Jill S. McCartney

This decision concerns a medical negligence action brought by the family and estate of Kevin John McMullan against several physicians and a hospital, following Mr. McMullan’s sudden death from an aortic dissection.

The plaintiffs alleged that Dr. Naom and Dr. El Jaoudi breached the standard of care in their treatment of Mr. McMullan and that these breaches caused or contributed to his death.

The court found that both physicians met the standard of care in all respects, including the interpretation of diagnostic tests, management of hypertension, and discharge instructions.

The court also found that, even if there had been a breach, the plaintiffs failed to prove causation: the evidence established that Mr. McMullan’s aorta was normal for his age and body size, and that he would not have been referred for surgery or prevented from suffering the fatal dissection.

The action was dismissed in its entirety.

The representative plaintiffs moved to discontinue their Ontario class action regarding allegedly defective surgical staplers, intending to rely instead on an overlapping class action in British Columbia.

The defendants opposed the discontinuance and sought an indefinite adjournment, arguing that discontinuing the Ontario action before the resolution of their stay application in B.C. would prejudice absent class members by restarting the limitation period.

The court agreed that the risk of limitations prejudice to absent class members was too great and adjourned the motion indefinitely.

The court also invoked the Canadian Judicial Protocol for the Management of MultiJurisdictional Class Actions to coordinate with the B.C. court.

Class counsel brought a motion for approval of the final $500,000 tranche of legal fees and additional disbursements following the near-completion of the administration of a $21 million settlement regarding pelvic mesh devices.

The court previously approved the settlement and the majority of the $5.17 million total fee request.

Finding that the aggregate fees represented a multiplier of less than 1.7 on docketed time and remained lower than the retainer agreements, the court approved the fee request.

The plaintiffs brought a motion for court approval to discontinue a proposed products liability class action concerning 'Physiomesh', a surgical mesh manufactured by the defendants.

The discontinuance was sought to implement a settlement scheme for individual claims.

The court found that the discontinuance was not brought for an improper purpose and would not prejudice putative class members, as the limitation period suspension would continue for 90 days after notice.

The court approved the discontinuance, finding it beneficial for settling claimants and in their best interests.

The plaintiffs brought a motion on consent for an order approving the discontinuance of a proposed class action without costs.

The action alleged that the defendants breached a duty to warn about the risks of excessive bleeding associated with the anticoagulant drug Pradaxa.

Following the dismissal of the certification motion and subsequent appeals, the action remained dormant.

The court approved the discontinuance under section 29 of the Class Proceedings Act, 1992, finding no reason to refuse the request and no need to impose terms.

The plaintiffs in a certified class action regarding transvaginal mesh devices brought a motion to approve the Notice of a Settlement Approval Hearing, the Notice Plan, and minor amendments to the 2017 Certification Order.

The parties had entered into a $21.5 million settlement.

The defendants consented to the motion.

The court approved the expansion of the class definition to include individuals implanted with the devices up to the date of the order, finding it fair and necessary.

The court also approved the proposed notices and notice plan, finding they met the statutory criteria under the Class Proceedings Act, 1992.

The representative plaintiffs and class counsel sought approval of a $21 million settlement in two certified class actions concerning allegedly defective transvaginal mesh devices.

They also sought approval of class counsel fees, disbursements, a distribution protocol, and honoraria for the representative plaintiffs.

The court found the settlement, distribution plan, and fee requests to be fair, reasonable, and in the best interests of the class.

The motion was granted, approving the settlement, the distribution protocol, class counsel fees of approximately $4.17 million, and honoraria for the representative plaintiffs.

The plaintiffs sought to certify a class action against the manufacturers of Cook IVC filters, alleging negligent design and failure to warn of risks associated with the medical devices.

The court dismissed the certification motion.

While the plaintiffs satisfied the identifiable class and representative plaintiff criteria, and pleaded a valid cause of action for failure to warn, they failed to plead a valid cause of action for design negligence.

Crucially, the court found no 'some basis in fact' for the existence of any common issues regarding either design defect or duty to warn, as the evidence did not identify a specific design defect or inadequacy in the warnings provided to physicians.

Consequently, the preferable procedure criterion was also not met.

During a medical malpractice trial concerning an ulnar nerve injury sustained during orthopedic surgery, the defendants objected to the plaintiffs' expert orthopedic surgeon testifying on causation and standard of care issues not expressly stated in his written reports.

The court ruled that under Rule 53.03, an expert cannot testify on matters that open up a new field not mentioned in their report, nor can the court be left to infer opinions.

The expert was precluded from offering opinions on causation and the standard of care for the initial consultation, as these were not clearly articulated in his reports.

Following the successful certification of a class action regarding transvaginal mesh devices, the plaintiffs sought costs of $900,000 on a partial indemnity basis.

The certification motion was heard in two phases, with the first phase adjourned to allow the plaintiffs to gather additional evidence.

The court found that the plaintiffs were the successful party and entitled to costs.

However, recognizing that the defendants should not have to pay for the plaintiffs' 'education' from the first phase unless the defendants are ultimately found culpable, the court awarded $425,000 payable forthwith (accounting for a $25,000 deduction for an abandoned motion) and $450,000 payable in any event of the cause.

The plaintiffs, the estate and family members of Sandra Zarubiak, brought a medical negligence action against Dr. John Luce, Nurse Kathy Cull, and the Niagara Health System.

They alleged that Sandra's discharge from the hospital, despite her deconditioned state and fall risk, led to a subsequent fall, lacerations, and a fatal infection.

The court found that neither Dr. Luce nor Nurse Cull breached the standard of care, concluding that Dr. Luce's decision was a matter of professional judgment, and Nurse Cull's actions were meticulous.

Furthermore, the court determined that the plaintiffs failed to establish causation, as the source of the fatal infection could not be definitively linked to the fall or pre-existing wounds, with both theories being equally plausible.

The action was dismissed.

This decision concerns a resumed certification motion for a proposed class action against Boston Scientific Ltd. and Boston Scientific Corporation regarding transvaginal mesh medical devices.

The plaintiffs, Susan and Darin Vester, alleged negligent design and failure to warn.

Following an initial adjournment due to a lack of common issues, new expert evidence was presented demonstrating a "some-basis-in-fact" for common issues related to the degradation of the polypropylene mesh (HGX-030-01) and the inadequacy of warnings in the Directions For Use (DFU).

The court found that the new evidence sufficiently identified a discrete defect common to all devices and a plausible medical theory of harm, satisfying the common issues and preferable procedure criteria.

The motion to certify the class action was granted.

The plaintiff was diagnosed with breast cancer that metastasized to her bones.

She brought a medical malpractice action against her radiologist and general surgeon, alleging their negligence caused a nine-month delay in diagnosis.

The court found both doctors breached their respective standards of care: the radiologist failed to order further imaging for suspicious microcalcifications, and the surgeon failed to properly investigate discordant biopsy results or follow up on the original lump.

The court concluded that but for the delay, the plaintiff's cancer would have been diagnosed at Stage I and cured.

The plaintiff was awarded damages for pain and suffering, income loss, and Family Law Act claims.

The plaintiffs sought certification of a proposed national class action alleging negligent design and failure to warn in relation to transvaginal mesh medical devices used to treat stress urinary incontinence and pelvic organ prolapse.

The court held that the pleadings disclosed viable causes of action and that the proposed class definition satisfied the identifiable class requirement under the Class Proceedings Act, 1992.

However, the plaintiffs failed to establish some-basis-in-fact for common issues, particularly because no specific design defect in the polypropylene mesh or common inadequacy in the warnings across nine different products was identified.

The evidence demonstrated significant variation among the devices, their uses, and potential complications, undermining commonality.

The certification motion was therefore adjourned under s. 5(4) of the Act to allow the plaintiffs an opportunity to amend their materials and provide further evidence supporting common issues.

A medical malpractice action arising from the treatment of a young patient presenting with neurological symptoms at a rural hospital.

The physician failed to recognize the possibility of stroke, lowered the patient’s blood pressure aggressively, and delayed consultation with a tertiary neurology centre.

The court held that the physician breached the standard of care by failing to include stroke in the differential diagnosis, lowering blood pressure despite neurological signs, and delaying transfer for specialist assessment.

Applying the “but for” causation test from Clements v. Clements, the court found that the precipitous blood pressure reduction and delayed administration of heparin promoted clot formation which caused the catastrophic stroke.

The plaintiffs established causation on a balance of probabilities and were awarded damages.

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.

During a medical malpractice trial, the defendants brought a motion under s. 12 of the Ontario Evidence Act seeking leave to call more than three expert witnesses.

The case involved allegations that an emergency room physician negligently failed to recognize stroke symptoms and delayed transfer for specialized care, allegedly resulting in quadriplegia.

The court considered factors relating to duplication, fairness between parties, necessity of additional expert evidence, and litigation cost.

Finding that the issues concerned only standard of care and causation and that three experts were sufficient to address them, the court concluded that allowing additional experts would create unnecessary duplication and disadvantage the plaintiffs.

Leave to call more than three medical experts was therefore refused.

The appellant physician appealed a trial judgment finding them liable for medical malpractice following a colonoscopy procedure.

The trial judge found the physician breached the standard of care by failing to order an urgent CT scan when the plaintiff presented with severe abdominal pain and low haemoglobin, which would have diagnosed an intra-abdominal haemorrhage.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's assessment of the expert evidence on standard of care and causation.