Ruling rejects battery claim upon finding patient followed instructions, did not ask doctor to stop
In a medical malpractice action arising from trigger-point needling treatment, the British Columbia Court of Appeal agreed with a judge’s findings that the patient could not prove her claims for negligence and lack of informed consent without presenting expert evidence.
In Lungu v. Cabrita, 2025 BCCA 435, the patient was a self-represented appellant who filed a medical malpractice action against the respondent physiatrist. The patient brought claims alleging negligence, lack of informed consent, and battery.
The patient asserted that the physiatrist performed trigger-point needling treatment without her informed consent, pierced and destroyed her bones with needles, and caused disabling and permanent pain.
The patient argued that she did not know why she had an appointment with a physiatrist, as her family doctor had referred her by mistake. The evidence included a referral in which the family doctor indeed sent the patient to the physiatrist at the Canadian Pain and Regenerative Institute, but provided reasons for referral consistent with the patient’s claims.
The physiatrist cited the expert opinion of Dr. H. Finlayson. Dr. Finlayson’s report stated that the patient’s post-treatment imaging showed no signs of needle trauma or other injury that the physiatrist’s treatment might have caused. In her report, Dr. Finlayson found that the physiatrist:
- complied with the standard of care of a reasonable and competent physiatrist in delivering treatment and post‑treatment care
- did not breach the standard by failing to address the risk of injuring bones by needling
- did not believe, to the best of her knowledge, that such a risk existed
After a summary trial, in November 2024, a chambers judge of the Supreme Court of British Columbia rejected the negligence and informed consent claims. The judge accepted Dr. Finlayson’s expert opinion, which the patient failed to contradict by presenting expert evidence.
On appeal, the patient alleged that her family doctor should have referred her to a psychiatrist, not a physiatrist, for an assessment. The patient sought to admit fresh evidence, including a letter dated Jan. 6, in which her family doctor stated that she made the referral to the physiatrist by mistake and instead wanted to send the patient to a psychiatrist for an assessment.
The patient argued that the judge misapprehended portions of the evidence and made multiple errors. Specifically, the patient claimed that the judge erred in:
- considering the case suitable for a summary trial
- making factual findings
- admitting and accepting Dr. Finlayson’s report
- failing to consider Dr. Finlayson’s bias in the physiatrist’s favour
- not weighing Dr. Finlayson’s lack of personal knowledge of the underlying events
Last Apr. 1, the appeal court stayed the patient’s tort claim against the physiatrist until she could post $1,000 as security for costs. The decision gave the patient more time to post the security in a smaller amount than the physiatrist had requested.
Patient’s appeal denied
The Court of Appeal for British Columbia dismissed the appeal.
The appeal court expressed sympathy for the patient and acknowledged that the appointment with the physiatrist confused and distressed her. However, the appeal court saw no reversible errors on the chambers judge’s part.
First, the appeal court saw no error in the judge’s finding that the case was suitable for a summary trial. The appeal court ruled that the judge carefully addressed the relevant factors and circumstances and showed sensitivity to the patient’s difficulties as a self‑represented litigant pursuing a medical malpractice action.
Second, the appeal court held that the patient failed to show a palpable and overriding error in the judge’s acceptance of Dr. Finlayson’s expert opinions as reliable.
Third, the appeal court determined that the letter failed to meet the last of the four criteria in Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 SCR 759, regarding whether the evidence, if believed, could have impacted the trial outcome.
Fourth, regarding the battery claim, the appeal court found that the judge correctly noted that consent in the medical context could be oral, written, or implied by the patient’s words or actions. The appeal court accepted that the patient did not verbally consent. However, the appeal court pointed out that the patient followed the physiatrist’s instructions and did not tell her to stop.
Fifth, regarding negligence, the appeal court stated that none of the alleged errors could alter the trial outcome, given its conclusion that the judge correctly found that the patient could not prevail in her negligence claim absent her own expert evidence. However, the appeal court still addressed the arguments on negligence due to their importance to the patient’s view of her appeal.
The appeal court rejected the patient’s arguments that the judge misapprehended the evidence of her past medical history in finding that her medical history showed a history of chronic pain in her neck radiating to her shoulders, and erred by failing to see that the post‑treatment magnetic resonance imaging proved that the treatment caused her injury.
The appeal court then found that the factual error pointed to a mistake by the patient’s family doctor, not by the physiatrist. The appeal court explained that this error did not affect the judge’s acceptance of Dr. Finlayson’s opinions or her conclusion that the patient needed to present expert evidence to prove negligence and lack of informed consent.
