As discussed in previous articles, medical malpractice claims are legally complex and inherently risky due to the expert evidence required to prove negligence against  doctor.

The first essential component to a successful medical malpractice claim is proving that the doctor owed a duty to care to his or her patient.

Once it has been proven that the patient was owed a duty of care by the doctor, the next essential component to a successful medical malpractice claim is proving that the doctor breached the applicable standard of care.

As established by the Supreme Court of Canada in Sylvester v. Crits et al [1956] SCR 991, the standard of care of a doctor is based on the concept of reasonableness.  Doctors must have a reasonable degree of skill and knowledge and they must exercise a reasonable degree of care.  What is considered a “reasonable” degree of care and skill is based on what is reasonably expected of a normal, prudent doctor of the same expertise and standing.  Therefore, if the doctor is a specialist, a higher degree of care is expected as compared to a doctor who is not a specialist and who does not have the special training or ability.

If a trial judge finds that the doctor performed a medical procedure in accordance with the standard recognized medical practice, the medical malpractice claim will fail and it will be dismissed.

If a trial judge finds that the doctor did not perform the medical procedure in accordance with the standard recognized medical practice, then he or she will be found to have breached the standard of care.

There are a number of defences available to doctors who have been accused of breaching the standard of care.  One defence is that of clinical judgment which is also often referred to as an “error in judgment”.  An error in judgment is considered different and distinct from an act of unskillfulness or carelessness that would be considered negligence.  An honest and intelligent exercise of judgment has long been recognized as satisfying the standard of care.  An error of judgment may be evidence of negligence, however, if it can be proven that this error in judgment fell below the standard expected of a reasonably competent doctor and that the error in judgment caused the injury.  This is in keeping with the general principle that doctors are not held to a standard of perfection.

In many cases, whether a doctor is successful in proving the defence of clinical judgment will depend on whether he or she had obtained all the necessary information and resources before exercising his or her judgment.  If a doctor makes an error in this regard which resulted in an injury to the patient, the question then is whether another reasonably competent doctor, possessing the same information and working under the same circumstances, have arrived at the same conclusion or made the similar error.  If the doctor can prove that he or she made an honest and intelligent exercise of judgment, an error in judgment in and of itself is not negligence.  What would be considered negligence  is where the error in judgment is considered “an act of unskillfulness or carelessness or due to lack of knowledge.”

In Legal Liability of Doctors and Hospitals in Canada, the authors provide insight and guidance from Canada’s leading authorities on medical malpractice law.  In relation to the defence of clinical judgment / error in judgment, the authors provide the following useful summary of the current state of the law:


A doctor is not liable for an honest error of judgment provided he acts after a careful examination in what he believes to be the patient’s best interest.  A doctor can give no guarantee of  success, nor insure a cure, so a diagnosis may be  inaccurate or treatment may be improper and an injured patient may go uncompensated.  Negligence cannot be assumed simply on the basis of the consequences of medical treatment to a patient.   The conduct of a doctor is not to be measured by the result, for the practice of medicine is an art as well as a science; a great deal of medical treatment depends on the exercise of judgment.  But it is not enough for the doctor to show that he exercised his judgment.  He must prove that in doing so he met the standard of care required of him.  Error of judgment is a defence in which the doctor admits he made an error, but denies that he is negligent because he possessed and exercised the skill, knowledge and judgment of the average of his special group when  considering the patient’s case.

The lawyers at Holness and Small Law Group have been representing injured claimants with their medical malpractice claims for over 20 years.  Contact us for a free initial consultation to learn more about your medical malpractice claim and your legal rights.