As a result of these changes in scopes of practice and the increase in team-based approaches to health care, the courts have had to examine the role of policies, procedures, and protocols along with the importance of communication in the context of the negligence of a member or members of the health care team.
These evolving roles may even call into question the precedential value of older decisions. A seasoned health care professional who is willing to act as an expert can be the key to understanding these important issues.
Expert Opinions – An Essential Component of Your Case
Solid expert opinions are the cornerstone of medical negligence cases and retaining the right experts is essential to winning your case. Not all physicians who provide expert opinions for personal injury cases are willing to assist on medical negligence cases where their colleagues may be defendants. The expert in a medical negligence case needs to be able to convey complex medical and scientific information to the trier of fact, both in writing and on the stand, in a way that can be understood by a layperson. Physicians who engage in teaching residents are often particularly good
at describing and explaining medical issues. Preparing to discuss the case with your expert provides you with an opportunity to read the medical literature, textbooks and relevant policy statements so that you can understand the medicine well enough to evaluate your own expert’s opinion. This is a vital step in the early stages of your investigations as you need to assess if your expert’s opinion will withstand the scrutiny of an expertly run cross-examination. Many physicians are willing to provide expert opinions for the causation claims in a medical negligence case. Causation issues are less likely to require the expert to write a report directly critical of a colleague. The challenge in finding a causation expert is often in finding the right expert. Sometimes the necessary opinions are from physicians who are highly specialized, and it is not uncommon to have to go outside of the province or the country to find a suitably qualified expert with a supportive opinion. Connecting the dots from the breach of the standard of care to causation can be the most exciting part of working up your case. The right expert can make sure you understand the medical issues and evidence which will help you in your cross examination of the defendant and hopefully, obtain the admissions you need to prove your case. This exchange of knowledge is not a one-way street, and you will have to instruct the physician about their role in a lawsuit. They not only need to understand that their role is to assist the court rather than advocate for your client, but they may also need to adjust their general approach in their review of the case. Physicians trained in the scientific method will be accustomed to thinking about scientific certainty and may tell you that they can’t be certain what caused your client’s injuries. Of course, certainty is not the test the court relies on. The test requires the physician to opine on what likely happened on a balance of probabilities. Once your expert gets comfortable with that concept, they will be better positioned to assist you to advance your case and the court to understand your case.
Finding a health care professional willing to provide a standard of care opinion that is critical of the care provided by one of their colleagues can be more challenging. Here you often need to match not only the profession of the defendant but usually also their specialty. You may need a physician, nurse, midwife, pharmacist, physiotherapist or any of the other twenty-six regulated health care professions in BC to act as your expert. If a potential defendant practices in a highly specialized area of health care with a small number of colleagues in the province or the country, others in their field may be reluctant to opine on their conduct. Health care professionals who are prepared to opine on the standard of care do so for a variety of reasons. Some welcome the learning opportunity and note that sometimes their own practice improves because of reviewing charts where there has been a bad outcome. Others view this work as upholding the standards of the profession, echoing in some ways the mission of the Canadian Medical Protection Association (CMPA) which is to protect the professional integrity of physicians and promote safe medical care in Canada. Case law can be a useful source for finding experts – a health care professional who has acted as an expert in the past may be willing to do so again. Reviewing the medical literature can help you identify who is publishing articles relevant to your case. Those authors are sometimes willing to act as experts or may be able to recommend others who might be able to assist.
