Hilik Y. Elmaliah

The plaintiffs brought a medical negligence action against several physicians, nurses, and a hospital, alleging that their negligence during the plaintiff mother's labour and delivery caused the infant plaintiff to suffer a severe hypoxic-ischemic brain injury resulting in cerebral palsy.

The plaintiffs alleged that an artificial rupture of membranes was negligently performed when the fetal head was high, causing a cord prolapse.

The court found that the defendant physicians and nurses met the standard of care, with the exception of one resident physician's failure to document the events, which was not causative.

The court also concluded that the plaintiffs failed to prove factual causation, as the clinical evidence at birth was inconsistent with the infant being completely deprived of oxygen for the 18 minutes following the cord prolapse.

The action was dismissed.

During a medical malpractice trial, the defendants moved to strike the jury following the plaintiff's closing address.

The court found that plaintiff's counsel crossed the line many times, making numerous misstatements that rendered correction by an appropriate charge impossible.

Concluding that the plaintiff's closing address undermined the fairness of the trial process, the court discharged the jury and determined it would decide the issues of liability and damages itself.

The minor plaintiff suffered a severe hypoxic-ischemic brain injury at birth due to the admitted negligence of the defendant hospital's nurses in artificially rupturing the membranes.

The defendant conceded the breach of the standard of care and that it caused the plaintiff's ataxic hypotonic cerebral palsy, but argued her cognitive and behavioural issues were caused by genetically inherited ADHD.

The court rejected the genetic ADHD theory, finding the birth injury was the sole cause of all the plaintiff's physical, cognitive, and behavioural deficits.

The court awarded over $5.2 million in damages, including $250,000 for general damages, $1.88 million for future loss of income, and extensive future care costs for therapies, supported independent living, and home modifications.

This costs endorsement followed two motions heard on August 29, 2016.

The defendant solicitors were successful in their motion for disclosure of a litigation file and in opposing the plaintiffs' cross-motion to strike a limitation period defence.

The court awarded partial indemnity costs to the defendant solicitors for both motions, totaling $12,607 for their motion and $2,700.12 plus HST for the plaintiffs' cross-motion.

The decision included deductions and offsets for costs related to the cross-examination of an affiant, as per Rule 39.02(4).

The plaintiffs brought an action for solicitor negligence against their former lawyers.

Two motions were heard: the defendants' motion for a further and better affidavit of documents, and the plaintiffs' cross-motion to strike paragraphs from the statement of defence pleading a limitation period defence.

The court dismissed the plaintiffs' motion to strike, finding the limitation defence was not plain and obvious to fail.

The court granted the defendants' motion for disclosure, ordering the plaintiffs to produce the complete litigation file from their subsequent lawyers, subject to privilege claims for non-parties.

In a medical negligence action arising from an infant’s diagnosis and treatment of meningococcal meningitis, the court was asked to determine whether correspondence between counsel created a binding settlement dismissing the claim against a hospital and several nurses without costs.

The plaintiffs argued the settlement was conditional on undertakings from co-defendants not to allege negligence against the hospital parties.

The court held that the October 12, 2012 letter was implicitly contingent on that condition precedent but found that the co-defendants’ later correspondence satisfied the required undertaking.

Accordingly, a binding settlement had been reached between the plaintiffs and the hospital defendants.

Because one plaintiff was a minor, the settlement remained subject to court approval under Rule 7.08 of the Rules of Civil Procedure.

The appellant hospital appealed a jury verdict finding it liable for medical malpractice resulting in an infant's permanent brain injury (cerebral palsy) due to oxygen deprivation during birth.

The jury found the attending nurse breached the standard of care by failing to use electronic foetal monitoring and failing to properly perform intermittent auscultation.

The Court of Appeal dismissed the appeal, holding that there was sufficient expert evidence to support the jury's findings on both the breach of the standard of care and causation, and that the verdict was not plainly unreasonable.

Following a jury verdict in a medical negligence action, the court had issued written reasons on costs addressing the plaintiffs’ bill of costs and disbursements.

After the release of those reasons, counsel for the plaintiffs sent correspondence directly to the court seeking a further attendance and advancing additional arguments concerning expert disbursements that had been disallowed for lack of supporting information.

The court held that the correspondence constituted improper ex parte communication and an attempt to re‑argue the costs decision after final reasons had been issued.

The judge emphasized that the burden lies on the party claiming disbursements to demonstrate that they are reasonable and necessary and criticized counsel’s failure to provide sufficient supporting detail in the original materials.

The court refused to consider the contents of the letter and reaffirmed that the earlier costs decision was final.

The appellants appealed the dismissal of their medical malpractice action against a hospital, nurses, and doctors following the birth of a child who suffered severe brain damage due to oxygen deprivation prior to an emergency Caesarean section.

The trial judge dismissed the action, finding that while there were shortfalls in care, the cause of the oxygen deprivation was unknown and therefore not caused by the defendants' negligence.

The Court of Appeal allowed the appeal and ordered a new trial on liability, holding that the trial judge erred in law by deciding the issue of factual causation before determining whether the standard of care was breached, and that the trial judge's reasons were insufficient to explain why the plaintiffs' theory of liability was rejected.

The appellants appealed the dismissal of their medical malpractice action arising from the birth of a child who suffered severe brain damage due to oxygen deprivation during a breech delivery.

The appellants argued the trial judge erred by failing to make an explicit finding on causation, misapprehending expert evidence regarding fetal monitoring, and failing to apply the 'Breech Plus Rule' for the standard of care.

The Court of Appeal dismissed the appeal, holding that the failure to explicitly determine causation did not affect the trial judge's conclusion that the obstetrician met the standard of care.

The court found the trial judge's factual findings regarding the obstetrician's decisions and the rejection of an absolute rule for breech deliveries were reasonable and supported by the evidence.