Legal and regulatory proceedings

Navigating legal or regulatory processes

How do the Courts determine standard of care?

An article for physicians by physicians
Originally published May 2001 / Revised April 2008


The CMPA will seek expert opinion regarding a physician's standard of care.

Of interest to all physicians

A female patient was admitted to hospital complaining of severe right lower quadrant pain and nausea; she expressed her opinion that she might be suffering from appendicitis. Her treating physicians performed various tests and investigations over the next five days, finally discharging her with a prescription for antibiotics.

The patient had two hospital visits the following year for similar symptoms, with similar results. A year later, the patient was diagnosed with an acute appendicitis, which was treated surgically.

The patient brought an action against the two attending physicians, claiming they had negligently failed to diagnose and treat her acute appendicitis during her original hospital stay.

There are four elements that must be proven for any legal action based on a claim of physician negligence to be successful:

  • there must be a duty of care owed to the patient;
  • the physician must fail to meet the standard of care reasonably to be expected in the circumstances;
  • the patient must suffer harm;
  • the physician's shortcoming must be causally related to the harm.

The second element, standard of care, was at question in this case. In determining whether a physician has breached the standard of care, the Court considers the standard of professional care and skill that might reasonably have been provided by a colleague in similar circumstances. The appropriate measure is the level of reasonableness, not a standard of perfection. The Court determines that reasonable standard through the evidence of experts. Lawyers for both the patient/plaintiff and the defendant physicians may seek opinions from both medical and non-medical experts.

This action was dismissed because the plaintiff failed to establish that there was a breach of the standard of care. During the patient's original hospital stay, the attending physicians were found to have properly monitored her condition. The clinical judgment exercised in not removing the appendix at that time could not be faulted as there was no expert opinion calling it into question. The evidence also showed that the patient's appendix did not rupture at the time of the five-day visit. Even if the patient's assertion that she was suffering from chronic appendicitis had been true, it could not be shown that the physicians breached the standard of care.

The CMPA will vigorously defend a physician when there is good expert support for the care provided. When the standard of care is, however, clearly indefensible, the CMPA makes every effort to reach an appropriate settlement with the least possible delay.


DISCLAIMER: The information contained in this learning material is for general educational purposes only and is not intended to provide specific professional medical or legal advice, nor to constitute a "standard of care" for Canadian healthcare professionals. The use of CMPA learning resources is subject to the foregoing as well as the CMPA's Terms of Use.