Khan v Lee: Pleading a Medical Malpractice Claim — What You Must Say, and What You Cannot Yet Be Required to Prove

Rahim Khan was born on May 15, 1991, following an emergency Caesarean section. He suffered permanent brain damage resulting in serious mental and physical impairments. His parents believed that the obstetrician who oversaw Bibi Khan’s pregnancy and Rahim’s delivery, Dr. Joseph Lee, was responsible. In April 2011, almost twenty years after the birth, they issued a statement of claim.

What followed was not a trial of the medical issues. What followed was a four-year procedural battle over whether the statement of claim itself was good enough to be allowed to proceed. That battle, fought through three masters’ hearings, two Superior Court endorsements, and an appeal to the Court of Appeal for Ontario, produced one of the most important Ontario decisions on what plaintiffs in medical malpractice cases are required to plead, and what they are not yet required to prove.

The Pleading and the Problem

The statement of claim, issued April 5, 2011, set out the essential facts in brief terms: Dr. Lee had cared for Bibi Khan during her pregnancy and hospitalization, delivered Rahim Khan by emergency Caesarean section on May 15, 1991, and, because of his conduct, Rahim suffered permanent brain damage. The claim then listed fourteen particulars of alleged negligence in paragraph 8, subparagraphs (a) through (n).

Reading those fourteen subparagraphs, they cover a broad but recognizable range of obstetrical concerns: failure to use reasonable skill and care; failure to exercise appropriate knowledge and diligence; failure to follow accepted medical practices; failure to carry out diagnostic tests and procedures including those available to assess fetal growth and well-being; failure to diagnose the plaintiff’s condition; failure to recommend appropriate tests and procedures; failure to check and monitor the patient’s condition and respond accordingly; failure to prescribe medication and therapeutic procedures to prevent complications; failure to observe damage occurring to the infant and take steps to prevent injury; creation or increase of the risk of brain damage; failure to admit Bibi Khan to hospital when indicated; failure to provide for the availability of an immediate Caesarean section when indicated; creating or increasing the risk of brain damage through that failure; and failure to obtain informed consent.

Master Haberman, when the case first came before her, described the pleading this way: “Though 14 grounds of negligence are listed, most are boiler-plate in nature and fail to state with any specificity what it was that Lee did or failed to do that allegedly led to this unfortunate outcome.” She gave an example. The claim alleged Lee failed to admit Bibi Khan to hospital “when indicated”, but gave no indication of what he ought to have observed that would have led to that conclusion. Similarly, the claim alleged he failed to carry out diagnostic tests, but did not identify which tests were omitted or what they might have revealed.

Within a week of being served, Dr. Lee’s counsel sent a demand for particulars containing twenty detailed questions. What tests did the plaintiff say he ought to have performed? What medications should have been prescribed? What indications for hospitalization did he overlook? How did he increase the risk of injury to the infant? What was done without informed consent?

The plaintiffs’ response, filed May 6, 2011, was candid: they did not have any of these particulars. For seventeen of the twenty questions, their answer was that they “do not have particulars”, a phrase repeated that number of times in their response. They undertook to provide certain records when received.

The Procedural History: Four Years of Motion Practice

Master Haberman (2012 ONSC 1348): Ordering Examination of the Defendant

Dr. Lee moved to strike the statement of claim in its entirety without leave to amend, under Rules 21.01, 25.06 and 25.11 of the Rules of Civil Procedure. He filed no affidavit evidence in support of his motion. Instead, his factum asserted at paragraph 8 that “the statement of claim, as it is currently pleaded, fails to allow the Defendant or the Court to ascertain precisely the issues in dispute, nor does it permit the Defendant to respond to the allegations.”

The plaintiffs responded by serving a notice of examination of Dr. Lee under Rule 39.03(1), which permits examination of a witness before the hearing of a pending motion “for the purpose of having a transcript of his or her evidence available for use at the hearing.” Dr. Lee did not attend. The plaintiffs sought a court order compelling his attendance, and the matter came before Master Haberman in February 2012.

Master Haberman granted the order. Her analysis was precise: Dr. Lee had asserted in his own factum that he was unable to respond to the claim. Having made that assertion (without supporting evidence), he could not resist the plaintiffs’ attempt to examine him on it. A party cannot simultaneously take the position that the claim cannot be responded to and then refuse to speak to that position under oath. The examination was ordered; costs of $7,890 were awarded to the plaintiffs.

Master Haberman also noted that the case involved events from over twenty years prior, observing that this “time frame could be considered more than adequate for the plaintiffs to have figured out what, if anything, about Lee’s involvement with the case was deficient.” She observed, however, that the question of whether the claim itself would survive the motion to strike was “for another court on another day”; her role was only to determine whether the Rule 39.03 examination should be permitted. And she noted that in medical malpractice cases, “a more indulgent approach than one would normally encounter” might be appropriate.

Stevenson J. (2012 ONSC 4363): Appeal of the Master’s Order Dismissed

Dr. Lee appealed the Master’s order. Stevenson J. dismissed the appeal in July 2012. She upheld Master Haberman’s reasoning that Dr. Lee’s own assertion that he could not respond to the claim was sufficient to make his ability to respond a relevant issue on the pending motion to strike. Having raised it in his own factum, he could not now deny its relevance.

Stevenson J. also addressed the broader question of whether evidence is ever required on a Rule 25.11 motion. She concluded it sometimes is, drawing on Chenier v Hôpital Général de Hawkesbury, [2006] OJ No 1679, where a motion to strike a similarly general birth injury pleading had been dismissed because the defendant physicians had not filed any affidavit evidence that the pleading was too vague to permit them to respond. She also noted that Basdeo (Litigation Guardian of) v University Health Network, [2002] OJ No 263, where a motion to strike specific boilerplate paragraphs succeeded without affidavit evidence, was distinguishable: it had operated under Rule 25.06 only, and had struck specific paragraphs with leave to amend rather than dismissing the entire claim without leave.

The Examination of Dr. Lee (December 2012) and Master Graham’s Ruling (July 2013)

The examination of Dr. Lee took place on December 11, 2012. It confirmed that after more than twenty years he had no independent recollection of Bibi Khan or the clinical issues involved. It confirmed that Dr. Lee destroys his own medical records after ten years and that his office records for Bibi Khan no longer existed. It confirmed that copies of his office chart did still exist, and that both parties now had them. It also confirmed that the plaintiffs had obtained copies of the hospital records and had provided them to Dr. Lee before his examination.

During the examination, Dr. Lee’s counsel objected to a number of questions as constituting premature examination for discovery rather than examination on the motion to strike. Master Graham upheld those refusals in July 2013: the examination was limited to whether the statement of claim provided Dr. Lee with sufficient knowledge to allow him to plead in his own defence, and the refused questions went beyond that scope.

Morgan J. (2014 ONSC 1497): The Claim Is Struck

The motion to strike the statement of claim came before Morgan J. in March 2014. The plaintiffs’ position at the hearing was that they had nothing further to add to the claim; their counsel stated they had included “the minimal amount of factual information required of them.” They did not seek leave to amend.

Morgan J. struck the claim in its entirety without leave to amend. He relied on the reasoning in Basdeo, which he preferred to the approach in Chenier. He quoted Nordheimer J.’s observation in Basdeo that defendants are entitled to have “some indication of how they failed to exercise reasonable skill and care, what diagnostic steps were not taken, what tests were not administered, what medications should have been prescribed but were not.” He found that despite the examination of Dr. Lee and the review of available hospital records, the plaintiffs still could not say what tests were omitted, what indications for hospitalization were overlooked, how the risk to Rahim was increased, or what was done without consent.

He rejected the argument that different causes of action attract different pleading requirements, observing that “the Rules do not differentiate between different causes of action in respect of the requirements for pleadings.” He awarded costs to the defendant of $10,906.53 all-inclusive on a partial indemnity basis, noting the disparity between the plaintiffs’ junior counsel (Millie Sparling, called to bar in 2013, billing at $175/hour) and the defendant’s experienced counsel (C. Kirk Boggs, thirty years at bar, billing at $350/hour).

The Court of Appeal (2014 ONCA 889): The Claim Is Restored

The plaintiffs appealed to the Court of Appeal for Ontario. The panel was Laskin, Gillese and Pardu JJ.A.; the reasons were delivered by Pardu J.A. on December 11, 2014. The appeal was allowed.

Pardu J.A. resolved the conflict between Basdeo and Chenier in unambiguous terms: Chenier was preferred. The plaintiffs were entitled to plead in the terms they had, and the statement of claim was sufficient to enable Dr. Lee to deliver a defence. The order of Morgan J. was set aside.

The plaintiffs were awarded costs of the motion in the sum of $8,357.41 all-inclusive and costs on the appeal fixed at $15,000 all-inclusive.

The Legal Analysis: What the Court of Appeal Decided

The Core Principle: No Expert Required Before Pleading

The central holding of the 2014 ONCA 889 decision can be stated simply: a plaintiff in a medical negligence action should not be expected to obtain an expert opinion before pleading. Particularization of the allegations against the defendant can wait until production and discovery, when the plaintiff will have access to the information they need to identify the specific acts or omissions constituting the alleged negligence.

This principle reflects a basic asymmetry in medical malpractice litigation that the court acknowledged directly. The defendant physician was present at every relevant clinical event. He documented his assessments and interventions in his own chart. He knew what tests he ordered and what tests he did not. He knew the fetal heart rate tracings and what response, if any, he made to them. He knew when he considered Caesarean section and when he decided to wait. The plaintiff was a patient who knew what she experienced but could not know, without expert assistance and access to the clinical records, exactly what should have been done differently. To require her to specify those particulars before she has had access to the records and the assistance of an expert would require her to know things she cannot know.

Pardu J.A. quoted Aitken J.’s observation in Chenier that best captures this reality: “The Defendants are in the position of knowing with great particularity what was done or not done by way of treatment and intervention. The Plaintiffs will only be able to further particularize their allegations once any records that have been disclosed to them by the Defendants are further supplemented with responses given on discovery. The Plaintiffs cannot be expected to have retained their own medical experts to assist in particularizing their allegations regarding a breach of a standard of care by the Defendant Physicians before those experts would have access to all available information as to what actually happened at the time of Sacha’s birth.”

The Limitation Period Problem

There is a further practical reason why requiring an expert opinion before pleading would be unjust. A limitation period begins to run when a plaintiff has “sufficient facts upon which she could allege negligence”, and in some cases, that point is reached before the plaintiff has expert opinion evidence or knows the precise cause of the injury. This was confirmed in Lawless v Anderson, 2011 ONCA 102. If a plaintiff must plead before obtaining expert evidence (because the limitation period is running), and if expert evidence is required before the pleading is sufficient, the plaintiff is trapped in a logical impossibility.

Pardu J.A. cited the description in McSween v Louis, 2000 CanLII 5744 (ONCA) of “the production and discovery process and obtaining expert reports after acquiring knowledge through that process” as “litigation procedures commonly used by a plaintiff to learn the details of how the injury was caused, or even about the existence of other possible causes and other potential defendants.” The pleading is the beginning of the process, not the end of it. Particulars that come from discovery and expert review are entirely appropriate; the pleading simply needs to frame the claim sufficiently to allow the defendant to respond.

The Rules Do Differentiate Between Causes of Action

One of Morgan J.’s stated reasons for striking the claim was that “the Rules do not differentiate between different causes of action in respect of the requirements for pleadings,” and that if conspiracy plaintiffs must plead with specificity, so must medical malpractice plaintiffs. Pardu J.A. disagreed with both propositions.

The Rules of Civil Procedure do differentiate. Rule 25.06(8) specifically provides that “[w]here fraud, misrepresentation, breach of trust, malice or intent is alleged, the pleading shall contain full particulars.” This heightened standard applies to causes of action involving intentional misconduct, not to negligence. Medical negligence is not in this category. The requirement to plead “full particulars” applies where fraud or malice is at stake, where a defendant needs to know precisely what dishonest conduct is being attributed to them. A negligent obstetrician is in a different position: the allegation is that he fell below the standard of care in his clinical management, not that he acted dishonestly. The level of specificity required at the pleading stage reflects that difference.

The Defendant’s Own Position

The court noted something that had been observed throughout the procedural history: Dr. Lee never swore an affidavit stating that he was unable to plead a defence. His factum asserted this, but only as a written submission, not sworn evidence. This mattered because a party who argues that a pleading is too vague to respond to is making a factual claim about their own state of knowledge and ability to defend. That claim should be supported by evidence. Pardu J.A. observed that “presumably, the defendant would be aware of the standard of care at the relevant time. He has his office chart and the hospital records, so he would know what he did or did not do. His interactions with the patient over the period of the pregnancy are discrete and identifiable, over a relatively short period.”

The failure to file such an affidavit (a failure that had been noted by Master Haberman, led to the examination of Dr. Lee, and had been commented upon by Stevenson J.) was woven throughout the court’s assessment of the defendant’s position. A physician who knows what he did, has access to the records, and knows the standard of care applicable at the time is in a very different position from someone who genuinely cannot understand what they are being asked to answer for.

Access to Justice

Pardu J.A. expressly invoked access to justice as an important value in this context, citing Hryniak v Mauldin, [2014] 1 SCR 87, where the Supreme Court of Canada emphasized the importance of timely, affordable, and proportionate access to justice in civil proceedings. Striking a medical malpractice claim because the plaintiff (who may not have the financial resources to commission an expert opinion before having access to production) cannot identify with scientific precision the specific acts of negligence they intend to prove would significantly impede rather than facilitate access to justice. Rule 1.04(1) of the Rules of Civil Procedure requires that the rules be “liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.” Striking a legitimate claim at the threshold is in tension with that mandate.

Basdeo Is Not Followed

Pardu J.A. was explicit that she did not agree with Basdeo and preferred the reasoning in Chenier. This resolved a conflict between Superior Court decisions that had been generating uncertainty in pleading practice. After 2014 ONCA 889, the governing Ontario appellate authority is that a medical malpractice statement of claim in the terms used in Khan v Lee, identifying the defendant physician, the period of care, the nature of the alleged failure (broadly), and the harm suffered, is sufficient to survive a motion to strike and to require a defence.

What Khan v Lee Means for Medical Malpractice Plaintiffs

The Minimum Required in the Pleading

After Khan v Lee, the minimum content required in a statement of claim for a medical negligence action in Ontario is a pleading that:

Identifies the defendant physician and the relevant period of care. Names the patient whose care is at issue. States the nature of the alleged failure at a sufficient level of generality (failure to diagnose, failure to order appropriate investigations, failure to treat, failure to refer, failure to obtain consent) in language that allows the defendant to understand the category of conduct being challenged. Identifies the harm alleged to have resulted from the defendant’s conduct. This is sufficient. The plaintiff need not, at the pleading stage, identify the specific tests that should have been ordered, the exact indications that were overlooked, the precise investigations that were omitted, or the step-by-step treatment pathway that should have been followed.

When Particulars Are Required

Particulars will be required, but at the right stage in the litigation. After production and discovery, when the plaintiff’s counsel has reviewed the clinical records with the assistance of an expert who understands the relevant standard of care, the particulars of the alleged breach will become ascertainable. Those particulars belong in the expert report and in the pretrial particulars delivered after discovery, not in the initial pleading. A defendant who requires greater specificity before delivering a defence should use the demand for particulars process, and accept that the plaintiff may legitimately say, at the pleading stage, that they do not yet have those particulars.

What to Avoid

The decision does not grant a blank cheque to utterly content-free pleadings. The claim must “contain a concise statement of the material facts on which the party relies”; Rule 25.06(1) still applies. A pleading that stated only “the defendant was negligent and his negligence caused my client’s injuries” would likely not survive. What Khan v Lee establishes is that the pleading in that case, identifying the patient, the pregnancy care, the delivery by emergency Caesarean section, and fourteen specific categories of alleged failure of obstetric management, is sufficient. The claim frames the field of the dispute and informs the defendant of the general nature of the alleged conduct; it does not need to be a substitute for an expert report.

The Defendant Cannot Require an Expert Before the Pleading

The most practically significant aspect of Khan v Lee is the explicit rejection of any requirement to obtain an expert opinion as a condition of issuing a medical negligence claim. Many medical malpractice cases involve limitation period pressure. A plaintiff whose limitation period is approaching may need to file a claim before having commissioned and received an expert report. That plaintiff is entitled to file a claim with the level of generality established in Khan v Lee, preserve the limitation period, and then pursue production and discovery to develop the specific particulars that will sustain the action. To hold otherwise would be to require a plaintiff to do in weeks or months what properly takes years, namely obtaining all clinical records, finding and retaining a qualified expert, obtaining their report, and identifying specific acts of negligence, as a condition of even beginning the litigation process.

A Note on the Merits

Khan v Lee decided nothing about whether Dr. Joseph Lee was actually negligent in his care of Bibi Khan and in the delivery of Rahim Khan. The case produced no findings about the standard of care applicable to an obstetrician in 1991, about what tests or interventions were appropriate for Bibi Khan’s pregnancy, or about whether different management would have prevented Rahim’s brain damage. Those questions, the substantive medical malpractice questions, remained unresolved at the Court of Appeal. Whether they were ultimately resolved on the merits in subsequent proceedings is not recorded in the five decisions that form this case record. Khan v Lee is a pleadings case. Its value lies in the procedural principles it establishes, not in any finding about obstetrical practice.

For practitioners, that distinction matters. The fourteen subparagraphs in the Khan v Lee statement of claim are a procedurally sufficient pleading in Ontario for an obstetric malpractice birth injury case. They are not, and are not intended to be, a substitute for the specific, expert-supported allegations that will ultimately need to be developed through production, discovery, and expert reporting to prove the case at trial.

Khan v Lee in the Birth Injury and General Medical Malpractice Series

This case is cited in both the Birth Injury Claims Guide and the General Medical Malpractice Claims Guide in this series for the propositions that govern what plaintiffs must include in their initial statement of claim and what they may develop through the litigation process. It is also cited in the Cancer Diagnosis Claims Guide and the Stroke Claims Guide in the context of advising potential plaintiffs about the initial steps in commencing a claim.

The decision pairs naturally with Cheung v Samra, https://canlii.ca/t/jmzv5 and KS v Willox, https://canlii.ca/t/htrbz as examples of birth injury litigation where the substantive merits were ultimately determined, showing what a fully developed birth injury claim looks like as distinguished from the pleading-stage sufficiency question in Khan v Lee.

Quick Reference: Khan v Lee

The Five Decisions

• Khan et al v Lee, 2012 ONSC 1348 — https://canlii.ca/t/fqbx6 | Master Haberman | February 28, 2012 | Rule 39.03 examination of defendant ordered; costs $7,890 to plaintiffs
• Khan v Lee, 2012 ONSC 4363 — https://canlii.ca/t/fs7qb | Stevenson J. | July 25, 2012 | Appeal of Master’s order dismissed; costs to plaintiffs
• Khan v Lee, 2014 ONSC 1497 — https://canlii.ca/t/g62dv | Morgan J. | March 6, 2014 | Statement of claim struck without leave to amend; costs $10,906.53 to defendant
• Khan v Lee, 2014 ONCA 889 — https://canlii.ca/t/gflt8 | Laskin, Gillese and Pardu JJ.A. | December 11, 2014 | Appeal allowed; claim restored; costs of motion $8,357.41 and appeal $15,000 to plaintiffs (PRIMARY AUTHORITY)
• Note: Documents 3 and 4 as uploaded are duplicates of 2012 ONSC 1348

The Parties

• Plaintiff: Rahim Khan (minor, by litigation guardian Bibi Khan); Zameer Khan (father); Bibi Khan personally
• Defendant: Dr. Joseph Lee (obstetrician), who cared for Bibi Khan during pregnancy, hospitalization and delivery of Rahim Khan on May 15, 1991
• Alleged harm: Permanent brain damage and serious mental and physical impairments to Rahim Khan
• Note: This case was NEVER decided on its merits; it is a pleadings and procedure decision only

The Procedural Timeline

• May 15, 1991: Rahim Khan born by emergency Caesarean section; brain damage suffered
• April 5, 2011: Statement of claim issued (~20 years after the events)
• April 27, 2011: Dr. Lee’s 20-question demand for particulars
• May 6, 2011: Plaintiffs’ response of “do not have particulars” for 17 of 20 questions
• February 28, 2012: Master Haberman orders examination of defendant under Rule 39.03 (2012 ONSC 1348)
• July 25, 2012: Stevenson J. dismisses Dr. Lee’s appeal of Master’s order (2012 ONSC 4363)
• December 11, 2012: Dr. Lee examined under Rule 39.03, with no recollection of patient; own records destroyed after 10 years
• July 3, 2013: Master Graham upholds defendant’s refusals to answer questions as beyond motion scope
• March 6, 2014: Morgan J. strikes claim without leave to amend (2014 ONSC 1497)
• December 11, 2014: ONCA allows appeal, restores claim (2014 ONCA 889)

Key Legal Principles (ONCA 2014 ONCA 889)

• A plaintiff in a medical negligence action is NOT required to obtain an expert opinion before pleading; particulars can be developed through production and discovery
• A statement of claim is sufficient under Rule 25.06(1) if it identifies the defendant, the period of care, the general categories of alleged failure, and the harm suffered; plaintiffs need not identify specific tests omitted, exact indications overlooked, or precise treatment steps at the pleading stage
• The Rules of Civil Procedure DO differentiate between causes of action: Rule 25.06(8) requires “full particulars” for fraud, misrepresentation, breach of trust, malice or intent; medical negligence does not attract this heightened standard
• Striking a medical negligence claim for insufficient particulars when the plaintiff cannot yet know the specific acts of negligence significantly impedes access to justice (citing Hryniak v Mauldin)
• Limitation periods may begin to run before a plaintiff has expert evidence or knows the precise cause of injury (Lawless v Anderson, 2011 ONCA 102); requiring expert evidence before filing would trap plaintiffs in an impossible position
• A defendant who asserts inability to plead a defence but files no sworn evidence of that inability is in a weak position to resist examination on the pending motion (Rule 39.03)
• Chenier v Hôpital Général de Hawkesbury, [2006] OJ No 1679 is the correct approach; Basdeo (Litigation Guardian of) v University Health Network, [2002] OJ No 263 is not followed by the ONCA

The Pleading at Issue

• The fourteen subparagraphs in paragraph 8 of the Khan v Lee statement of claim, alleging failure to use reasonable skill and care, failure to diagnose, failure to order tests and procedures, failure to monitor fetal growth and well-being, failure to admit to hospital, failure to provide for Caesarean section, creation of increased risk, and failure to obtain informed consent, were found by the ONCA to be sufficient to allow the defendant to deliver a statement of defence in a birth injury obstetric malpractice case

Related Cases in This Series

• KS v Willox, 2018 ABCA 271 — https://canlii.ca/t/htrbz — a birth injury obstetric malpractice case that proceeded to full trial and appeal on the merits; article in this series
• Cheung v Samra, 2022 ONCA 195 — https://canlii.ca/t/jmzv5 — IUGR and failure to advance delivery date; a birth injury claim that reached the Court of Appeal; article in this series
• Bailey v Young, 2022 NSSC — birth injury; obstetric malpractice; article forthcoming in this series
• Malinowski v Schneider, 2012 ABCA — https://canlii.ca/t/fslb9 — obstetric malpractice; the duty of a referring physician; article in this series