This case is a poignant reminder that the court will, except in the clearest and rarest of cases, summarily dismiss a plaintiff’s medical malpractice claim if the plaintiff fails to tender expert medical evidence touching on the alleged negligence of the medical professional(s): more specifically, the need to tender an expert opinion on the applicable standard of care, whether it was breached, and if the breach was causative of the plaintiff’s alleged injuries/losses.
If a defendant medical professional or facility brings a summary judgment motion to dismiss the claim, they will succeed if no medical opinion evidence is tendered because it is “beyond dispute that there can be no genuine issue that would require a trial if a Plaintiff claiming medical negligence does not obtain expert opinions to support the allegations laid out in the statement of claim.”
The best advice for any plaintiff contemplating a medical malpractice lawsuit is to get a medical opinion first, and right out of the gates: even before a claim is started, ideally. The only time this may not be absolutely required is in those very rare instances where the negligence is so blatantly obvious on its face that no expert opinion is required: such as receiving surgery on the wrong body part.
But in the majority of the cases, which fall into a grey area, a medical opinion touching on the issues of negligence is a must. I submit that getting it early is a must. Armed with an early medical opinion that exonerates a medical professional or institution will save the plaintiff from the heartache and cost of starting a baseless or groundless claim. Conversely, if there is supportive medical opinion that the medical care fell below the standard of care and the conduct is causally related to the plaintiff’s injuries and damages, then the plaintiff can take some comfort in knowing that if they chose to continue with a claim, it will likely never be summarily dismissed, and there will always remain a reasonable hope that they can achieve some manner of redress in the event that the court accepts the position espoused by their expert after being subjected to careful, thorough, and rigorous scrutiny and challenge.
Comer v. Mount Sinai Hospital, 2022 ONSC 1321
https://www.canlii.org/en/on/onsc/doc/2022/2022onsc1321/2022onsc1321.html