The plaintiff contended that the trial judge erred by not applying the standard of care expected of an orthopedic surgeon with a subspecialty in trauma, and asserted that the defendant had extensive experience and was very confident in his abilities in performing the surgery in question. She referred to several cases that have found that extensive experience can result in a higher standard of care, and that holding oneself out as a specialist can demand a higher degree of skill. The plaintiff referred to the case of Wilson v. Byrne for the proposition that “when a general practitioner holds himself out as a specialist, that is, by undertaking work that is normally done by a specialist, he too will be expected to practice at the standard of a specialist.” 5
Reviewing the defendant’s experience and background, the Court of Appeal noted that his training was as a general surgeon, which included orthopedics; and prior to moving to Canada he had taken surgical specialty in India which involved orthopedics, including ankle. Prior to the events in question, he had completed some courses in orthopedics, and testified that at least 50% of his practice was orthopedics. The evidence also demonstrated that he performed approximately the same number of orthopedic surgeries annually as the average orthopedic surgeon. The Court of Appeal found that “despite Dr. Jacob’s lack of formal education and training, he had very extensive experience in orthopedics, including calcaneal fracture surgery.”6
With respect to the use of the terms “rural” and “community-based,” the plaintiff argued that these incorrectly injected into the standard of care the concept that the defendant should be measured by a lower standard than that expected of a similarly qualified physician who happened to be practicing in a large urban setting. The Court of Appeal noted that the particular location where a physician practices was once considered relevant to the standard of care, referred to as the “locality rule.” However, the thinking on the locality rule has evolved and the “academic authority indicates that, in the absence of deficient facilities, resources or support staff, geographic location, in and of itself, should not automatically lower the standard of care.”7
