Life saving surgeons and medical practitioners assist the court with informed opinions in medical malpractice cases. However, the government has imposed limits on the number of expert and expert reports permitted. Therefore after February 1, 2020 medical malpractice cases will have new challenges.
Many medical procedures are beyond the courts understanding. Educating the judge is critical in these often complex cases. However, a new rule will limit the ability of the patient and doctor to use independent opinions to prove or disprove negligence.
Already very difficult to prove, as of February 1, 2020 medical malpractice claims will be limited by Rule 11-8.
Rule 11-8: Expert Opinion Evidence on Damages for Personal Injury or Death
Here are some highlights of the new rule:
Limitation on expert opinion evidence
(3) Except as provided under this rule, a party in an action may tender, at trial, only the following as expert opinion evidence on the issue of damages arising from personal injury or death:
(a) expert opinion evidence of up to 3 experts;
(b) one report from each expert referred to in paragraph (a).
Additional experts and reports by consent
(4) If all the parties consent,
(a) the parties may tender expert opinion evidence of one or more additional joint experts, appointed in accordance with Rule 11-3, in excess of the limit set out in subrule (3) (a), or
(b) a party may tender as evidence one or more additional reports from an expert referred to in subrule (3) (a), in excess of the limit set out in subrule (3) (b).
Additional experts and reports by application
(5) On application by a party, the court may do any of the following if the court is satisfied that it would further the object of these Supreme Court Civil Rules:
(a) provide for expert opinion evidence of one or more additional experts, in excess of the limit set out in subrule (3) (a), by
(i) ordering the parties to appoint a joint expert in accordance with Rule 11-3, or
(ii) appointing an expert under Rule 11-5;
(b) allow the party to tender as evidence one or more additional reports from an expert referred to in subrule (3) (a), in excess of the limit set out in subrule (3) (b).
Allowable responding reports
(6) The limits set out in subrule (3) do not apply to an expert or expert’s report, if a party serves the expert’s report under Rule 11-6 (4) to respond to a report that was served on the party within 126 days before the scheduled trial date.
Allowable supplementary reports
(7) The limit set out in subrule (3) (b) does not apply to a supplementary report required under Rule 11-6 (5) or (6).
Limitation on disbursements for expert evidence
(8) In an action, only the following amounts may be allowed or awarded to a party as disbursements for expert opinion evidence on the issue of damages arising from personal injury or death:
(a) the amount incurred by the party for up to 3 expert reports, whether or not the reports were tendered at trial, provided that each report was (i) served in accordance with these Supreme Court Civil Rules, and (ii) prepared by a different expert;
(b) the amount incurred by the party for (i) a report allowed under subrule (4) or (5), (ii) a report referred to in subrule (6) or (7), or (iii) a report prepared by an expert appointed by the court under Rule 11-5 (1);
(c) the amount incurred by the party for an expert to give testimony at trial in relation to a report, referred to in paragraph (a) or (b), that was prepared by the expert
Appointment of experts on initiative of the court
(9) Nothing in this rule prevents the court from appointing an expert on its own initiative under Rule 11-5 (1).
When does the Expert Rule Apply to Medical Malpractice?
Rule 11-6(3) and Rule 11-6(8) do not apply to a lawsuit, other than a vehicle action, for which a notice of claim was filed before February 1, 2020. Specifically, the limits set out in subrule (3) do not apply to any report of an expert that was served before February 1, 2020. Aslo, the limits set out in subrule (8) do not apply to amounts that were necessarily or properly incurred for expert opinion evidence before February 1, 2020.
Check in for updates as the new rule 11-8 gets interpreted by the Court.