Dr. Radomski

The applicant filed a Request for an Order During Proceedings to exclude the respondent's expert medical report, arguing its admission would be an abuse of process due to delay and re-litigation.

The respondent filed a cross-request for an order requiring the parties' medical experts to meet with a facilitator to produce a joint report (a 'hot tub').

The Tribunal dismissed the applicant's request, finding no delay, no prior legal determination of the applicant's medical needs, and that the expert evidence was relevant to the discrimination claim.

The Tribunal also dismissed the respondent's request, concluding that a facilitated meeting would be an inefficient use of resources given the fundamental disagreement between the experts.

In a medical negligence appeal arising from a hysterectomy that resulted in ureter injury, the Court of Appeal held that the trial judge erred in law in treating an alleged failure to disclose surgical risks as battery rather than informed consent governed by negligence principles.

Applying the informed consent framework from Reibl v. Hughes, the court found the reasons addressed only part of the subjective inquiry and failed entirely to consider the required objective test.

The court also held that the finding of negligent delayed diagnosis was unsupported because there was no evidence that the CT scan contemplated on July 7 would have revealed the ureter injury or that earlier diagnosis would have permitted immediate repair.

The appeal was allowed, a new trial ordered, and appeal costs fixed at $20,000.

The plaintiff sued the defendant general surgeon for medical malpractice following a laparoscopy assisted vaginal hysterectomy during which her left ureter was transected.

The court found that while the defendant was qualified to perform the surgery and did not breach the standard of care in its execution, he was liable for battery as he failed to obtain informed consent regarding the specific risk of ureter damage.

Furthermore, the defendant breached the standard of care by negligently delaying the diagnosis of the complication, failing to order a CT scan despite clear symptoms and recommendations from colleagues.

The plaintiff was awarded damages for pain and suffering, past and future income loss, and OHIP's subrogated claim.