Is an error in judgment not a professional fault but an honest error in an honest exercise of clinical judgment?

As indicated by L’Heureux-Dubé J. in Lapointe, there is an important distinction between an honest error and a professional fault. Where, in the face of competing theories or treatment options, there is an honest exercise of clinical judgment based on experience and training, an error in such exercise will not be an act of negligence. The court in Turkington v. Lai, [2007] O.J. No. 4418 (S.C.) explained the distinction: When a doctor is faced with different diagnostic and/or treatment options, the fact that the ultimate decision reached later proves injurious does not mean that the treatment was negligent. As long as a reasonable doctor similarly situated could reasonably arrive at that conclusion, the act is only an error of judgment.

In Crits, Shroeder J.A. quoted Denning L.J. in Roe v. Minister of Health et al.; Woolley v. Same, [1954] 2 Q.B. 66 at 83, [1954] 2 All E.R. 131 on the importance of maintaining this distinction: … [W]e should be doing a disservice to the community at large if we were to impose liability on hospitals and doctors for everything that happens to go wrong. Doctors would be led to think more of their own safety than of the good of their patients. Initiative would be stifled and confidence shaken. A proper sense of proportion requires us to have regard to the conditions in which hospitals and doctors have to work. We must insist on due care for the patient at every point, but we must not condemn as negligence that which is only a misadventure.