Amendments To Professional Negligence Claim Denied Following Tardy Expert Report

• Published date: 22 November 2022
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Professional Negligence, Civil Law
• Law Firm: Gardiner Roberts LLP
• Author: Mr James R.G. Cook

Pleadings frame an action and determine the evidence that will be called at trial. The rules of pleadings generally require that a concise statement of the material facts be provided but not the evidence. In a professional negligence action, the statement of claim cannot simply plead that a defendant was negligent over a period of time. The pleading must identify how a defendant fell below the standard of care and how damage was caused as a result.

In many cases of professional negligence, an expert opinion will be required to address and identify breaches of the applicable standard of care. In some cases, the breaches that are identified by an expert opinion may not have been addressed in the statement of claim that was prepared at an earlier stage of the action. While pleadings may be amended, plaintiffs should not expect that they will be allowed to amend a claim after several years of litigation to raise new grounds of negligence that could have been pleaded earlier.

Such a situation was addressed by the Ontario Superior Court of Justice in a dental malpractice action against an oral surgeon: McFadden v. Psutka, 2022 ONSC 6239 (CanLII).

The action was commenced by the plaintiff in January 2017 against two hospitals, two radiologists, and four oral surgeons. The plaintiff was treated by one oral surgeon in the 1980s. She was treated by a second oral surgeon for several years thereafter, who performed surgeries in 2013-2015. Despite these surgeries, the plaintiff continued to complain of pain. The plaintiff sued the defendants for negligence in the treatment and surgery provided.

In August 2019, a case management judge implemented a timetable for the action. Documents had not yet been exchanged and examinations for discovery had not taken place. The plaintiff did not have any expert opinions on the standard of care, causation or damages.

All defendants were subsequently released from the action except the second surgeon. The case management judge directed the plaintiff to confirm the timeframe of treatment by the surgeon that formed the basis of the negligence claims against him.

In October 2021, plaintiff's counsel advised in writing that the allegations of negligence advanced against the surgeon related to his treatment from 2012 onward. He confirmed that the plaintiff would not advance a cause of action against the surgeon for failing to properly monitor her condition in the 1990s.

In November 2021, the case management judge approved a Fresh as...