risks fell below the standard of care, and whether such risks were the cause of the plaintiff’s injury. The issue of whether a reasonable person would have consented to the procedure even if informed of the material risks must also be addressed.
6. Some medical evidence is required to support an inference of causation.
In a malpractice law suit, the plaintiff must establish that the treatment or lack of treatment in question was the cause of the injury. The legal or ultimate burden of establishing causation is on the plaintiff. There must be some medical testimony, no matter how tentative, proffered to support the inference of causation. Where the defendant has led affirmative medical evidence leading to a medical conclusion then the plaintiff must provide medical evidence in support of the theory of causation.
7. Exceptions to the rule requiring expert evidence are few and far in between.
There will be rare cases in which the standard of care may itself be judged to be inadequate. This will only be where the standard practice is fraught with obvious risks such that anyone is capable of finding it negligent, without the necessity of judging matters requiring diagnostic or clinical expertise. There may also be other situations such as where the wrong limb was amputated which also do not require diagnostic or clinical experience to determine whether there was negligence. It is important to keep in mind that it is only in the clearest of cases that an exception will be made.
In conclusion it cannot be emphasized enough that an essential ingredient of a medical malpractice lawsuit is expert medical evidence in support of the plaintiff’s case. For more information on the requirements to succeed in a medical malpractice lawsuit refer to our malpractice case evaluation page.