A plaintiff’s failure to serve expert evidence in support of their allegations of negligence or informed consent may be detrimental and expose them to potential dismissal of their action via summary judgment motion.
Justice Rees’ decision in Abdul-Hussein v. Zabel, 2024 ONSC 4035, granting summary judgment to the Defendant, Dr. Zabel, reinforces the importance of expert evidence in medical malpractice cases. Particularly, the Court reiterated that “expert evidence is equally required in informed consent cases”.
This action arose out of alleged negligent procedures performed by the Defendant ophthalmologist. The Plaintiff further alleged that the Defendant failed to obtain her informed consent. Throughout the course of litigation, the Plaintiff did not serve an expert report to substantiate breach of the standard of care, causation or the Defendant’s failure to obtain informed consent. The Court was critical of the plaintiff and noted:
Despite repeated prompting by Dr. Zabel’s counsel, and court-ordered timetables, [the Plaintiff’] failed to serve an expert medical report critical of Dr. Zabel’s care. For his part, Dr. Zabel obtained and served an expert medical report more than four years ago, which opines that he met the standard of care.
Relying on established jurisprudence, Justice Rees reiterated that expert evidence is required to prove that the defendant physician breached the standard of care and that the breach was causally connected with the plaintiff’s injury.
Moreover, Justice Rees highlighted the importance of expert evidence in support of the Plaintiff’s allegations that the Defendant failed to obtain her informed consent. The legal test requires that the Plaintiff prove, on a balance of probabilities, that:
The defendant physician failed to disclose a material risk or an indicated treatment alternative, and that this caused the plaintiff`s damages. Causation must be determined on both a subjective and objective basis: the plaintiff must show that the plaintiff would not have consented to the procedure, and that a reasonable person in the plaintiff’s circumstances would not have proceeded with the procedure even if adequately informed.
Justice Rees highlighted that in “informed consent cases, expert evidence is relevant to determining the material risks of a particular procedure, if the alternative treatment options were medically reasonable, and whether causation is established”.
Based on Justice Rees’ reasoning is it clear that a plaintiff will not discharge their burden of proof without supportive expert evidence.
The medical malpractice team at Bogoroch & Associates LLP is acutely aware of the critical role of expert evidence in medical malpractice litigation. Our litigation strategy is defined by legal principles in conjunction with expert evidence.
1 Abdul-Hussein v. Zabel, 2024 ONSC 4035 (CanLII) at paragraph 26.
2Abdul-Hussein v. Zabel, 2024 ONSC 4035 (CanLII) at paragraph 2.
3 Abdul-Hussein v. Zabel, 2024 ONSC 4035 (CanLII) at paragraph 25.
4 Abdul-Hussein v. Zabel, 2024 ONSC 4035 (CanLII) at paragraph 26 [emphasis added].
5 Abdul-Hussein v. Zabel, 2024 ONSC 4035 (CanLII) at paragraph 28.