The lawsuit involved the treatment provided by a gynecologist and obstetrician
The NS Supreme Court has dismissed a medical negligence claim due to the plaintiff's failure to present expert evidence to support her claim.
In Thorburn v. Grimshaw, 2024 NSSC 15, Daphne Thorburn pursued a case against Dr. Robert Grimshaw, alleging medical negligence and a failure to obtain informed consent. Dr. Grimshaw sought dismissal of both claims.
The core of the lawsuit revolved around the medical treatment provided by Dr. Grimshaw, a qualified gynecologist and obstetrician. The plaintiff underwent surgery at the Victoria General Hospital in Halifax, Nova Scotia, after consulting Dr. Grimshaw about a mass on her right ovary.
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Post-surgery, complications arose, leading to the plaintiff being returned to the operating room to address internal bleeding. Dissatisfied with the outcome of the surgery, Thorburn claimed negligence and lack of informed consent, asserting that Dr. Grimshaw failed to uphold the standard of care, supervise resident doctors, disclose their involvement, maintain her health, and adequately inform her of the surgical procedures, associated risks, and available options.
The NS Supreme Court ultimately ruled to grant summary judgment on the evidence. The court found that Thorburn failed to produce expert evidence supporting her claims of Dr. Grimshaw's breach of standard care or causation of her alleged injuries. The court reaffirmed the necessity of expert opinion in medical negligence cases, referencing established jurisprudence.
The court explained that the trier of fact must determine the required standard of care to measure the defendants' acts. The court then pointed out that medical negligence cases typically cannot be established without an expert opinion supporting the plaintiff's position.
The NS Supreme Court said that "in the absence of supporting expert opinion put forward by the plaintiff on a summary judgment motion, a genuine issue has not been raised with respect to a material fact and summary judgment should be granted."
The court also scrutinized the plaintiff's assertion that Dr. Grimshaw failed to obtain informed consent, which, according to the plaintiff, constituted an "assault." However, the court clarified that lack of informed consent does not constitute an assault in tort. It may constitute either battery or negligence. The court then differentiated between actions in battery and negligence, emphasizing that a lack of informed consent typically falls under the negligence category.
Thorburn's claims centred on the failure to inform her of alternative options, the participation of medical residents, and the risk of severe internal bleeding. The court held that these allegations did not pertain to the material risks of surgery and required expert evidence to establish their significance. Thorburn's failure to present such evidence ultimately led to dismissing her claims on informed consent.
Ultimately, the court ruled that Thorburn's negligence case had no chance of success at trial. Accordingly, the court dismissed the plaintiff's action against Dr. Grimshaw.