Dena Varah

During a medical negligence jury trial involving the management of a twin pregnancy, the defendant obstetrician requested a jury instruction permitting an adverse inference against the plaintiffs for failing to call a treating physician from McMaster Hospital.

The court declined to give the instruction, applying the principle from Lambert v. Quinn that an adverse inference should not be drawn if the witness is equally available to both sides.

The court found the witness was compellable by the defendant and not peculiarly within the plaintiffs' power to produce.

The plaintiff sued two doctors for medical malpractice, alleging that a failure to notify her of a referral appointment led to prolonged casting of her fractured fingers and a poorer outcome.

The court found that the referring doctor's office had properly notified the plaintiff of the appointment, which she failed to attend.

Furthermore, the court accepted expert evidence that the prolonged casting met the standard of care given the severity of the fractures, and that any delay in mobilization did not cause the plaintiff's permanent impairment.

The action was dismissed.

Following a successful medical negligence trial, the plaintiffs sought costs after achieving complete success on liability and damages of $190,000.

The plaintiffs had made a Rule 49 offer of $150,000 inclusive of prejudgment interest prior to trial and argued that the judgment exceeded the offer by 31%, entitling them to substantial indemnity costs from the offer date.

The defendant argued the claimed costs were disproportionate to the damages and that agreeing to damages prior to trial prevented a determination that the offer had been beaten.

The court found the plaintiffs had repeatedly attempted settlement and that the defendant displayed intransigence in proceeding to trial despite the standing offer.

Applying the principles of fairness, reasonableness, and the reasonable expectations of the parties, the court awarded the plaintiffs their full claimed costs and disbursements.

Insurers disputed responsibility for satisfying a tort judgment arising from a fatal apartment fire.

One insurer had paid the balance of the judgment after the other insurer exhausted its primary policy limits and refused to contribute further pending resolution of a priority dispute.

The court held that liability of the building owner and property manager—treated as a single defendant in the underlying tort action—should be apportioned equally between them for indemnity purposes.

Applying principles analogous to Aetna Insurance Co. v. Canadian Surety Co. and restitutionary doctrines, the court concluded the paying insurer had overpaid and was entitled to reimbursement.

Judgment was granted requiring the responding insurer to reimburse the excess amount.

The plaintiffs brought a medical malpractice action alleging that two obstetrician-gynecologists breached the standard of care during a laparoscopic assisted vaginal hysterectomy, resulting in the transection of the plaintiff’s ureter.

The court considered expert medical evidence regarding the standard of care, the surgical technique required to protect the ureter, and whether circumstantial evidence could support an inference of negligence.

The court held that ureteric injury can occur even when surgeons exercise appropriate care and that the evidence did not establish that the surgeons deviated from accepted surgical practice.

The court accepted the defence explanation that the injury resulted from aberrant anatomy and that the procedure was performed with appropriate supervision and technique.

The plaintiffs failed to prove negligence on a balance of probabilities.