D. Steeves

Following a 41-day trial where the plaintiffs' medical malpractice claims regarding TMJ implants were dismissed as statute-barred, the successful defendant hospital sought costs.

The defendant sought partial indemnity costs to the date of its offers to settle and substantial indemnity costs thereafter.

The court declined to apply Rule 49.10 to award substantial indemnity costs, finding no egregious behaviour by the plaintiffs deserving of sanction.

The court awarded the defendant partial indemnity costs for the entirety of the action, totalling $540,604.09 across the three actions.

Four plaintiffs brought a consolidated medical malpractice action against St. Joseph's General Hospital regarding defective Vitek TMJ implants surgically placed by oral surgeons at the hospital in the mid-1980s.

The trial was bifurcated to determine liability.

The court found that the claims of three plaintiffs were statute-barred under the strict two-year limitation period in the Public Hospitals Act, as the discoverability principle did not apply.

For the remaining plaintiff, the court held the hospital was not negligent in credentialing the surgeons, obtaining consent, or failing to recall patients, as those duties rested with the physicians.

However, the hospital breached its duty of care as a purchaser by failing to inquire with Health Canada whether the implants had a required Notice of Compliance.

The court apportioned fault at 5% to the hospital, 50% to the non-party manufacturer (Vitek), 25% to the non-party distributor (Instrumentarium), and 20% to the settling oral surgeons.

During a bifurcated trial on liability regarding TMJ implant surgeries, three mid-trial motions were brought concerning the calling of witnesses.

The defendant's motion to call Dr. Wyant was granted on consent.

The plaintiffs moved to reopen their case to call a former hospital records director regarding a spoliation claim, and to call the former chief of staff as an adverse witness.

The court allowed the plaintiffs to reopen their case to call the records director, finding no prejudice to the defendant.

The court also put the defendant to its election under Rule 53.07(1) regarding the former chief of staff, allowing the plaintiffs to call him if the defendant chose not to.

In a complex medical malpractice trial, the defendant hospital brought a mid-trial motion seeking leave under Rule 31.11(6) to introduce discovery transcripts of a deceased doctor from other actions.

The plaintiffs opposed the motion, arguing they did not have the transcripts when prior Pierringer orders were made and would be irreparably prejudiced because their experts had not reviewed them.

The court denied the motion, finding that the plaintiffs did not have the transcripts prior to trial and that admitting them now would cause irreparable prejudice that could not be compensated by costs or an adjournment.