Court admits portions of neurosurgeon's apology note but dismisses medical negligence claim
The Saskatchewan Court of King’s Bench has ruled that provincial apology legislation does not automatically shield factual admissions contained in a medical record simply because the document also includes an apology.
In Hander v. Kumar, 2026 SKKB 161, the court dismissed a medical negligence claim against a neurosurgeon, finding that the physician did not breach the applicable standard of care when assessing an elderly patient who subsequently developed paraplegia.
The decision arose from a retrial ordered by the SK Court of Appeal after the original trial ended with a directed verdict dismissing the claim. One of the issues before the court was whether statements the neurosurgeon recorded after apologizing to the patient were admissible under s. 23.1 of Saskatchewan’s The Evidence Act, 2006.
Apology followed spinal injury
The case arose after an 82-year-old patient fell at his home on July 29, 2015, striking his neck against the edge of a bathtub. The following day, he sought medical attention for neck and shoulder pain. An X-ray could not confirm whether he had sustained a fracture, prompting a recommendation for a CT scan.
On August 7, the patient returned to hospital with persistent neck pain, weakness and numbness in his fingers. He was referred to Regina General Hospital, where a neurosurgeon conducted a neurological examination and reviewed CT imaging. The neurosurgeon found no neurological deficits or obvious fractures requiring treatment and discharged the patient. His condition subsequently deteriorated, and an MRI revealed an epidural hematoma compressing his spinal cord.
The patient underwent decompression surgery on August 11, 2015, but the procedure could not reverse the spinal cord damage, leaving him paraplegic.
On August 23, 2015, the neurosurgeon visited the patient at Regina General Hospital, apologized for what had happened and documented the conversation in a progress note. The note included statements acknowledging that he had failed to diagnose the patient's condition correctly and had made a mistake.
The patient's estate sought to rely on the progress note in its medical negligence claim.
Court distinguishes apology from factual admissions
The court considered s. 23.1 of The Evidence Act, which prevents parties from using apologies as evidence of fault or liability.
The plaintiff argued that The Health Information Protection Act governed the progress note because it formed part of the patient's medical chart. The defence maintained that the apology provision excluded the entire note.
The Court of King’s Bench rejected both positions and adopted a contextual approach to determining which portions of the progress note were admissible. It found it unnecessary to address the plaintiff's arguments concerning The Health Information Protection Act.
The court excluded the physician's statement expressing regret over the missed diagnosis and its contribution to the patient's condition but admitted separate factual statements acknowledging that he had failed to diagnose correctly and had made a mistake.
The court found that the statements qualified as factual admissions from which liability might be inferred, making them admissible despite the statutory protection afforded to the physician's apology.
Apology protection does not extend to the entire document
The court rejected the argument that admitting portions of the note would discourage healthcare professionals from apologizing. It explained that including an apology in a longer document does not automatically protect every statement within it.
The court found that a contextual approach protects genuine apologies from admission into evidence while preserving the court's ability to consider other relevant factual statements.
Negligence claim dismissed
Despite admitting portions of the progress note, the court found that the statements did not establish professional negligence. It noted that an error in professional judgment does not necessarily constitute negligence and that physicians are not required to meet a standard of perfection.
The court considered expert testimony from both parties and found that the neurosurgeon’s assessment did not fall below the applicable standard of care.
The plaintiff's expert acknowledged that the hematoma was not visible on the August 7 CT scan and that, in the absence of neurological deficits, it was reasonable for the neurosurgeon not to consult a radiologist or order further testing.
The court concluded that the plaintiff had not established a breach of the standard of care on a balance of probabilities. It dismissed the claim without determining causation or damages.
