Four plaintiffs brought a consolidated medical malpractice action against St. Joseph's General Hospital regarding defective Vitek TMJ implants surgically placed by oral surgeons at the hospital in the mid-1980s.
The trial was bifurcated to determine liability.
The court found that the claims of three plaintiffs were statute-barred under the strict two-year limitation period in the Public Hospitals Act, as the discoverability principle did not apply.
For the remaining plaintiff, the court held the hospital was not negligent in credentialing the surgeons, obtaining consent, or failing to recall patients, as those duties rested with the physicians.
However, the hospital breached its duty of care as a purchaser by failing to inquire with Health Canada whether the implants had a required Notice of Compliance.
The court apportioned fault at 5% to the hospital, 50% to the non-party manufacturer (Vitek), 25% to the non-party distributor (Instrumentarium), and 20% to the settling oral surgeons.