Adam J. Patenaude

The appellant, mother of a man who killed his father, appealed a motion judge's order striking her negligence claim against two psychiatrists who treated her son.

The motion judge had struck the claim alleging negligence in treatment, finding no established duty of care and that imposing such a duty would create an impossible conflict with the duty owed to the patient.

The Court of Appeal allowed the appeal, finding that while the duty of care was not within an established category, the conflict analysis was speculative and should be determined on a proper evidentiary record rather than at the pleadings stage.

The court distinguished the case from precedents involving child protection and medical treatment of pregnant women, emphasizing that the patient and his parents shared a common interest in appropriate treatment.

The decision concerns a medical malpractice action brought by Scott Graham against Dr. Sheldon Berger and others, arising from care received at Bridgepoint Health following a motorcycle accident.

The plaintiff alleged negligence in failing to diagnose and treat osteomyelitis, resulting in prolonged recovery.

The court found that Dr. Berger met the standard of care, relying on expert evidence and the contemporaneous medical records, and that the infection was likely seeded before the plaintiff came under Dr. Berger’s care.

The action was dismissed.

The applicant, Songfu Liu, sought an extension of time to appeal the dismissal of his medical malpractice action against Dr. Jonathan Chan.

The original action alleged fraud and misrepresentation regarding a prostate cancer diagnosis and subsequent surgery.

The motion judge had dismissed the applicant's claims, finding no evidence of fraud and that the applicant's own expert supported the respondent's medical care.

The Court of Appeal dismissed the motion for an extension of time, finding that while the delay was short and excusable (due to a common self-represented litigant's mistake about appeal period commencement), the proposed appeal was entirely devoid of merit, seeking to re-argue factual findings without identifying legal errors.

The court emphasized that the "justice of the case" required an end to the unfounded allegations.

The defendants brought a motion seeking leave to amend their Statement of Defence to plead a jurisdictional bar under the Workplace Safety and Insurance Act, 1997 (WSIA), and an adjournment of the trial.

The proposed amendment argued that the plaintiff's action was barred by WSIA sections 28 and 31, which grant exclusive jurisdiction to the Workplace Safety and Insurance Appeals Tribunal (WSIAT) for workplace injury claims against employers.

The court granted leave to amend the Statement of Defence, finding that while the delay was unfortunate, any prejudice to the plaintiff could be compensated by costs and an adjournment.

The trial was adjourned to allow for the amendment and a determination by WSIAT.

The defendants were ordered to pay the plaintiff partial indemnity costs and an additional amount for trial preparation efforts, totaling $28,578.28.

The plaintiff, Nino Kotorashvili, sued the defendant, Dr. Moo Hyung Lee, for medical negligence following a re-fracture of her clavicle after hardware removal surgery.

The court found Dr. Lee negligent for breaching the standard of care by prematurely removing the hardware without updated imaging and failing to obtain informed consent regarding the increased risk of re-fracture.

The re-fracture led to a malunion and a third reconstructive surgery.

The court awarded the plaintiff $35,000 in general damages for the re-fracture, prolonged recovery, and the need for the third surgery, plus pre-judgment interest at 2%.

The appellants, a family, sued a hospital and medical professionals for medical malpractice after their son suffered a severe brain injury at birth.

The trial judge discharged the jury mid-trial and then dismissed the action.

On appeal, the Court of Appeal for Ontario found that the trial judge failed to provide adequate reasons for discharging the jury, which is a fundamental right.

The reasons were conclusory, did not explain which comments were prejudicial, or why corrective instructions would be insufficient.

The appellate court could not meaningfully review the decision.

Consequently, the appeal was allowed, and a new trial was ordered.

This decision addresses a challenge to the admissibility of an expert witness, Dr. David Gladstone, during a medical malpractice trial.

Counsel for the defendants argued that Dr. Gladstone was not impartial or objective and was in a conflict of interest due to a prior treating relationship with the plaintiff.

The court found that Dr. Gladstone had disclosed the prior relationship to the plaintiffs' counsel, believed it irrelevant to his expert opinion, and was confident in his objectivity.

The court also clarified that treating physicians can act as medical experts, with their duty solely to the adjudicative body, not to advocate for former patients.

The judge qualified Dr. Gladstone as an expert and permitted him to testify, criticizing the defendants' counsel for raising the challenge for the first time at trial as a 'trial by ambush'.

The court addressed a dispute in a medical malpractice jury trial regarding the wording of causation questions and whether the jury should provide reasons for their findings.

The plaintiffs proposed "caused or contributed to" language, while the defendants advocated for "but for" and requested reasons.

The court accepted the plaintiffs' "caused or contributed to" language, finding no compelling reason not to translate the "but for" test into everyday language, and rejected the request for the jury to provide reasons, citing the risk of confusion and violation of jury secrecy.

Two consolidated appeals concerning the proper interpretation of section 23 of the Health Care Consent Act, 1996 regarding "necessary and ancillary treatment." The appellants, both found incapable of consenting to primary psychiatric treatment, challenged both their incapacity findings and the Board's practice of making separate findings of incapacity for ancillary treatments.

The Court of Appeal clarified that once a person is found incapable of consenting to primary treatment, section 23 automatically authorizes ancillary treatment without requiring a separate incapacity finding, even if the person is capable of consenting to the ancillary treatment.

The plaintiffs' medical negligence action against the defendant physician settled for $400,000 in damages prior to trial, and the parties settled liability on the morning of the trial.

The parties could not agree on costs.

The plaintiffs sought over $264,000 in costs and disbursements, arguing the defendant unreasonably delayed settlement.

The court rejected the argument for elevated costs to sanction the defendant, noting the case involved competing expert opinions.

Applying the principle of proportionality, the court reduced the plaintiffs' claimed fees and significantly reduced an expert witness's disbursement, fixing total costs at $125,000 for fees and $45,000 for disbursements.