Examinations for Discovery / Medical Malpractice
In a malpractice case you are questioned about the most difficult period of your life, against a written record you did not write and have probably never read in full. Knowing what the questions are for makes the day far easier.
Reviewed August 2026Start here
This guide covers what is specific to a malpractice claim. For the process itself, including how long an examination lasts, who attends, undertakings and refusals, and the ten rules for giving evidence well, read our general guide to examinations for discovery in Ontario first.
Almost every question you are asked will be anchored to a document. Defence counsel will have the complete chart: physician notes, nursing notes, operative reports, medication administration records, imaging, lab results, consent forms, and triage times. They will have read it more carefully than anyone else in the room.
Two consequences follow. The first is that you should read your own records before the examination. Your lawyer will provide them and go through the significant entries with you. The second is that where your memory and the chart differ, you say what you actually remember.
The chart is evidence of what was written. It is not proof of what happened.
Records contain errors. Entries are made hours after the fact, times are approximated, boxes are ticked by habit, and a template phrase such as "risks discussed" may or may not reflect an actual conversation. If the note says you were told something and you were not, say so plainly and let your lawyer deal with the discrepancy. Do not argue about the record, and do not adopt an entry simply because it is written down.
Expect to move through the care in order, sometimes in considerable detail. The usual sequence is your health before the events in question, the first presentation and what symptoms you reported, each subsequent visit or stage of treatment, when your condition changed and who you told, and what has happened since.
Dates and sequence matter more than clients expect, because so much of a malpractice case turns on whether a diagnosis or intervention was delayed. If you cannot fix a date, give a range you are confident about and say it is an estimate. Never manufacture precision.
Where the claim includes a failure to obtain informed consent, you will be asked in detail about the pre-treatment discussion. What risks were explained. What alternatives were mentioned, including the option of doing nothing. What you understood the procedure was for. What you asked, and what you were told in reply.
Counsel will then ask what you would have done had you been told about the risk that materialized. Answer honestly, but understand what the question is doing. Canadian law does not decide the point on your say-so alone. Causation in a failure to disclose case is assessed on a modified objective standard, which asks what a reasonable person in your particular circumstances would have decided if properly informed. Your own evidence matters, and so do your reasons, your priorities at the time, and how urgent the treatment was.
Reibl v Hughes, 1980 CanLII 23 (SCC), [1980] 2 SCR 880.Clients find this the most intrusive part of a malpractice discovery, and it is worth understanding before you are sitting there. You will be asked about conditions, treatments, injuries, and appointments that have nothing to do with the care you are complaining about. Family doctor records, pharmacy records, OHIP summaries, prior imaging, and often mental health records are produced.
The reason is causation and damages. The defence position in most malpractice cases is not only that the care met the standard, but also that the outcome would have been the same regardless. Your prior health is how they test that. If you have a pre-existing condition that was going to progress anyway, or a prior injury to the same body part, that goes directly to what the alleged negligence actually caused.
This questioning is legitimate and you cannot avoid it by objecting to how personal it feels. What you can do is answer it accurately rather than defensively. Understating your prior symptoms is the single most damaging thing a plaintiff can do in a malpractice discovery, because the records will contradict you and the contradiction will be the thing that gets read at trial.
Somewhere in the examination you will be asked a cluster of questions that sound like sympathy and are not. When did you first think the care might have been substandard. Who first raised it with you, and when. When did you request your records. When did you complain to the hospital, or to the College. When did you first speak to a lawyer.
These questions go to the limitation period. In Ontario the basic period runs two years from the day the claim was discovered, meaning the day you first knew, or ought reasonably to have known, that an injury had occurred, that it was caused by the defendant, and that a proceeding would be an appropriate way to address it. Defence counsel is building a timeline to argue that clock started earlier than you say.
Limitations Act, 2002, SO 2002, c 24, Sch B, ss 4 and 5.Answer these questions carefully and precisely. Suspecting that an outcome was poor is not the same as knowing that it was caused by negligence, and a vague "I always thought something was off" can do real damage. If you do not remember when you learned something, say so rather than estimating generously.
Whether the care fell below the standard is proven at trial through expert evidence from physicians in the relevant specialty. It is not established by your opinion, and you will not be asked to give one. If a question invites you to say whether something was done properly, that is a question for the experts.
Be particularly careful with what other doctors have said to you. Patients are often told by a later treating physician that the earlier care was poor. Repeating that at discovery is hearsay, it commits you to a position you cannot support, and the physician who said it very often will not say the same thing under oath. Describe what you were told, if asked directly, and do not present it as fact.
Malpractice claims frequently name several parties: one or more physicians, a hospital, and sometimes nurses, midwives, or a clinic. Physicians are usually defended by counsel instructed by the Canadian Medical Protective Association, while hospitals and their staff are defended separately. Each defendant has its own lawyer, and each of them may examine you.
Practically, that means a longer day than in a single defendant case, and it often means the seven hour limit is extended by agreement. It also means the questioning can feel repetitive. Answer each lawyer as if the question is new, and do not shorten an answer because you gave it an hour ago.
The last portion of the examination usually turns to the effect of the injury. Expect questions about your work history and income, what you can and cannot do now, treatment you have had and have declined, care and assistance provided by family members, and out-of-pocket costs.
Where a spouse, child, or parent has advanced a claim under the Family Law Act, those family members are parties and can be examined too. Their examinations focus on the relationship before and after, and on the care they provide. They need their own preparation meeting.
Discovery runs both ways. Your lawyer will examine the defendant physician and a representative of the hospital, under oath, about what they did, what they were thinking, what they knew, and why they made the choices they made. It is frequently the most important evidence obtained in the entire case, and it is the first time anyone has had to answer for the care on the record.
Clients are usually entitled to attend those examinations. Many find it valuable. Discuss it with your lawyer, because it is not the right choice for everyone.
Davidson Cahill Morrison LLP
Our medical malpractice lawyers prepare clients for discovery in claims against physicians, hospitals, and other health professionals across Ontario. If you are facing an examination, we are glad to answer your questions.
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