Kimberly N. Knight

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 court considered costs following a jury trial where the plaintiff was awarded damages and prejudgment interest.

The defendants argued they were the successful parties and sought costs under Rule 49.10, claiming their offer to settle (inclusive of an OHIP subrogated claim) was more favourable than the judgment.

The court found the defendants' offer uncertain regarding the OHIP claim, thus not triggering Rule 49.10.

While the plaintiff was the successful party in proving negligence and damages, there was divided success as the defendants prevailed on a major causation issue.

Considering the plaintiff's unreasonable settlement expectations and the divided success, the court ordered each party to bear their own costs.

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.

The appellant appealed the dismissal of her negligence claim based on lack of informed consent following a laparoscopically assisted vaginal hysterectomy performed by the respondent surgeon, during which the appellant's left ureter was transected.

The respondent cross-appealed the trial judge's finding of negligence in post-operative care.

The Court of Appeal dismissed the appeal on informed consent, finding the trial judge properly applied the modified objective test and reasonably concluded that a reasonable person in the appellant's circumstances would have proceeded with surgery despite the risks.

The Court allowed the cross-appeal, finding the trial judge's conclusion that the respondent breached the standard of care in post-operative management was not supported by the expert evidence, as the experts acknowledged that declining to order a CT scan on July 7, 2008 was a reasonable decision within the standard of care.

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.

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.

In a supplemental endorsement following a trial decision where the plaintiff was awarded $35,000 for delayed diagnosis but failed on claims of informed consent and surgical negligence, the plaintiff's counsel requested an assessment of damages had all claims succeeded.

The court assessed the hypothetical damages at $100,000 for pain and suffering, $100,000 for past loss of income, and $125,000 for future loss of income, plus the Ministry of Health subrogated claim and prejudgment interest.

Following a medical malpractice trial where the plaintiff was awarded $35,000 in damages for delayed diagnosis, the court determined the quantum of costs.

The parties agreed the plaintiff was entitled to partial indemnity costs for both the first and second trials.

The court noted the high cost of expert opinion evidence but declined to penalize the plaintiff for these expenses, particularly given the defendant's poor recordkeeping which complicated the case.

Costs were fixed at $210,000.