Andrea H. Plumb

Medical negligence trial arising from an emergency department assessment of a young adult who was discharged with a viral illness diagnosis, returned the next day in respiratory distress, and died from bacterial pneumonia complications.

The plaintiffs alleged the emergency physicians breached the standard of care by failing to investigate pneumonia with chest X-ray and bloodwork and that earlier diagnosis would have prevented death.

The court held the patient’s presentation on the first attendance was consistent with viral illness, did not objectively indicate pneumonia, and did not require those investigations.

Apart from a technical charting omission regarding the respiratory examination, no breach was established, and the plaintiffs failed to prove on a balance of probabilities that earlier testing or treatment would have changed the outcome.

The appellants appealed a summary judgment dismissing their medical malpractice action as statute-barred.

The Court of Appeal affirmed the motion judge's finding that the claim was discoverable no later than February 6, 2014, when the family met with a medical malpractice lawyer, and therefore the action, issued on April 11, 2016, was out of time.

The court rejected the argument that expert reports were necessary for discoverability, emphasizing that a claim is discovered when a plaintiff has knowledge of material facts for a plausible inference of liability, not necessarily when the merits are confirmed by expert opinion.

Following the dismissal of the plaintiffs' medical malpractice action on a summary judgment motion due to the expiry of the limitation period, the successful defendant sought costs of $117,413.06.

The plaintiffs did not dispute the presumptive entitlement to costs but argued for a reduction.

The court found the claimed 388 hours of lawyer time excessive, noting the action did not advance to trial preparation and the limitation issue was not novel.

Exercising its discretion under section 131 of the Courts of Justice Act, the court reduced the fees to ensure proportionality, fixing the total costs payable by the plaintiffs at $72,375.25 inclusive of disbursements and HST.

The defendant in a medical malpractice action brought a motion to compel the plaintiffs to re-attend examinations for discovery to answer questions they previously refused.

The questions related to when the deceased and the plaintiffs first retained counsel and requested medical records, which the defendant argued was relevant to their limitation period defence.

The court granted the motion, finding that facts regarding the date a cause of action arises and when counsel was retained are relevant to discoverability and are not protected by solicitor-client privilege.

The plaintiffs were ordered to re-attend at their own expense.

The plaintiffs (Moles) and defendant (Manwell) brought cross-motions regarding the admissibility and number of expert witnesses in a medical negligence case.

The Moles sought to restrict Manwell to one expert, while Manwell sought to preclude the Moles' expert (Schatzker) from testifying on a novel surgical technique or, alternatively, to allow all three of his experts to testify if Schatzker's evidence was admitted.

The court found Schatzker's novel evidence on the modified surgical technique to have sufficient threshold reliability for admission.

Consequently, the Moles' motion to restrict Manwell's experts was dismissed, and Manwell was permitted to call all three of his proposed expert witnesses.

The appellants appealed a trial judgment, arguing the trial judge erred in his findings of fact.

The Court of Appeal dismissed the appeal, holding that the trial judge's findings were amply supported by the evidence and there was no palpable and overriding error.

As a result, the court did not need to address the submissions on damages.

No costs were sought by the respondent.