This is the seventh 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.
Introduction
Foreseeability and risk have long played prominent roles in all aspects of medical malpractice litigation. They influence (or can influence) the standard of care in an assessment of negligence, the extent of disclosure required to obtain proper informed consent, whether a reasonable person would accept a proposed procedure if properly informed, factual causation, and legal causation.
On February 10, 2026, the Supreme Court of Canada heard the Hemmings v Peng case,1 in which foreseeability of risk is the key issue. While awaiting the SCC decision, this article explores a few recent medical malpractice cases to show how these concepts have directed outcomes over the years.
Standard of Care Commensurate to the Risk
The law on standard of care in medical malpractice litigation is well established. A medical care provider must meet the standard of a reasonably competent medical care provider of his or her qualifications who possess a reasonable level of knowledge, competence and skill expected of professionals in Canada.2 The degree of risk to which the patient is subjected as well as the foreseeability of harm are intricately connected with this analysis. This is evident, for example, in how courts assess what medical knowledge defendants ought to have reasonably possessed at the time of the alleged act(s) of negligence. Specifically, courts determine whether the defendants’ care was appropriate based on the medical knowledge which was available to them at the time of the events – rather than at a later point when medical knowledge may have improved or evolved.3 Inherent in this analysis is an acknowledgement that what the medical care providers could foresee regarding adverse outcomes and harm for their patients dictates the appropriate response or approach to their patient’s clinical status.
Generally, following common and accepted practice within a profession will shield a medical care provider from liability.4 There are circumstances, however, where a 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. When this is the case, liability can be imposed, even when the practice is commonly employed by the profession at issue.5
The standard of care does not require perfection on the part of the medical care provider and an adverse outcome alone will not establish negligence.6 That said, the potential impact of a procedure on the patient will have an effect on the standard of care. As set out in Ediger v Johnston,
“The standard of care that a physician must provide will take into account all the factors affecting or potentially affecting the life and health of a patient. Thus, the degree of care required is commensurate with the potential danger to the patient. … In short, the greater the risk, the higher the standard of care.”7