Canada: Key Difference Between Error Of Judgment And Negligence In Medical Malpractice Law

Last Updated: February 22 2019
Article by Jeremy M. Syrtash

You're under the care of a medical professional, they've seriously misjudged the situation, and you've experienced a serious injury or loss as a result. Is this a textbook case of medical malpractice? Should you be able to be compensated for your injuries?

If you ever find yourself in this situation you'd obviously hope that the answer to these questions is "yes." Unfortunately, the more likely answers are "maybe," "not necessarily," and "well, it depends."

In this blog post I explain why a medical professional's alleged negligent actions are not always necessarily considered medical malpractice under the law. While an adverse medical outcome may be the result of negligence, it is not always negligent. Rather, medical malpractice can only be said to occur when an error is shown to have breached the standard of care and the cause of your injuries.

What Is The Standard of Care?

In the medical field, the standard of care is the level of treatment a reasonably competent health care practitioner would be expected to provide any other patient facing similar circumstances. If that sounds very general and vague, it's because it is. Many factors come into play when the legal system is asked to decide if the standard of care has been breached in a given case.

When determining the appropriate standard of care, the type of medical service being provided; the specialization, training and experience of the practitioner providing care; and, even the location where the treatment is taking place, may be considered.

Error of Judgment or Negligence?

Within each field of medicine there are general rules and guidelines to follow as care is administered to a patient. Although these guidelines are designed to provide a relatively uniform level of care and treatment based on current research and best practices, trained medical professionals must often rely on their own judgment when deciding both the type of treatment to administer and when to administer it.

Many unique factors present may be weighed by the practitioner as he or she considers the appropriate course of action. If the medical practitioner ultimately errs in deciding when and how to act and the patient suffers serious harm as a result, the question becomes: would another reasonably competent practitioner, possessing the same information and working under the same circumstances, have come to the same conclusion or made a similar error?

For example, the availability of a patient's medical history, the details in such a history, inconclusive test results, and matters of urgency (the time available to make a decision) may all come into play when a court of law is asked to determine if a medical professional's actions, or lack of action, would have been made by another reasonably competent practitioner presented with the same circumstances.

It would be unfair to hold doctors and other medical practitioners to the standard of perfection. Rather, they are "bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same experience and standing..." If a practitioner presents himself or herself as a specialist, "a higher degree of skill is required of [them] than of one who does not profess to be so qualified by special training and ability."

Provided that they satisfy their professional obligation to provide an honest and intelligent exercise of judgment, an error in judgment in itself is not equal to negligence. The latter is more likely to be deemed to occur if the error in judgment was "an act of unskillfulness or carelessness or due to lack of knowledge."

How Do I Know The Difference?

If you or a loved one has suffered serious harm at the hands of a medical practitioner, you may feel disheartened or defeated when reading that an error in judgment is not, in itself, a clear case of medical malpractice in which you may be eligible for compensation and damages. Unless you're a medical expert yourself, how will you know if what happened to you was an unfortunate but ultimately understandable mistake or an example of negligence that breaches the standards of care.

In short, you can't. But you can contact a personal injury lawyer specializing in medical malpractice to help you investigate and determine whether you may have a case and claim for damages.

Recognized as one of Canada's top personal injury firms, Howie, Sacks and Henry has lawyers with the expertise to research the facts of a potential medical malpractice case. If we determine an error in judgment looks to have breached standards of care, we will call on medical experts to provide an opinion as to whether negligence or incompetence may have played a role.

In a complex and complicated area of law such as medical malpractice, knowing whether you have a case isn't always as clear as night and day. Determining the answer may take time; but when you contact an experienced and knowledgeable HSH medical malpractice lawyer, you can be confident that you'll have an attentive and compassionate advocate ready to help you find the answer.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions