Frank McLaughlin

The plaintiffs brought a medical malpractice action against three obstetricians and a hospital regarding the birth of the infant plaintiff.

The mother alleged that she did not consent to the use of a vacuum or forceps during delivery, claiming medical battery and lack of informed consent.

She also alleged that the doctors breached the standard of care in their antenatal record keeping, failure to recommend a Caesarean section earlier, and the decision to attempt a vacuum and forceps-assisted delivery.

The court dismissed the action, finding that the mother had provided informed consent to the use of the instruments in the face of an urgent obstetrical situation involving fetal distress.

The court also found that the doctors met the standard of care in all respects and that the plaintiffs failed to prove that the neonatal injuries caused the infant plaintiff's subsequent neurodevelopmental limitations.

The infant plaintiff suffered a severe and permanent brachial plexus injury during birth after encountering shoulder dystocia.

The plaintiffs brought a medical negligence action against the delivering obstetrician, alleging he applied excessive downward traction.

The defendant argued the injury was caused by maternal propulsive forces.

The court found that the defendant breached the standard of care by applying more than gentle downward traction, which caused the injury.

The court awarded $811,564 in total damages, including non-pecuniary damages, future care costs, future loss of income, and Family Law Act damages for the family.

Following a 25-day medical malpractice jury trial, the plaintiffs were awarded damages of $1,918,491.96.

The defendant had made a pre-trial offer to settle the issue of damages for $2,150,000, which the plaintiffs rejected.

The defendant argued for a distributive costs award, seeking costs for the portion of the trial dedicated to damages.

The court held that an offer to settle only damages does not trigger the strict cost consequences of Rule 49.10(2) and declined to make a distributive costs award.

However, applying Rule 49.13 and Rule 57.01, the court reduced the plaintiffs' costs by 30% to reflect their divided success and the unnecessary lengthening of the trial on the damages issue, awarding the plaintiffs $800,000 in partial indemnity costs.

The defendant physician in a medical malpractice action moved to strike the jury notice due to trial delays caused by the COVID-19 pandemic.

The defendant argued that the 11-year delay and the stress of preparing for trial multiple times warranted proceeding by judge alone virtually.

The plaintiff opposed, citing significant physical and technological challenges with participating in a virtual trial due to his catastrophic spinal cord injuries.

The court dismissed the motion, finding the defendant failed to prove justice would be better served by dispensing with the jury, and adopted a 'wait and see' approach given the anticipated resumption of civil jury trials.

The plaintiffs brought a motion to certify a class action against the manufacturers and marketers of the antipsychotic drugs Abilify and Abilify Maintena, alleging negligence, failure to warn, and conspiracy regarding the risk of impulse control disorders.

The defendants opposed certification and brought a motion to stay the proceeding as an abuse of process, citing a parallel authorized class action in Québec.

The court found that the plaintiffs met all the criteria for certification under section 5(1) of the Class Proceedings Act, including establishing a plausible methodology for proving general causation.

The court dismissed the defendants' stay motion, finding that the Ontario action was not an abuse of process despite the last-minute amendments to the Québec claim that mirrored the Ontario pleading.

The parties appeared before the court to advise that the contested issue of carriage had been resolved by consent.

The court approved an agreed-upon schedule for the proceedings leading up to a certification motion and potential jurisdiction motions, including deadlines for the production of medical and gambling records, delivery of materials, cross-examinations, and factums.

The appellants appealed a jury verdict dismissing their medical negligence action arising from delayed diagnosis and treatment of an anastomotic leak following routine bowel surgery, which resulted in septic shock and bilateral below-knee amputations.

The jury found five defendants breached the standard of care but that none of the breaches caused the injuries.

The Court of Appeal addressed the proper causation test in delayed diagnosis cases involving multiple tortfeasors, finding that the trial judge's use of the word "necessary" from Clements in jury questions and instructions was problematic and that the phrase "caused or contributed to" should not have been rejected.

However, the court held that the jury clearly accepted the defence theory that a rare necrotizing infection, not the delay, caused the injuries, and no reformulation of questions or instructions would have changed the verdict.

In a jury trial for medical negligence arising from hospital treatment, the parties disputed the proper wording of causation questions to be put to the jury and whether the jury should provide particulars explaining any finding of causation.

The plaintiffs argued the jury should be asked whether the defendants' breach 'caused or contributed to' the injury, relying on principles recognizing multiple causes in negligence.

The defendants argued the jury must be instructed using the Supreme Court of Canada’s 'but for' causation test articulated in Clements.

The court held the jury questions should follow the 'but for' formulation, finding the 'cause or contribute' wording risked confusion.

The court also ruled that if causation were found, the jury should be required to provide particulars of its reasoning due to the complexity of the medical evidence and multiple defendants.

The plaintiffs brought a medical negligence action against the defendant obstetrician following the birth of a child who suffered a catastrophic brain injury resulting in severe cerebral palsy.

The injury was caused by an occult cord prolapse during delivery.

The plaintiffs alleged the defendant failed to recognize risk factors, failed to obtain informed consent, and negligently proceeded with a vacuum-assisted delivery in the delivery room rather than the operating room.

The court dismissed the action, finding that the defendant met the standard of care in his assessment of risk factors, obtained valid consent, and appropriately exercised his clinical judgment in proceeding with the vacuum in response to a non-reassuring fetal heart rate.

Furthermore, the court found that the cord prolapse and resulting injury would have occurred regardless of the defendant's interventions.