Dr. Harvey

This medical negligence action involved cross-motions concerning the admissibility of expert evidence.

The plaintiff sought to admit five expert reports, arguing they fell within the scope of the Amended Statement of Claim, including claims for negligent post-operative care.

The defendants sought to declare portions of these reports inadmissible, arguing they concerned new causes of action (endoscopic exploration and orbital wall decompression) previously ruled statute-barred by a prior motion judge.

The court found that the Amended Claim did not plead general post-operative care and that the 'Other Procedures' were distinct surgical events, not post-operative care.

The court ruled that expert opinions on the statute-barred procedures were irrelevant and inadmissible, also applying the doctrine of res judicata as an exclusionary rule.

The plaintiff's motion was dismissed, and the defendants' motion was granted.

The appellant appealed the dismissal of her medical malpractice action against an oculoplastic surgeon regarding cosmetic eyelid surgeries.

She alleged the trial judge erred in his findings on standard of care, informed consent, and the qualification of the respondent's expert witness.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings or his preference for the respondent's expert evidence.

The court also dismissed the appellant's motion to adduce fresh evidence, as it did not meet the Palmer test.