SCC Clarifies That Adverse Inference Regarding Causation In Medical Negligence Actions Is In Discretion Of The Trial Judge

In the recent case of Benhaim v. St-Germain (2016 SCC 48), the Supreme Court of Canada clarified that in medical negligence cases in which the defendant's negligence is alleged to have undermined the plaintiff's ability to prove causation, and where the plaintiff adduces at least some evidence of causation, an adverse inference of causation may be drawn by the trial judge, but is not mandatory.

This sad case stemmed from the death of Marc Émond from lung cancer at the age of 47. After a November 2005 physical, Mr. Émond was sent by his physician to have a chest x-ray, which revealed an opacity in Mr. Émond's right lung. It was not until Mr. Émond's physical and x-ray in December 2006, revealing that the opacity had grown, that his physicians suspected the lesion in Mr. Émond's chest may be cancerous. Shortly thereafter, it was concluded that Mr. Émond had stage IV terminal lung cancer, despite a lack of symptoms. He passed away in June 2008.

Mr. Émond's partner, Cathie St-Germain, brought an action against the doctors claiming that they were negligent in failing to promptly...