Defences to a Medical Malpractice Claim

In this article PCS Law, professional discipline lawyers will share some of the defence strategies to fight a medical malpractice claim.

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October 13, 2022 02:00 PM

Medical malpractice claims can be complicated and often require specialized legal counsel and expertise in understanding medical care standards. Whilst doctors should be held accountable for actually causing harm due to negligence, not all poor outcomes of medical care are automatically grounds for a medical malpractice claim. In this article PCS Law, professional discipline lawyers will share some of the defence strategies to fight a medical malpractice claim.

Establishing Grounds for a Medical Malpractice Claim

Medical malpractice occurs when a health care professional breaches the standard of care that is expected of them. They are also supposed to follow appropriate protocols and treatments. If they do not do this, they may be found liable for any damages that come about as a result.

There are a number of factors that are considered before a situation can be dubbed medical malpractice, such as:

Not Meeting the Proper Standard of Care

Health care professionals in Ontario are governed under the Regulated Health Professions Act, 1991 (RHPA) and health profession Acts (i.e., Medicine Act, 1991). This legislative framework establishes health regulatory colleges, which regulate the professions in the public interest. Violating those standards could potentially result in an accusation of negligence.

When Negligence Causes Injury

A patient may be able to file a claim for medical malpractice if there is evidence of injury or harm. The patient must prove that the physician's action or inaction was negligent and resulted in actual harm or injury, and that the negligent action would not have happened if proper care had been provided. Without proof, there is no claim.

The Injury Has Damaging Consequences

In order to get compensation for medical negligence, a patient must prove that they suffered considerable damage as a result of the medical negligence. The following may be deemed considerable damage:

  • Suffering
  • Experiencing difficulty
  • Ongoing pain and discomfort
  • Significant income loss
  • Disabilities

Although patients may be dissatisfied with the outcome of their treatment, it does not necessarily imply malpractice. Malpractice is only considered when negligence is proven to cause injury and harm.

A few examples of malpractice claims are:

  • Hospital errors
  • Nursing errors
  • Laboratory mistakes
  • Misdiagnosis
  • Delayed diagnosis
  • No informed consent was obtained
  • Wrong dosage or prescription
  • Birth injuries
  • Obstetrics and gynecology missteps
  • Discrepancies in prenatal testing
  • Poor treatment of a condition
  • Not treating a condition in a timely manner
  • Unnecessary or incorrect surgery
  • Surgical error
  • Complications from anesthesia

Common Defences to a Medical Malpractice Claim

There are several defence tactics and strategies that can be used in response to a malpractice claim. Below is a list of the most common defenses:

Absence of Causation

Causation is a relationship between cause and effect where one thing is affected by the other. It is a critical factor in deciding whether a plaintiff has grounds to sue. Causation fundamentally implies that there must be proof that the defendant's carelessness caused the plaintiff's injuries.

The defendant may argue that causation cannot be established if they did not cause harm or injury by proving that someone or something else did. Even if a mistake was committed, if they can show that it was not the error that caused the damage or harm, the case is done. In general, the defence will seek to demonstrate that there is no cause and effect in order to invalidate the plaintiff's claim.


Before administering treatment, medical practitioners must safeguard patients against risks that they can see or are aware of. Put another way, it is their responsibility to safeguard against foreseeable risks.

As part of a foreseeability defence in a medical malpractice action, the defendant may argue that the patient's damage or harm was not a reasonably foreseeable event or consequence and that the treating physician had no way of knowing that such an injury or harm may occur. For example, it could be claimed that an injury caused by the medical treatment is a result of such a rare side effect that it could not have been predicted.

Approved Practice Was Used

A medical professional will not be considered negligent, according to the defence, if they followed a practice or technique that is considered to be a known and accepted practice in their field. The premise of this defence is that the medical community as a whole develops and adheres to methods and procedures that are in the patients' best interests. The court will evaluate the practice based on acknowledged protocols at the time of the occurrence, not the trial. Any medical advances between the incident and the trial are not considered.

The Injury Was the Result of a Recognized Risk

If a patient suffers an adverse outcome but was advised of the risk, the defence will claim that the plaintiff's damage was a recognized risk that the patient was aware of. The defense's objective in these situations is to prove that the doctor provided the patient with all the necessary explanations. It implies that the patient knowingly consented to take on the potential risks associated with the treatment.

Contributory Negligence

Contributory negligence defenses investigate other considerations that may have endangered the patient, such as a third party or event. In some circumstances, the patient's refusal to comply with medical instructions, or faulty medical equipment is responsible for the injury. In this case, the defense will attempt to prove that something or someone else is responsible for the injury in question and will argue that these actions contributed to the damage.

A Pre-Existing Injury or Illness Caused the Injury

There are cases when a patient's injury can be attributed to both a pre-existing condition or prior injury, rather than to a doctor's negligence. If so, the defence will aim to prove that the patient's harm was caused directly by that pre-existing illness or injury.

The defence will try to draw a link between the patient's prior medical experiences and the harm or illness they are currently dealing with. To shed light on the patient's past medical history, including any injuries, prior procedures, or diagnoses received, a sizable amount of expert opinion will be gathered. It will also be used as evidence.

What to Do if You Have a Medical Malpractice Claim

A medical malpractice claim can have serious ramifications, and any medical practitioner facing one would be well-advised to seek a seasoned medical malpractice lawyer. How can a lawyer help:

  • Investigate the circumstances and then devise a court strategy for defense
  • Identify other parties who can also be held responsible for the outcome of the case
  • Provide counsel on what compensation might be available through a settlement or trial outcome
  • Give advice on whether there are alternative options for resolving the case outside of civil court, such as arbitration or mediation


Medical negligence allegations are grave and can jeopardize a practitioner's career. If you have been accused of negligence, you must safeguard your reputation and career by consulting the right legal professionals. This article has covered some of the most common defenses available to medical professionals who are accused of medical negligence, as well as the best way to respond. Its objective is to provide guidance, but legal assistance is strongly advised.

At the end of the day, no physician wants to cause harm to their patient. Following best practices and adhering to a standard of care should generally shield you from medical malpractice lawsuits.

At PCS Law, we are aware that medical malpractice has major repercussions and can have life-altering consequences. Your livelihood depends on it. If you are under investigation or have received a complaint, our skilled lawyers can offer you strategic and practical counsel. For more information visit

Headline Image: iStock/ gorodenkoff

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