What is the test for a medical negligence action?
Alberta, Canada
The following excerpt is from Borchers v. Kulak, 2009 ABQB 457 (CanLII):
They submit, citing Tailleur v. Grande Prairie Hospital, 1999 ABCA 2, 228 A.R. 274 (C,A.) at para. 15, that to succeed in a medical negligence action, a plaintiff must prove on a balance of probabilities that: (a) The defendant owed a duty of care to the plaintiff; (b) The defendant breached the requisite standard of care; (c) The plaintiff has suffered an injury or loss; and (d) The defendant’s conduct was the actual and legal cause of the plaintiff’s injury or loss.
Further the failure to prove even one of these elements means that a plaintiff’s action must fail. Fournier v. Wiens, 2004 ABQB 430, 368 A.R. 306 at para. 76.
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