Ontario’s civil justice reforms are drawing criticism from plaintiff-side medical malpractice lawyers, who warn that proposed changes meant to simplify and expedite litigation could instead be disastrous. The latest issue of the Canadian Lawyer Magazine features Paul McGivern KC, who warns that oral examinations for discovery and limiting document disclosure could handicap patients seeking accountability in complex medical malpractice cases, while offering little efficiency.

This is the fourth article of our series discussing practical and evidentiary issues in medical malpractice. Each article will examine recent medical malpractice case law and focus on the practical and evidentiary issues within them. The goal is to provide some useful insight into the obstacles that occurred in hopes that future cases can adapt and develop new ways to overcome these challenges. In this article, Lindsay McGivern and Kate McInnes discuss the legal uncertainties that arise with the increasing use of AI tools in healthcare such as digital scribes for charting, and offer suggestions for how counsel can recognize and address potential AI-related evidentiary challenges.

This is the third article of our series discussing practical and evidentiary issues in medical malpractice. Each article will examine recent medical malpractice case law and focus on the practical and evidentiary issues within them. The goal is to provide some useful insight into the obstacles that occurred in hopes that future cases can adapt and develop new ways to overcome these challenges. In this article, Jessica Kim discusses the challenges of surgical negligence cases and the Ontario case, Szeto v. Kives 2024 ONSC 7258, in which surgical photo evidence was skillfully utilized to overcome the evidentiary gaps of an operative report written by the defendant and undermine opposing expert opinion.

This is the second article of our series discussing practical and evidentiary issues in medical malpractice. Each article will examine recent medical malpractice case law and focus on practical and evidentiary issues, with the goal of providing some useful insight into the obstacles that occurred in hopes that future cases can adapt and develop new ways to overcome these challenges. In this article, Andrea Donaldson reviews cases in which generalists have been held to higher standards than their formal training would suggest, and offers suggestions for counsel to illustrate the required standard of care to the court.

This is the first article of our series discussing practical and evidentiary issues in medical malpractice. Each article will examine recent medical malpractice cases and focus on the practical and evidentiary issues within them, with the goal of providing useful insight into the obstacles that occurred in hopes that future cases can adapt and develop new ways to overcome these challenges. In this article, Lindsay McGivern analyzes the recent case of A.G. (litigation guardian of) v. Rivera, 2024 BCSC 242 and the difficulty the plaintiff faced in proving her claim in the face of contemporaneous medical records that were in conflict with her version of events.

This is the final installment of our series aimed at providing a detailed examination of the challenges and pitfalls in different areas of medical negligence lawsuits, and approaches to overcoming them. Each article has focused on specific injuries and highlighted the obstacles a plaintiff faces in bringing their case to a successful conclusion. Our next series, which will debut in the Winter 2024 edition of The Verdict, will focus on practical and evidentiary issues in medical malpractice.

This article concludes our current series by considering one of the most critical and costly aspects of any medical malpractice lawsuit: the client’s care plan. It will proceed by describing the principles of autonomy, choice, and independence that underpin all cost of future care analyses, as repeatedly reiterated by the Supreme Court of Canada; flagging proposals for care that are commonly found in defence submissions and the case law, which contravene these principles; and providing specific advice on how to develop and present a care plan successfully in mediation and at trial.