Lack of expert evidence to support medical malpractice fatal to claim: court

The Supreme Court of Justice for Ontario has ruled that the lack of expert evidence in support of a medical malpractice claim was fatal to the claim and led the court to infer that there was no genuine issue requiring trial.

In Hurst v. Shabib, 2021 ONSC 8342, Leslie Hurst filed a medical malpractice claim against Dr. Gihad Shabib and Dr. Noor Amily at The Ottawa Hospital. Hurst alleged that she sustained damages from a surgical procedure performed by Shabib and Amily. At the case conference, Hurst was required to obtain an expert report, but she did not serve one. After presenting their expert evidence, the physicians filed a motion for summary judgment, as there was no genuine issue at trial.

The court granted the motion.

Despite having ample opportunity to do so, Hurst had not filed any expert evidence on the care she had received from the physician defendants or their failure to meet the required standard of care, said the court.

“In a medical negligence action, where a plaintiff has failed to obtain an admissible expert report, the court may draw the inference that the plaintiff was unable to obtain an expert report to support the allegations of negligence,” said the court, which made this inference due to the length of time granted to Hurst.

The court ruled that the absence of expert evidence in Hurst’s medical malpractice claim was fatal and the court inferred that her action had no hope for success.

Having found no genuine issues requiring trial, the court granted the motion for summary judgment and dismissed the action with costs.