Expert Evidence Needed When Moving to Dismiss Malpractice Claim

Unfortunately for health professionals in all disciplines and practice settings, a malpractice action can be commenced any time a patient or client suffers harm as a result of what the patient or their representatives perceive as a failure on the part of the professional. While cases are often brought following a bad outcome, a malpractice action will not succeed unless the plaintiff can establish that the health professional has breached the standard of care and that this breach caused the damage that the patient or client suffered. The plaintiff will almost always require expert evidence to prove that the professional’s conduct breached the applicable standard of care. Where a plaintiff fails to provide an expert report supporting his or her allegations of negligence, the defendant health professional can seek to have the claim dismissed through a motion for summary judgment, on the basis that there is no genuine issue requiring a trial.

Historically, there was a line of cases which provided that where a plaintiff fails to produce an expert report establishing that the defendant health professional breached the applicable standard of care, the defendant will succeed on a motion for summary judgment simply by arguing that there is no evidence in support of the plaintiff’s claim. However, a recent case of the Ontario Court of Appeal, Sanzone v. Schechter, 2016 ONCA 566 suggests that summary judgment will not necessarily be granted in these circumstances, particularly where the plaintiff is self-represented and the defendant fails to produce his or her own expert evidence.

Facts

In October 2011, the plaintiff commenced a malpractice lawsuit against two dentists (the defendants) regarding a dental surgery that was carried out in 2009. The plaintiff, who was self-represented for most of the proceeding, claimed that her ability to eat solid foods was critically diminished as a result of the defendants’ negligence in recommending the surgery that was performed.

Although the plaintiff had been ordered to set the matter down for trial by the end of 2014, she failed to do so. Approximately two months later, the defendants advised the plaintiff that they would be bringing a summary judgment motion to have the lawsuit dismissed if she failed to provide an expert’s report regarding the allegations of professional negligence.