SK Court of King's Bench: Clarifies Saskatchewan Apology Law Medical Admissions

• The Saskatchewan Court of King's Bench ruled that provincial apology legislation does not automatically shield factual admissions within medical records, even if part of an apology note.
• In Dykstra (Estate) v. Kumar, 2026 SKKB 161, the court adopted a contextual approach to determine the admissibility of a neurosurgeon's progress note containing both an apology and factual statements.
• Statements of regret were excluded, but factual admissions acknowledging a failure to diagnose correctly and making a mistake were admitted as evidence.
• The court found that these factual admissions could imply liability, making them admissible despite the protection offered to apologies under s. 23.1 of The Evidence Act, 2006.
• Despite admitting portions of the note, the court ultimately dismissed the medical negligence claim, concluding that the statements did not establish a breach of the standard of care.

This ruling underscores that while physician apology evidence is protected, factual admissions medical records admissibility remains subject to judicial review, particularly when they could imply professional negligence.

The Saskatchewan Court of King's Bench recently clarified the scope of provincial apology legislation in a medical negligence claim, Dykstra (Estate) v. Kumar, 2026 SKKB 161. This decision stemmed from a retrial, ordered by the SK Court of Appeal, concerning an elderly patient who developed paraplegia after a fall. The patient initially sought care on July 30, 2015, for neck and shoulder pain following a fall the previous day where he struck his neck. An X-ray was inconclusive regarding a fracture, leading to a recommendation for a CT scan.

By August 7, the patient's condition worsened, presenting with persistent neck pain, weakness, and numbness in his fingers. He was subsequently referred to Regina General Hospital, where a neurosurgeon conducted an examination and reviewed CT images. Finding no apparent neurological deficits or fractures requiring immediate treatment, the neurosurgeon discharged the patient. However, the patient's condition deteriorated further, and an MRI subsequently revealed an epidural hematoma compressing his spinal cord. Despite undergoing decompression surgery on August 11, 2015, the spinal cord damage could not be reversed, resulting in paraplegia.

On August 23, 2015, the neurosurgeon visited the patient at Regina General Hospital to apologize for the outcome. This conversation was documented in a progress note, which included statements acknowledging a failure to correctly diagnose the patient's condition and admitting to a mistake. The patient's estate later sought to introduce this progress note as evidence in its medical negligence claim against the neurosurgeon.

A central issue in the retrial revolved around the admissibility of the neurosurgeon's progress note under Saskatchewan’s apology law, specifically s. 23.1 of The Evidence Act, 2006. This section generally prevents apologies from being used as evidence of fault or liability. The plaintiff contended that the entire progress note, as part of the patient's medical chart, was governed by The Health Information Protection Act and should be admissible. Conversely, the defense argued that the apology provision of The Evidence Act, 2006, should exclude the entire note from consideration.

The SK Court of King's Bench rejected both extreme positions. Instead, the court adopted a nuanced, contextual approach to determine which specific portions of the progress note were admissible. This approach aimed to balance the legislative intent to protect genuine apologies with the court's responsibility to consider all relevant factual statements. The court found it unnecessary to delve into the plaintiff's arguments concerning The Health Information Protection Act, focusing solely on the application of the apology legislation.

Applying its contextual framework, the court distinguished between expressions of regret and concrete factual admissions within the neurosurgeon's note. It ruled to exclude the physician's statement expressing regret over the missed diagnosis and its contribution to the patient's condition. However, the court admitted separate statements from the note where the neurosurgeon acknowledged failing to diagnose correctly and making a mistake. These were deemed factual admissions from which liability might potentially be inferred, making them admissible despite the statutory protection typically afforded to apologies under the Saskatchewan apology law medical admissions framework.

The court explicitly rejected the argument that admitting portions of such a note would deter healthcare professionals from offering apologies. It reasoned that the mere inclusion of an apology within a broader document does not automatically shield every statement contained therein. This ruling underscores that while physician apology evidence is protected, factual admissions medical records admissibility remains subject to judicial review, particularly when they could imply professional negligence.

Ultimately, despite admitting specific factual statements from the neurosurgeon's note, the court concluded that these admissions did not establish professional negligence. The ruling reiterated that an error in professional judgment does not automatically constitute negligence, and physicians are not held to a standard of perfection. The decision in Dykstra (Estate) v. Kumar, 2026 SKKB 161, provides crucial clarity on the application of Saskatchewan's apology law, particularly concerning medical negligence claims.

This ruling emphasizes that the SK Court of King's Bench contextual approach will be applied to discern between protected expressions of regret and discoverable factual admissions. For healthcare professionals and their legal counsel, this means that while apologies themselves are protected, any accompanying factual admissions documented in medical records, even within an apology note, are not automatically shielded from evidence and will be subject to careful judicial scrutiny. This distinction is vital for understanding the scope of protection offered by the Saskatchewan apology law medical admissions provisions.

Lawyers advising healthcare professionals in Saskatchewan must counsel clients that while apologies are protected, factual admissions within medical records, even if part of an apology note, are not automatically shielded from evidence and will be subject to a contextual analysis by the court. This ruling clarifies the scope of apology legislation and impacts evidence strategy in medical negligence claims.

Source: Original reporting via Canadian Lawyer Magazine