No Expert Report, No Genuine Issue Requiring a Trial: Expert Reports Needed in Medical Malpractice Actions
In Chapin v. Baboolal et al, 2025 ONSC 5217, Justice R.A. Lepere agreed to grant a summary judgment motion brought by the defendants because the plaintiffs failed to provide an expert report to support their action, so there was no genuine issue requiring a trial. The decision reinforces the notion that plaintiffs will almost always require expert reports to support allegations of medical malpractice.
Background
The plaintiffs commenced a medical malpractice action arising out of the care and treatment received by their son and brother, which they alleged was negligent.
The statement of claim was issued on December 15, 2011. The Plaintiffs originally had a lawyer but filed a notice of intention to act in person in March 2012. Statements of Defence were delivered in May 2012. All affidavits of documents were delivered by the end of 2014, and the examinations for discovery took place in January 2015.
On November 24, 2015, the action was administratively dismissed for delay as the action had not been set down for trial.
In the summer of 2016, the Plaintiffs retained a new lawyer. The action was reinstated on January 7, 2016, further to a motion brought by the plaintiffs.
On October 3, 2017, a further timetable was agreed to by the parties requiring all expert reports to be served by May 31, 2018 and that the action be set down for trial by July 31, 2018.
In May 2018, the Plaintiffs were once again self-represented. A trial record was delivered by the July 31, 2018 deadline.
The parties attended two pre-trial conferences in February and March 2019. At these attendances, the Plaintiffs advised the court they were in the process of having their expert report(s) finalized.
The parties attended three further pre-trial conferences/case conferences to ready the matter for trial in the fall of 2023. At these conferences orders were made on consent discontinuing the claim against some of the Defendants. At the November 28, 2023 conference, the plaintiffs recognized the need for more expansive expert opinions regarding certain doctors, including Dr. Jagger and Dr. Nigro.
The Positions of the Parties
The defendants brought a motion for summary judgment. The defendants noted that the plaintiffs needed expert reports to support the complex allegations of negligence.
In contrast, the plaintiffs maintained that the defendants’ negligence was so clear that no expert evidence was needed. Instead, the plaintiffs sought to rely on medical literature and cross-examination of the defendants and their expert witnesses to prove their case.
The Applicable Test
Rule 20.01(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, permits a defendant to move for summary judgment after delivering a statement of defence.
A Court will grant summary judgment if “the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence”. The overriding consideration on a motion for summary judgment is whether the “judge is able to reach a fair and just determination on the merits”: see Hyrniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 49.
The responding party may not rest solely on the allegations or denials in the party’s pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial.” Each party must put its best foot forward. The Court is entitled to assume that no additional evidence would be put forward by either party if the matter had proceeded to trial: see Hurst v. Shabib, 2021 ONSC 8342, at para. 23.
Analysis
In the context of a medical malpractice action, the Court emphasized that there will generally be no genuine issue requiring a trial if the plaintiffs do not obtain expert opinions in support of their claim. That expert evidence must establish:
- the standard of care;
- that there was a breach of the standard of care; and
- that the breach caused the plaintiff’s injuries or damages. If this evidence is not presented, summary judgment may be granted dismissing the plaintiff’s action: see Ayubi v. Mount Sinai Hospital, 2023 ONSC 968, at para. 100.
The reason for this requirement was stated by the Ontario Court of Appeal in Liu v. Wong, 2016 ONCA 366, at para. 14 as follows:
Medical malpractice cases are complex – even where they may appear simple to the eye of a layperson – and judges and juries lack the expertise necessary to assess difficult questions such as causation, standard of care, and breach of the standard of care, without the assistance of expert reports. For that reason, this Court and others have stated that aside from “the clearest of cases” the absence of an expert in support of the plaintiff’s medical malpractice claim is fatal: see Larman v. Mount Sinai Hospital, 2014 ONCA 923.
The Court added that a failure of a plaintiff to obtain an expert report permits and invites the court to infer that the plaintiff was unable to obtain an expert report to support the allegations of negligence: see Richmond v. Balakrishnan et al, 2010 ONSC 5888, at paras. 22-23.
Disposition
The Court granted the summary judgment motion of the defendants. The Court held that it needed evidence on the relevant standard of care, as well as any breach of the relevant standard of care, and the Court determined that the plaintiff could not simply rely on the medical literature to prove their case.
Although Justice R.A. Lepere wrote that he was sympathetic to the plaintiffs’ case and their loss, the Court highlighted that the plaintiffs had been advised on at least three occasions that they needed expert evidence to prove their claims. As such, the Court was able to infer that the plaintiffs were unable to put forth an expert opinion to support their allegations of negligence.
Accordingly, the Court dismissed the plaintiffs’ claims against the defendants.
Takeway
For plaintiffs the takeaway is clear: in the vast majority of medical malpractice cases, which are often complex and dependant on the medical literature, there will need to be at least one expert report to address the standard of care, any alleged breach of the standard of care, and causation.
For defendants, if a plaintiff does not rely on an expert report to establish negligence in a medical malpractice case, it is possible to succeed on a summary judgment motion because there is no genuine issue for trial, and the Court can be invited to draw an inference that the plaintiff(s) could not obtain a supportive expert report.