Is a standard medical practice negligent in a medical malpractice case?

Ontario, Canada


The following excerpt is from Vescio v. Garfield, 2007 CanLII 24676 (ON SC):

The matter was revisited in ter Neuzen v. Korn (1995), 1995 CanLII 72 (SCC), 127 D.L.R. (4th) 577 in which Sopinka J. stated (at para 51) that: “[A]s a general rule, where a procedure involves difficult or uncertain questions of medical treatment or complex, scientific or highly technical matters that are beyond the ordinary experience and understanding of a judge or jury, it will not be open to find a standard medical practice negligent. On the other hand, as an exception to the general rule, if a standard practice fails to adopt obvious and reasonable precautions which are readily apparent to the ordinary finder of fact, then it is no excuse for a practitioner to claim that he or she was merely conforming to such a negligent common practice”.

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