Barbara Legate

A medical malpractice action arising from the failure of three emergency physicians to diagnose previable, prelabour, preterm rupture of membranes (pPPROM) at 17 weeks gestation and to refer the plaintiff to an obstetrician.

The plaintiff presented to three different emergency departments over four days with a "gush of fluid" and other symptoms consistent with ruptured membranes.

All three physicians diagnosed threatened miscarriage or second trimester bleeding instead.

The failure to diagnose and refer resulted in a delay of approximately one day before the plaintiff reached a tertiary hospital.

During that delay, the plaintiff developed septic shock, leading to amputation of her left leg below the knee, partial amputation of her right foot, kidney failure requiring transplant, stroke, compromised right arm function, and seizures.

The trial judge found that all three defendants breached the standard of care by failing to diagnose the rupture of membranes and failing to immediately refer to an obstetrician.

However, only the first defendant (Dr. Cavanagh) was found liable for damages, as the evidence established that if the plaintiff had been referred on May 4, she would have been seen by an obstetrician, counselled regarding the grave risks, and would have elected to terminate the pregnancy.

Antibiotics and termination by May 5 would have prevented the septic shock and resulting injuries.

The subsequent physicians' breaches occurred too late to prevent the harm.

The court considered a motion by the defendants for production of video and audio recordings from the plaintiffs’ in-home camera system in a medical malpractice action.

The court found that while such recordings may be relevant to the issues in dispute, the plaintiffs’ privacy interests in their home are paramount and outweigh the need for production.

The motion for production was dismissed.

This appeal addresses the application of the open court principle to court-approved settlements involving minors or persons under disability, as required by Rule 7.08 of the Rules of Civil Procedure.

The appellants sought sealing orders for motion records related to these settlements, arguing that such motions, heard in writing, are not subject to the open court principle, or that the court's parens patriae jurisdiction, privacy interests, and solicitor-client privilege justify sealing.

The Court of Appeal dismissed the appeals, affirming that the open court principle applies to written proceedings and that neither parens patriae nor solicitor-client privilege provides a freestanding basis for sealing orders.

The court found that the appellants did not meet the Sherman test for a sealing order, as the privacy interests were not at serious risk of undermining dignity, and the protection of minors/disabled persons and solicitor-client privilege were not seriously jeopardized by public access.

The appellants sought to appeal a Superior Court order refusing a sealing order, made in the context of a disability settlement approval.

The preliminary issue for the Court of Appeal was to determine if the order refusing the sealing order was a final or interlocutory order for jurisdictional purposes.

The Court found that the order, along with other concurrent orders dismissing claims, constituted a final disposition of the proceeding, thus making it a final order properly appealable to the Court of Appeal.

The plaintiffs brought a motion for court approval of a $14,000,000 settlement in a medical negligence action involving a minor who suffered catastrophic brain damage.

The court approved the settlement, the allocation of damages, and the proposed contingency fees for plaintiffs' counsel, finding them fair and reasonable given the significant risks and complexity of the litigation.

However, the court dismissed the plaintiffs' request for a sealing order, holding that it was contrary to the open court principle and that no compelling interest justified sealing the materials.

The plaintiffs brought a motion to approve an $8.5 million settlement for a plaintiff who suffered a catastrophic brain injury in a motor vehicle accident.

The plaintiffs also sought a sealing order over the motion materials and approval of a contingency fee agreement.

The court denied the sealing order, finding no serious risk to an important public interest under the Sherman Estate test.

The court approved the settlement amount as reasonable and in the best interests of the plaintiff.

However, the court found the proposed legal fees of over $1.8 million to be unreasonable given the minimal risk involved, and reduced the approved fees to $1,431,500.

The plaintiffs brought a motion to remove the defendant's counsel, Zuber & Company LLP, alleging inappropriate direct communication with the plaintiff's treating doctors and improper requests for medical files without consent.

The court found that defence counsel's letter accompanying a summons to witness inappropriately sought production of medical files directly from the treating doctors, breaching confidentiality protocols established in Burgess v. Wu.

While the conduct was deemed inappropriate, the court, applying the high threshold for removal of counsel, determined that removal was not necessary in the interests of justice, especially since no new confidential information was disclosed.

However, due to the inappropriate conduct, the plaintiffs were awarded costs of the motion on a partial indemnity basis.

Appeal from a trial judgment finding that a nurse and hospital were liable for negligence in the care of a newborn who developed kernicterus due to untreated hyperbilirubinemia.

The trial judge found the nurse breached the standard of care by failing to report jaundice to the resident physician and that but for this negligence, phototherapy would have been commenced earlier, preventing the development of kernicterus.

The appellants challenged the causation findings.

The Court of Appeal upheld the trial judgment, finding that the trial judge properly inferred causation based on expert evidence and the factual progression of the infant's condition, and that the appellants could not escape liability by pointing to hypothetical negligence of other physicians.

The plaintiffs brought a medical malpractice action against the defendants after their newborn son developed kernicterus and suffered severe brain damage due to untreated hyperbilirubinemia.

The action against the physicians was settled, and the trial proceeded against the hospital and the nurse who cared for the infant overnight.

The court found that the nurse breached the standard of care by failing to report her observation of the infant's jaundice to a physician.

Applying a robust and pragmatic approach to causation, the court concluded that but for the nurse's negligence, a physician would have ordered a bilirubin test and initiated phototherapy in time to prevent the infant's injuries.

The hospital was held vicariously liable.

During a medical malpractice trial involving a newborn who developed kernicterus from untreated jaundice, the plaintiffs sought to qualify a registered nurse as an expert in perinatal nursing.

The defendants objected, arguing she lacked specific recent experience in tertiary hospital nurseries and was a 'roaming expert.' The court applied the Mohan and White Burgess frameworks, finding the proposed expert possessed the requisite specialized knowledge and experience in newborn care and jaundice assessment.

The court admitted the expert evidence, concluding its probative value outweighed any potential prejudice.

The plaintiffs sought court approval for the settlement of a tort action and an attendant care action on behalf of a minor injured in a motor vehicle accident, as well as approval of the associated contingency fee agreements.

The court approved the settlements and found the contingency fee agreement to be fair.

The court approved the requested fee for the tort action, finding it reasonable given the complexity and risk involved.

However, the court found the requested one-third fee for the attendant care action to be unreasonable due to the lack of complexity and risk, and reduced it to twenty percent of the recovery.

In a medical negligence action, the court addressed how the trial should proceed where liability was to be determined by a jury but a limitations defence invoking the doctrine of special circumstances was to be decided by the judge alone.

The defendants argued that the jury must hear all evidence or that the jury notice should be struck, asserting that the evidence relating to liability and the limitation issue was intertwined.

The plaintiffs proposed limiting the jury’s exposure to evidence related to liability and having the limitation issue addressed separately.

The court held that under s. 108(3) of the Courts of Justice Act it could direct that certain issues of fact be tried without a jury.

The trial was ordered to proceed in two phases: a jury phase determining liability followed by a judge-alone phase addressing the limitation issue and related evidence.

During the early stage of a medical negligence jury trial, the defendants brought an oral motion to strike the jury notice and discharge the jury.

The motion arose after the plaintiffs proposed that evidence relating to liability be heard by the jury, while evidence relating to a limitation defence and the doctrine of special circumstances be heard only by the judge.

The court considered whether such compartmentalization of evidence would make the trial unworkable or compromise fairness.

Emphasizing the importance of the substantive right to a jury trial and the substantial onus required to strike a jury notice, the court declined to discharge the jury at that stage.

The judge adopted a “wait and see” approach, permitting the jury to be excluded for witnesses whose evidence related solely to the limitations issue while reserving the decision regarding witnesses whose evidence might overlap both issues.