Defences to a Medical Malpractice Claim – What to Expect

gloved doctor hand holding gavel

Establishing a Medical Malpractice Claim

A medical professional commits malpractice when they fail to meet the established standard of care within the profession. Medical malpractice claims are very difficult to prove, require a high level of technical expertise, are incredibly complex and nuanced, and vary widely in the issues at hand in the case. In order to build a medical malpractice claim, it is critical to establish that the medical professional failed to take proper medical care, either through their actions or inaction, and that resulted in harm and injury to their patient. Specific procedural rules and regulations regarding medical malpractice vary by province. Examples of medical malpractice claims include:

  • Birth injuries
  • Obstetrics & gynaecology malpractice
  • Pre-natal testing errors
  • Missed diagnosis
  • Delayed diagnosis
  • Failure to properly treat a condition
  • Failure to timely treat a condition
  • Surgical errors
  • Anesthesia errors
  • Hospital errors
  • Nursing errors
  • Laboratory errors
  • Failure to obtain informed consent
  • Prescription errors

If a patient or their family feels that their medical team has committed medical malpractice, they may seek out assistance from a lawyer. Once a qualified medical malpractice lawyer has conducted an investigation of the incident that occurred, they may file a lawsuit against the medical providers. A lawsuit is initiated when a Statement of Claim or Notice of Civil Claim (depending on the jurisdiction) is filed. It will include key elements like allegations of negligence, parties named in the lawsuit, descriptions of the injuries the patient sustained and the damages being sought, and material facts about the negligence committed by the medical providers named in the lawsuit.

Almost all physicians in Canada are members of the Canadian Medical Protective Association (CMPA). This is a non-profit organization that provides legal support and protection to its members by defending them in most medical-legal actions, including medical negligence claims. This entity is a powerful adversary and, with its huge financial resources, is able to help physicians present legal arguments designed to undermine a patient’s medical malpractice claim.

If a physician is sued for medical malpractice, the CMPA will begin mounting an aggressive defence. Their aim will be to discredit the plaintiff’s case. This may involve obtaining statements from experts who disagree with the plaintiff’s claims, attempting to undermine the claims during cross-examination, or by trying to prove that the case lacks merit because it fails to meet an essential element of a medical malpractice claim. In this blog, we’ll discuss some of the most common defences utilized in medical malpractice claims.

Most Common Defences to a Medical Malpractice Claim

Absence of Causation

In order for a plaintiff to successfully build their medical malpractice claim, they must establish the critical element of causation: the relationship of cause and effect between one event or action and the result. The defence may try to argue that causation can not be established because the injury or harm to the plaintiff was not caused by their client. They may try to prove that the patient’s injury was the result of someone or something else. They may even admit in this defence that they were negligent or made a mistake, but they’ll try to explain that their negligence was not the cause of the plaintiff’s injury. If they are able to prove that causation does not exist, that will defeat the plaintiff’s claim and the case will fail.


Part of the patient-medical provider relationship includes a responsibility on the part of the medical professional to protect their patient from risks that they should be aware of before providing treatment. When the defence uses a foreseeability defence in a medical malpractice claim, they state the injury or harm caused to the patient was not a reasonably foreseeable outcome or consequence. Essentially, the defence will argue that the medical provider could not have reasonably foreseen the risk of injury or harm.

The Medical Professional Used an Approved Practice

If a medical professional used a practice or procedure that was generally approved and utilized by other members of the profession at the time of the incident in question, the defence will  argue that they were not negligent. The practice or procedure must be deemed a recognized and accepted practice of the profession. The foundation of this defence is built upon the assumption that the medical profession, as a whole, adopts and embraces practices and procedures that are in the best interest of patients. If a physician uses an approved practice or procedure and that treatment results in harm or injury to the patient, the defence will  argue that they were not negligent and acted within the applicable standard of care. It is also important to note that the court’s assessment of the practice will be based on what the accepted protocols were at the time of the incident, not at the time of the trial. Therefore, if any medical advancements have been made in the time between the incident and the trial, those can not be considered.

This defence can fail, however, if an approved practice or procedure is deemed to have too many obvious risks that could easily be identified by a physician of reasonable skill and judgement in the defendant’s position. Additionally, if alternative treatments existed that posed less risk to the patient, the court may find a defendant liable even if they used an approved practice or procedure. The burden is placed on the defendant to prove that the practice or procedure they used was the profession’s approved practice at the time of the incident.

Two Different Schools of Thought Exist

Closely related to the approved practice defence is the “two different schools of thought exist” defence. This defence will attempt to introduce differing views and approaches used by doctors. It aims to provide another perspective and relies upon the court’s reluctance to select between sound, acceptable, and well-founded medical treatments and protocols. This defence isn’t simply the introduction of disputing expert testimony in contradiction to the plaintiff’s expert. In cases where the defence successfully uses the two competing schools of thought defence, they have established that the physician’s decision, whether through action or inaction, was one of the available acceptable approaches in the particular circumstances. Two different schools of thought may exist between different specialties. In other words, a cardiac specialist may approach an illness or injury in a different way than a pulmonary specialist. Both approaches  may be accepted within their respective specialties and the wider medical profession.

Along similar lines is another defence – the respectable minority principle. This principle allows for the use of newer or more radical forms of medical treatment. While the physician in these cases has opted for a form of treatment that falls outside of the options that are widely accepted, the defence may argue that the treatment they provided was still accepted by a respectable minority of medical professionals. As long as the doctor still advised the patient of the potential risks of the procedure or treatment, this defence may undermine the plaintiff’s claim.

The Injury Was the Result of a Recognized Risk

If a patient has an adverse outcome but was informed of the potential risk for that outcome, the defence will argue that the plaintiff’s injury was the result of a recognized risk that the patient was aware of. In these cases, the defence’s goal is to establish that the doctor, within their patient-physician duty, informed the patient of the potential risks of a procedure or form of treatment, that the patient provided informed consent after learning about the potential risks, and that the injury they sustained was one of the risks that had been explained to them.

Clinical Judgment

The Supreme Court of Canada has consistently held that physicians can not be liable for errors of clinical judgment. Essentially, poor or adverse outcomes do not equate to negligence, and medical professionals are not expected to practice without ever making a mistake. A key element the defence will attempt to establish is that their client made an error in judgment but was not careless or incompetent. They will argue that professionals of all kinds make mistakes and, as long as the doctor attempted to exercise thoughtful, intelligent judgement, they can not be held responsible for the plaintiff’s injuries. They will provide insight into the error and present information that explains that another reasonably competent professional in the same circumstances could have made the same error. In order for this defence to be successful, they will need to provide facts that include whether or not the doctor obtained all of the necessary information they needed in order to make an informed decision about the patient’s course of treatment. Available information can include test results, examination results, and past medical history. The defence will only be successful if they can establish that the physician considered all available information before proceeding with treating the patient. 

Contributory Negligence

Contributory negligence defences attempt to place the responsibility for a patient’s injuries on someone or something else. The defence may claim that faulty medical equipment or the patient themselves was the cause of the injury or harm rather than, or in addition to, the doctor’s negligence. When using this type of defence, they will try to establish that someone or something else caused or materially contributed to the injury or harm the patient sustained. The defence will try to demonstrate that someone else is to blame for the injury in question. The most common person the defence will try to place the responsibility on is the patient themselves. They will argue that the patient’s own negligence contributed to their injury.

The Injury Was Caused by a Pre-Existing Injury or Illness

In some instances, a patient’s injury results from both a pre-existing illness or injury and not a physician’s negligence. In those cases, the defence will attempt to establish that the patient’s injury was a direct result of the pre-existing condition or injury. As with many medical malpractice cases, this defence often requires a significant amount of expert opinion evidence. The experts for the defence may provide insight into the patient’s past medical history including any injuries, prior surgeries, or diagnosis they had received. They would then try to tie the patient’s past medical history to their current condition or injury.

The Complexities of Winning a Medical Malpractice Claim

For a plaintiff, winning a medical malpractice case is very difficult. The defence will attempt to undermine key allegations and facts laid out by the plaintiff. Even with a strong case, plaintiffs and their legal teams must contend against powerful defendants whose goal is to prove that they were not negligent. The defences explained above demonstrate some of the ways in which so few cases result in a decision in favour of the plaintiff. The CMPA’s own statistics show that less than 1% of all cases filed result in a judgment in the plaintiff’s favour. In every medical malpractice trial, a huge amount of evidence and testimony is presented to the court.

What to Do If You Believe You Have a Medical Malpractice Claim

The results of medical malpractice can be devastating and far-reaching. Medical malpractice can be an especially complex and confusing area of the law. If you think you have a medical malpractice claim, or just want to know more about your legal rights and responsibilities as a patient, you should consult with an experienced medical malpractice lawyer.

At Klein Lawyers, we understand that the complications and aftermath of medical malpractice may feel monumental and overwhelming. The damage you experienced has the power to change the course of your life. In many cases, medical negligence is preventable, which makes its reality all the more infuriating.

The Klein Lawyers Team Can Help

For more than 20 years, our team has been advocating on behalf of clients in a wide range of complex legal matters. Klein Lawyers is here to help you and your family recover the compensation you deserve for the losses caused by medical malpractice. Our law firm has extensive experience handling complex litigation, and we will draw upon our knowledge, resources, access to experts, and determination to build a claim for damages on your behalf. If you suspect that you or a family member suffered harm as a result of medical malpractice, we can help. 

Contact Klein Lawyers at (604) 874-7171 today for a free consultation with a Vancouver medical malpractice lawyer. We serve clients throughout British Columbia. There’s no obligation, and it’s completely confidential. We’re here to help victims of medical malpractice receive the justice they deserve.