Anna L. Marrison

The plaintiffs sought leave to amend their statement of claim in a medical malpractice action to substitute three specific physicians for 'Jane Doe' defendants, arguing misnomer, or alternatively, special circumstances.

The court found that misnomer did not apply as the 'litigation finger' was not pointing clearly at the proposed defendants, but rather the pleadings were vague and could apply to almost any medical staff member.

However, the court granted leave to add the proposed defendants under the doctrine of special circumstances, leaving the final determination of the limitation defence to the trial judge due to conflicting evidence on the plaintiffs' diligence.

The defendants successfully sought costs after obtaining summary judgment dismissing a medical malpractice claim.

The court, while acknowledging the plaintiffs' difficult experience and self-representation, awarded discounted costs to the defendants, emphasizing the principle of indemnity for the successful party tempered by the expectation of the unsuccessful party.

The appellant physician appealed a decision of the Health Professions Appeal and Review Board (HPARB) confirming the hospital's decisions not to renew her reappointment applications and to revoke her privileges due to a long-standing pattern of communication issues and interpersonal conflict.

The Divisional Court dismissed the appeal, finding that the HPARB did not misapprehend the evidence and appropriately analyzed the criteria for non-renewal and revocation under the hospital's by-laws and the Public Hospitals Act.

The appellant physician appealed a decision of the Health Professions Review and Appeal Board (HPARB) confirming the revocation of her hospital privileges by the respondent hospital.

The revocation was based on a long-standing pattern of unprofessional conduct, inability to collaborate with colleagues, and failure to improve, which jeopardized patient safety.

The Divisional Court dismissed the appeal, finding that the HPARB's factual and credibility findings were firmly grounded in the evidence and that it correctly applied the test under the Public Hospitals Act and hospital by-laws.

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.

The applicant, acting as substitute decision-maker for his incapable elderly father, brought an application for judicial review challenging a hospital's COVID-19 visitor restriction policy and a related memorandum from the Chief Medical Officer of Health.

The applicant argued the restrictions violated his father's rights under sections 7, 12, and 15 of the Charter by preventing in-person visits.

The Divisional Court dismissed the application, finding that neither the hospital's policy nor the CMOH memorandum were subject to judicial review as they did not involve the exercise of a statutory power of decision with a sufficient public character.

Furthermore, the court held that even if reviewable, the policies did not infringe the Charter, as they were based on sound medical and epidemiological evidence rather than discriminatory presumptions, were not arbitrary or overbroad, and did not constitute state-imposed punishment or treatment.

The plaintiffs in a long-standing medical malpractice action sought an adjournment of an 8-week jury trial, scheduled to commence April 15, 2019, due to a recent breakdown in counsel-client relationship and subsequent change of solicitors.

The defendants opposed the adjournment, emphasizing the age of the action, extensive trial preparation, and the significant delay a new trial date would entail.

The court, while expressing reluctance and noting that the change of counsel at the eleventh hour did not constitute an "exceptional circumstance" under the Toronto practice direction, ultimately granted the adjournment on terms.

This decision was influenced by the complexity of the medical negligence case and the involvement of a party under disability, necessitating new counsel sufficient time to review the file and address critical issues like Medicare and Medicaid.

The Plaintiffs in a medical negligence action brought a motion seeking leave to admit an expert's affidavit and discovery transcripts of two family members (one deceased, one unwell) into evidence at trial.

The court dismissed the request to admit the expert's affidavit, finding it did not comply with Rule 53 requirements for expert reports and would unfairly deprive the defence of cross-examination.

However, the court granted leave to admit the discovery transcripts of the family members under Rule 31.11(6), subject to the Plaintiffs immediately quantifying their Family Law Act claims and providing the family doctor's notes for the relevant period to the defence, to ensure fairness given the inability of the family members to testify.

The defendants, Dr. L., Dr. S., and Hospital A, brought motions to strike portions of the plaintiffs' statement of claim, for partial summary judgment, and to bifurcate the trial in a medical malpractice action.

The plaintiffs alleged negligence and breach of fiduciary duty by Dr. L. for treating J.O. despite knowing or ought to have known of her incompetence, and for failing to disclose past medical errors and complaints.

The court partially granted the motion to strike, removing allegations of failing to disclose general information and past medical errors/complaints to the College of Physicians and Surgeons, but allowed claims of negligence and breach of fiduciary duty based on Dr. L.'s knowledge of her own deficiencies to proceed.

The motions for partial summary judgment and bifurcation were dismissed.

The court also ordered J.O. to provide consent for police records related to a Family Law Act claim.

The appellants appealed a jury verdict dismissing their medical negligence action arising from delayed diagnosis and treatment of an anastomotic leak following routine bowel surgery, which resulted in septic shock and bilateral below-knee amputations.

The jury found five defendants breached the standard of care but that none of the breaches caused the injuries.

The Court of Appeal addressed the proper causation test in delayed diagnosis cases involving multiple tortfeasors, finding that the trial judge's use of the word "necessary" from Clements in jury questions and instructions was problematic and that the phrase "caused or contributed to" should not have been rejected.

However, the court held that the jury clearly accepted the defence theory that a rare necrotizing infection, not the delay, caused the injuries, and no reformulation of questions or instructions would have changed the verdict.

The defendants' motion for summary judgment to dismiss a medical malpractice action based on a limitation period was previously dismissed.

The plaintiffs sought costs of the motion in the amount of $20,691.22, while the defendants argued costs should be reserved to the trial judge or fixed at $15,000 in the cause.

The court fixed the plaintiffs' costs at $18,700, inclusive of fees, HST, and disbursements.

Applying Rule 57.03(1) of the Rules of Civil Procedure, the court ordered the costs to be payable by the defendants within 30 days, rejecting the defendants' request to defer the costs to the trial judge.

The defendants brought a motion for summary judgment to dismiss the plaintiffs' medical malpractice action as statute-barred.

The plaintiff, a diabetic, received foot care from the defendant chiropodist and later required a leg amputation due to Charcot foot.

The defendants argued the plaintiff knew or ought to have known of the claim by the date of amputation.

The plaintiff argued the claim was not discovered until receiving a medical expert report linking the amputation to the defendant's substandard care.

The court dismissed the motion, finding a genuine issue requiring a trial regarding when the plaintiff knew or ought to have known the facts necessary to discover the negligence claim.

The Plaintiffs' medical negligence action against the Defendants was dismissed after a jury found breaches of standard of care but no causation.

The Defendants, as successful parties, sought costs.

The court, exercising its discretion under the Courts of Justice Act and Rules of Civil Procedure, rejected the Plaintiffs' arguments for no costs based on "divided success" access to justice concerns, or the Canadian Medical Protective Association covering the physicians' costs.

The court awarded costs on a partial indemnity basis to the Defendant Physicians and the Defendant Hospital, fixing specific amounts.

While the main Plaintiff, Jordan Sacks, was held liable for the bulk of the costs, the Family Law Act claimants (Jordan's wife and parents) were held liable for apportioned, rather than joint and several, amounts to ensure fairness given the derivative nature and comparatively modest value of their claims.

In a jury trial for medical negligence arising from hospital treatment, the parties disputed the proper wording of causation questions to be put to the jury and whether the jury should provide particulars explaining any finding of causation.

The plaintiffs argued the jury should be asked whether the defendants' breach 'caused or contributed to' the injury, relying on principles recognizing multiple causes in negligence.

The defendants argued the jury must be instructed using the Supreme Court of Canada’s 'but for' causation test articulated in Clements.

The court held the jury questions should follow the 'but for' formulation, finding the 'cause or contribute' wording risked confusion.

The court also ruled that if causation were found, the jury should be required to provide particulars of its reasoning due to the complexity of the medical evidence and multiple defendants.

The appellants appealed a summary judgment dismissing their medical malpractice claim.

The motion judge granted summary judgment because the respondents tendered expert reports showing no breach of the standard of care, and the appellants failed to file any contradicting expert evidence.

The Court of Appeal dismissed the appeal, affirming that where an expert's report is not filed in a malpractice claim, the court can infer the party is unable to obtain one, and the claim cannot succeed against uncontradicted expert evidence.

The plaintiffs brought a medical malpractice action following the sudden death of Emilio Spirito at Trillium Health Centre.

The plaintiffs alleged that the defendants' negligence, specifically the failure to insert a nasogastric tube, caused the deceased to aspirate fluids and die.

The court found that the defendant doctors and nurses met the standard of care in their treatment and monitoring of the deceased.

Furthermore, the court accepted expert pathology evidence that the deceased died from bilateral lobar pneumonia acquired from air-borne bacteria, meaning there was no causal connection between the alleged negligence and the death.

The action was dismissed.

Following a medical negligence trial in which the plaintiffs were unsuccessful in establishing a causal connection between breaches of the standard of care and a patient’s death following a caesarean section, the defendant hospital sought costs of $272,000.

The plaintiffs included the deceased’s spouse and minor children represented by a litigation guardian.

Although the plaintiffs had declined a settlement offer and the defendants had succeeded at trial, the court exercised its discretion under s. 131 of the Courts of Justice Act to deny a costs award.

Considering the plaintiffs’ circumstances, the public nature of the defendant institution, and broader access to justice concerns, the court held that imposing the full costs sought would be inequitable.

Following the granting of a summary judgment motion in favour of the defendants in a medical negligence action, the court considered the defendants’ request for costs against the remaining plaintiffs.

The defendants sought modest costs despite incurring substantially higher legal fees and disbursements, largely related to expert reports.

The plaintiffs made no submissions on the costs issue despite having the opportunity to do so.

The court found the defendants’ request reasonable, particularly given conduct by the responding party that had unnecessarily prolonged the proceedings.

Costs of $5,000 were awarded to each of the two defendants seeking costs.

The plaintiffs brought a medical malpractice action following the death of a mother from postpartum hemorrhage and disseminated intravascular coagulation (DIC) hours after a caesarean section.

The plaintiffs alleged that the nurses, anaesthesiologist, and obstetricians breached the standard of care by failing to recognize and treat the bleeding earlier.

The court found that while the anaesthesiologist breached the standard of care by delaying notification to the obstetricians of the patient's deteriorating condition, this delay did not cause the patient's death.

The court concluded that even if the decision to operate had been made earlier, the patient would still have developed DIC and the fatal blockage would not have been prevented.

The action was dismissed without costs.