The coroner and the College of Physicians and Surgeons (CPSO) say that mistakes were made, and surprisingly the hospital and doctor admit it!  But then, their lawyers from the CMPA say it’s not negligence, and they don’t owe you anything?! Huh?  Maybe.

I can’t tell you how many injured people and families I meet with that find themselves in this difficult circumstance.  It is incredibly frustrating to know and to feel with all your heart that a doctor or nurse failed to do the things they should have done, only to find out that this is only half the battle, and doesn’t even get you close to winning a case.

To a person on the street, if a doctor makes a mistake, then that is negligence. Period. Worst doctor ever.

But not in law. 

In law, a mistake is only negligence if it was an unreasonable mistake (doctors aren’t expected to be perfect) and if the mistake causes a loss that a court can compensate you for.  If the mistake didn’t cause anything bad to happen, then it’s not negligence, and if the bad thing would have happened anyway without the mistake, then it’s not negligence.

Nothing is more confusing in law than the issue of causation.

The basic law of causation is that a Plaintiff has the burden of proving in fact that the Defendant’s breach caused or contributed to the Plaintiff’s losses.  This basic test that applies to all negligence is the “but for” standard, and it must be proven by the Plaintiff, on a balance of probabilities – 51% or better, or said in another way, more likely than not.   This has been the law of Canada for decades and was reaffirmed as the default test by the Supreme Court of Canada in 2007 in Hanke v Resurfice.

In Hanke, however, the court also clarified the limited circumstances where the “material contribution” test delineated in Athey v Leonati in 1996 apply.  The Court has said that the material contribution test for causation is not in fact a causation test at all and is really just a public policy that applies only in the most exceptional circumstances.  The material contribution test will be available only when:

1. It is impossible for the Plaintiff to prove causation using the “but for” test; and
2. It is proven that the Defendants conduct brought the plaintiff within the ambit of a known risk.

It is important to note that “impossible to prove with but for” does not mean “difficult” or “just couldn’t do it” – it means impossible.  The classic case is where two people simultaneously fire guns and a person is hit with one bullet, and the evidence cannot prove which person fired the offending bullet.  It is clear that both people caused risk, and it would offend public policy if the Plaintiff were to lose the case. Another helpful overview of the law of causation and material contribution was done by the Supreme Court more recently in Clements v Clements in 2012.

Another interesting issue is what if you lack the factual evidence to prove negligence on the but-for test, but the material contribution test doesn’t apply?  What if for example, an ER physician should have done a CT scan of a patient but didn’t, and then the patient dies?  What if the defence and CMPA then argue that you can’t prove that the patient’s condition was in such a state that intervention would have saved their life?  What if you realize that they’re right and that without the CT scan that you can’t prove the condition was amenable to life-saving treatment? 

There are two helpful cases from the Ontario Court of Appeal which state that where a Defendant’s breach prevents a Plaintiff from being able to prove causation, that the lack of that factual information is not a basis for the Defendant to evade liability.  As an example, if without the CT scan the Plaintiff cannot prove their case, but the only reason there isn’t a CT scan is because the Defendant failed to take one and the court finds that a CT scan should in fact have been done, then the Defendant will not be able to rely upon this to beat the case. 

See Goodwin v Olupona and Ghiassi v Singh

If you’re confused, you’re not alone. There is a reason so many of these cases go to the Supreme Court and Court of Appeal – even lawyers and judges, find these issues very challenging.