Case selection difficult ‘particularly with respect to role of causation in establishing liability’

Practical realities of value versus cost important factor: Bogoroch & Associates’ Toby Samson

This article was produced in partnership with Bogoroch & Associates

By Julius Melnitzer | November 27, 2023

Deciding whether to take on a medical malpractice case can be a conundrum – and a great deal of work – even for experienced lawyers.

At the outset, an injury has to be serious enough to merit the cost of prosecuting what are routinely highly complex actions against the well-funded health care establishment and its top-tier counsel roster. But determining the seriousness of the injury can be easier said than done.

“A nerve injury, for example, may show improvement in the first six months, but that’s not always a reliable indicator of the injury’s severity because it can take up to two years to determine whether it’s permanent or not,” says Toby Samson, a medical malpractice partner at Bogoroch & Associates LLP, a Toronto-based civil litigation boutique whose focus includes medical malpractice and personal injury cases.

There is, of course, no requirement that an injury be permanent to be actionable or warrant significant damages in medical malpractice cases, but the economics of litigating are always a looming consideration.

“Unless you have something really, really awful, short-term damages frequently aren’t worth pursuing,” Samson says.

Even if the injury’s severity is not in doubt, that’s hardly the end of the matter in determining whether to take the case.

“There’s a lot more to think about, particularly with respect to the role of causation in establishing liability,” Samson says. MORE . . .

Julius Melnitzer is a Toronto-based legal affairs writer, ghostwriter, writing coach and media trainer. Readers can reach him at [email protected] or


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