Dr. Tanzer

The appellant orthopedic surgeon appealed a trial judgment finding him liable for medical malpractice after the respondent developed compartment syndrome following the application of a full circumferential cast.

The trial judge had strongly criticized the appellant's counsel for reviewing and discussing draft reports with their expert witnesses, ruling that such practices were improper under the 2010 amendments to Rule 53.03.

The Court of Appeal held that the trial judge erred in law, confirming that consultation between counsel and expert witnesses is essential and protected by litigation privilege absent a factual foundation of improper influence.

The Court also found the trial judge erred by using expert reports not in evidence to contradict viva voce testimony.

However, the Court concluded these errors did not cause a substantial wrong or miscarriage of justice, as the respondent's expert evidence was overwhelmingly stronger.

The appeal was dismissed.

The applicant was injured in a motor vehicle accident and received caregiver benefits.

The insurer terminated these benefits and made a loss of earning capacity (LEC) offer of zero.

The applicant claimed a higher LEC benefit, transportation expenses, housekeeping expenses, and a special award.

The arbitrator found that the applicant was not entitled to a LEC offer because she did not have the functional capacity to earn income at the time of the accident due to severe pre-existing psychiatric problems.

The arbitrator awarded the claimed transportation and housekeeping expenses, but denied the special award.