Hilik Y. Elmaleh

This ruling addresses a dispute between the plaintiffs and defendants regarding the wording of causation questions to be put to the jury in a medical negligence trial.

The plaintiffs sought "caused or contributed to" language and no particulars, arguing complexity and potential undermining of the verdict.

The defendants advocated for "but for" language and required particulars, citing clarity and the need for evidentiary foundation.

The court found that "but for" language should be used for causation questions, given the discrete nature of the alleged negligence of each defendant doctor.

Furthermore, the court ruled that the jury must provide particulars of their causation findings to ensure understanding of instructions and proper evidentiary basis, consistent with practices for standard of care particulars.

The appellants, a family, sued a hospital and medical professionals for medical malpractice after their son suffered a severe brain injury at birth.

The trial judge discharged the jury mid-trial and then dismissed the action.

On appeal, the Court of Appeal for Ontario found that the trial judge failed to provide adequate reasons for discharging the jury, which is a fundamental right.

The reasons were conclusory, did not explain which comments were prejudicial, or why corrective instructions would be insufficient.

The appellate court could not meaningfully review the decision.

Consequently, the appeal was allowed, and a new trial was ordered.

The defendants brought a motion for summary judgment to dismiss the plaintiffs' claims arising from the birth of a child with spina bifida.

The defendants argued the mother's wrongful birth claim was statute-barred and the child's wrongful life claim disclosed no cause of action.

The court dismissed the motion regarding the wrongful birth claim, finding a genuine issue for trial regarding whether the limitation period was tolled due to the mother's reliance on the doctor's alleged misrepresentation that the ultrasound was clear.

The court granted the motion to dismiss the wrongful life claim, confirming settled law that a physician does not owe a duty of care to a future child for a lack of informed consent to the mother.

This is an appeal from a Divisional Court decision that upheld a trial judge's refusal to enter judgment in accordance with a jury verdict in a medical malpractice case.

The jury found the defendant physicians negligent and that their negligence caused the plaintiff's severe disabilities.

The trial judge ordered a new trial, finding the jury's answers on causation insufficient.

The Court of Appeal allowed the appeal, holding that the trial judge erred in refusing to enter judgment.

The court emphasized the high standard for setting aside jury verdicts and the presumption that juries understand and apply judicial instructions, even if their answers are conclusory.

The judgment of $14.9 million in damages was reinstated.

This addendum to an appeal decision addresses the issue of costs.

Due to a lack of agreement between the parties regarding the costs incurred below, the Court of Appeal reserved the determination of costs to the trial judge hearing the second trial.

The Court of Appeal for Ontario allowed an appeal in a medical negligence action, ordering a new trial.

The plaintiffs alleged delayed diagnosis of hydrocephalus in their child, leading to brain damage.

The trial jury found no breach of standard of care.

The appellate court found that the defendants' expert witness exceeded his role by opining on the credibility and reliability of the parties, thereby breaching his duty of independence.

The trial judge erred by not specifically instructing the jury to disregard these improper opinions and by failing to exclude them.

Despite the appellants' counsel not objecting at trial, the errors constituted a substantial wrong or miscarriage of justice, tainting the jury's verdict and warranting a new trial.

This decision addresses whether a finding of contributory negligence against a plaintiff mother (Kimberley York) should reduce the global damages awarded to all plaintiffs, including her injured child (Cole Parliament) and husband (John Parliament), or only her personal damages.

The court held that such a reduction would only apply to the mother's personal damages, as the defendants failed to properly advance a counterclaim for contribution and indemnity against her within the applicable limitation period, as required by the Rules of Civil Procedure and the Limitations Act.

The plaintiffs brought a motion to disqualify the defendants' proposed expert medical witness, Dr. Karen Fleming, from testifying on the standard of care.

The court reviewed Dr. Fleming's two reports and her testimony during a voir dire, finding that her opinions were based on improper credibility assessments and fact-finding, rather than objective expert analysis.

Dr. Fleming's reports and cross-examination revealed a lack of impartiality and a preferential treatment of the defendants' evidence while disregarding the plaintiffs' evidence without adequate explanation.

The court concluded that Dr. Fleming lacked the necessary independence and objectivity to provide an impartial opinion, rendering her not a properly qualified expert under the Mohan framework.

Consequently, her evidence was deemed inadmissible, and the plaintiffs' motion to disqualify her was allowed.

The plaintiffs sought to exclude a December 17, 1999 note from Dr. Conley's Clinical Notes and Records, which contained hearsay regarding a past conversation about Cole Parliament's head size.

The plaintiffs argued the note was unreliable hearsay, not a proper business record, and highly prejudicial.

The defendants contended it was a business record and admissible.

The court applied the principled approach to hearsay, finding the note admissible as a business record under section 35 of the Ontario Evidence Act.

The court noted that the availability of all relevant witnesses (record keeper, informant, and parties to the original conversation) at trial would allow for cross-examination, satisfying reliability concerns and mitigating prejudice.

The motion to exclude the evidence was dismissed.

The plaintiffs in a long-standing medical malpractice action sought an adjournment of an 8-week jury trial, scheduled to commence April 15, 2019, due to a recent breakdown in counsel-client relationship and subsequent change of solicitors.

The defendants opposed the adjournment, emphasizing the age of the action, extensive trial preparation, and the significant delay a new trial date would entail.

The court, while expressing reluctance and noting that the change of counsel at the eleventh hour did not constitute an "exceptional circumstance" under the Toronto practice direction, ultimately granted the adjournment on terms.

This decision was influenced by the complexity of the medical negligence case and the involvement of a party under disability, necessitating new counsel sufficient time to review the file and address critical issues like Medicare and Medicaid.

The respondents appealed an order from the Superior Court of Justice directing a new trial on the basis that the jury's answers on causation were fatally flawed.

The moving parties brought a motion to quash the appeal, arguing that the order was interlocutory and therefore only appealable to the Divisional Court with leave.

The Court of Appeal held that an order directing a new trial is interlocutory in nature, as it does not finally determine the substantive rights of the parties but rather requires another trial for that purpose.

The appeal was quashed and transferred to the Divisional Court.

In a medical malpractice action concerning obstetrical negligence resulting in a child's severe brain damage, the jury found the defendant doctors breached the standard of care and caused the injuries.

The defendants brought a motion under Rule 52.08(1) arguing there was no evidence to support the causation finding, or alternatively, that the jury's answers on causation were unresponsive.

The trial judge found there was some evidence to support causation, but held that the jury's answers on causation were fatally flawed because they merely repeated the standard of care answers (as improperly suggested by plaintiffs' counsel) and failed to explain how the negligence caused the brain damage.

As a result, the trial judge refused to enter judgment on the verdict and ordered a new trial.

Following a successful medical malpractice trial resulting in a $5.3 million judgment for the plaintiffs, the court assessed costs.

The plaintiffs had beaten their $4.5 million offer to settle, entitling them to substantial indemnity costs from the date of the offer.

The court considered the complexity of the case, the extensive expert evidence required, and the proportionality of the costs to the recovery, ultimately fixing costs at $2,201,259 inclusive of fees, disbursements, and HST.

Following a trial judgment in a medical malpractice action, the court issued supplementary reasons to address pre-judgment interest and adjustments to future pecuniary losses.

The parties reached an agreement on these issues, excluding costs.

The court issued an order revising the total judgment granted in favour of the plaintiffs to $5,568,393.00, inclusive of pre-judgment interest and adjusted future pecuniary losses.