Recent Medical Malpractice Case Shows What Can Happen When You Don’t Have A Lawyer

A recent case affirms the necessity of having expert medical opinion in support of a medical malpractice action. It also provides an example of the difficulty in bringing a lawsuit without a lawyer. As the Court remarked this was a complex medical malpractice case.

The doctors of a wife and mother of a family diagnosed her with terminal brain cancer. The doctors treated her with a drug used to reduce the cerebral swelling associated with brain tumours.

After she died the husband sued her doctors and the hospital. He claimed that the drug was terminated without tapering off. He also claimed that informed consent to its use was not obtained as various risks were not disclosed.

A motions judge dismissed the case because of lack of expert evidence.The defendants had taken the position that the doctors had met the standard of care in their treatment. They also stated that the allegations against them were not the cause of death which was a result of the brain cancer. They supported their position with 3 expert reports in addition to their own evidence.

The husband represented himself. He appealed to the Ontario Court of Appeal which heard the case on January 20, 2017, Hirchberg v. Branson Drug Store, 2017 ONCA 62. The Court dismissed the appeal.

The husband was required to put forward all the necessary evidence to establish a genuine issue requiring a trial. This obligation required him to provide his own expert reports. The issues of standard of care and causation must be addressed by expert evidence.

The husband had filed declarations of a doctor providing information about the drug that was used and about what had happened in another case. The Court agreed that this doctor was not qualified to provide opinions on standard of care and causation. Furthermore his declarations did not address the particular circumstances of the case. By not having expert reports on the issues that needed to be addressed the husband failed to discharge his onus of proof.

On the issue of informed consent the husband also lost. The evidence showed that the wife and her powers of attorney for personal care were advised of the material risks of the drug and consented to its use. As well there was no conflict in the evidence that would require a trial.

Finally in dismissing the appeal the Court required the husband to pay $9000.00 in legal costs to the defendants.

The husband in this case would have benefited from the use of a lawyer. If he truly had no case, he presumably would have been advised not to proceed with the appeal. The cost of such advice would certainly be less than what the husband did pay out in legal costs to the defendants.

The Role of a Lawyer

Also a medical malpractice lawyer is able to review and analyze the merits of the action. A lawyer’s training and experience assists in this process. In analyzing a case the lawyer will:

• identify the issues
• identify the facts relevant to those issues
• consider the application of the law to those facts
• determine the expert medical opinions required
• instruct medical experts on the issues their opinions should address
• consider the impact the expert opinions will have on the outcome of the case

Medical malpractice cases involve complex medical and legal issues. Therefore this is one of the areas of law where litigants will truly benefit from retaining a lawyer to advise and represent them.