Erin Page

The plaintiff, who had pre-existing disabilities including hydrocephalus and kyphoscoliosis, suffered paraparesis after the defendant radiologists punctured his heart during a filter removal procedure.

Liability was admitted, and the trial proceeded as an assessment of damages.

The defendants argued the 'crumbling skull' doctrine applied, suggesting the plaintiff would have become wheelchair-bound regardless of their negligence.

The court rejected this argument, finding no cogent evidence to support it.

The court awarded substantial damages, including $250,000 in general damages for the plaintiff, $90,000 each to his parents for loss of care, guidance, and companionship, over $1.5 million for past attendant care, and over $5.7 million for future care costs, subject to a 15% negative contingency.

The plaintiffs brought a motion during a damages trial to exclude the evidence of the defendants' expert physiatrist, Dr. Anthony Burns.

The plaintiffs argued the expert's evidence was unreliable, biased, and failed to meet the requirements of the Rules of Civil Procedure and the White Burgess test.

The court found that the expert relied heavily on a chronology prepared by defence counsel rather than source documents, failed to review the complete medical file, and altered his opinion without proper notice.

The court concluded the expert failed in his duty to provide fair, objective, and non-partisan evidence, and excluded his testimony in its entirety.

The plaintiff sought costs of $28,587.29 on a partial indemnity scale following a motion regarding a defence medical examination where success was divided but the plaintiff achieved greater success.

The defendants argued that no costs should be awarded or that they should follow the event, contending the hours claimed were excessive for a two-hour motion.

The court agreed the hours claimed were excessive and fixed costs at $6,500 payable by the defendants to the plaintiff.

The defendants brought a motion to compel the plaintiff to attend a defence medical examination shortly before a scheduled medical negligence trial.

The plaintiff opposed and brought a cross-motion to strike portions of the defendants' motion record, alleging a breach of settlement privilege.

The court found that the defendants did not require leave under Rule 48.04 to bring the motion, as they had not consented to the action being placed on a trial list.

However, the court dismissed the motion for a medical examination, finding it would prejudice the plaintiff given the impending trial date.

The cross-motion was also dismissed, as the impugned communications did not contain offers or compromises protected by settlement privilege.