Lee Lenkinski

The applicant sought judicial review of an interlocutory order made at a Small Claims Court settlement conference in a medical negligence action.

The order required the applicant to produce expert reports and directed third-party hospitals and doctors to produce the applicant's medical records.

The Divisional Court held that the Small Claims Court judge had jurisdiction to order the production of expert reports under the Rules of the Small Claims Court.

However, the court concluded that the Small Claims Court lacks jurisdiction to order third-party production of documents.

The application was allowed in part, and the third-party production order was set aside.

The defendants, Dr. Hans Dietrich Strauss and The Credit Valley Hospital, brought motions for summary judgment in a medical malpractice case concerning the death of Paul Delicata.

The plaintiffs alleged negligence in the care of the deceased.

The court found the plaintiffs' expert evidence inadmissible due to procedural non-compliance (not attached to an expert's affidavit, non-compliance with Rule 53.03 requirements).

Even if admissible, the expert reports were deficient and contradicted by hospital records.

The court accepted the defendants' expert evidence, concluding there was no genuine issue requiring a trial regarding the standard of care or causation.

The motions for summary judgment were granted, and the action was dismissed against both defendants.

The defendants brought a motion for summary judgment dismissing a medical malpractice action on the basis that the plaintiff failed to produce independent expert medical evidence establishing breach of the applicable standard of care.

The self‑represented plaintiff alleged negligent wrist surgery and relied primarily on the poor surgical outcome and a later procedure removing a metal plate.

The court held that expert evidence is generally required to establish medical negligence where the alleged breach is not obvious to a layperson, and the plaintiff had failed to provide such evidence despite prior directions.

The malpractice claim was therefore dismissed.

However, the court found that the defendants had not clearly raised the separate pleaded allegation of lack of informed consent on the motion and adjourned that aspect to permit the plaintiff to file admissible evidence.

The respondent physician commenced an action for loss of income after his hospital privileges were temporarily restricted following an incident in the operating room.

The appellant hospital and doctors brought a motion for summary judgment, arguing the court lacked jurisdiction because the respondent had not first proceeded to a hearing before the Health Professions Appeal and Review Board (HPARB) under the Public Hospitals Act.

The motion judge dismissed the jurisdictional challenge.

The Court of Appeal upheld the decision, finding that the respondent had followed through with the hospital's internal dispute resolution process, which concluded with his return to full practice, and therefore he was not required to seek a hearing before the HPARB before commencing his civil action.

The plaintiffs brought a medical malpractice action against several physicians and a hospital following the death of their newborn son.

The infant died from complications related to a rare congenital condition, anal stenosis, which was not diagnosed prior to his death.

The court found that the defendant physicians met the standard of care expected of general practitioners, as the condition was not externally visible and the infant did not present with symptoms warranting an urgent referral during their examinations.

The action was dismissed.

On a summary judgment motion in a hospital privileges dispute, the defendants argued that the tort claims were statute barred and, alternatively, had to be stayed pending review by the statutory appeal tribunal under the Public Hospitals Act.

The court held that the claims against two individual physicians were out of time because the alleged conspiracy was discovered in 2008 and there was no evidence supporting continuation of the impugned conduct within the limitation period.

However, the court held the claims against the hospital defendants were not barred because it was not legally appropriate to commence a civil damages action until the statutory hospital process had run its course, and in any event the pleaded conduct could constitute a continuing cause of action.

The court further held no stay was required because no decision cancelling, suspending, or substantially altering privileges had been made that could ground an appeal to HPARB.

The defendant physicians and hospitals brought a motion to dismiss the plaintiffs' medical negligence action for delay under Rule 24.01(1).

The action, commenced in 2001 following the death of the plaintiffs' family member, had proceeded at a glacial pace primarily due to the plaintiffs' difficulties in obtaining expert medical reports.

The court dismissed the motion, finding that while the delay was lengthy and the plaintiffs were wholly responsible, it was not intentional or contumelious.

Furthermore, the presumption of prejudice was rebutted as the necessary medical records were preserved and the case would largely rely on those records and expert opinions rather than witness memory.

The appellant appealed the dismissal of an application for interim relief regarding end-of-life decisions for a patient.

The appellant sought to suspend a no-CPR order, arguing that consent was required to withdraw treatment.

The Court of Appeal dismissed the appeal, finding that the existing treatment plan gave the physician discretion regarding CPR components, and the contested order was not a withdrawal of treatment but a refusal to impose treatment that offered no medical benefit and would only inflict harm.