Luke Kilroy

The plaintiffs in a medical negligence action brought a motion for leave to bring a motion after setting the action down for trial, and for an order compelling the defendant physician to produce his response letter to the College of Physicians and Surgeons of Ontario.

The court found that leave was required under Rule 48.04(1) and declined to grant it, as the plaintiffs had known about the letter for nearly a decade and offered no plausible explanation for the delay.

Even if leave had been granted, the court held the CPSO response letter was inadmissible in civil proceedings under s. 36(3) of the Regulated Health Professions Act, which constitutes an absolute bar to use of documents prepared for College proceedings.

A medical malpractice action arising from the failure of three emergency physicians to diagnose previable, prelabour, preterm rupture of membranes (pPPROM) at 17 weeks gestation and to refer the plaintiff to an obstetrician.

The plaintiff presented to three different emergency departments over four days with a "gush of fluid" and other symptoms consistent with ruptured membranes.

All three physicians diagnosed threatened miscarriage or second trimester bleeding instead.

The failure to diagnose and refer resulted in a delay of approximately one day before the plaintiff reached a tertiary hospital.

During that delay, the plaintiff developed septic shock, leading to amputation of her left leg below the knee, partial amputation of her right foot, kidney failure requiring transplant, stroke, compromised right arm function, and seizures.

The trial judge found that all three defendants breached the standard of care by failing to diagnose the rupture of membranes and failing to immediately refer to an obstetrician.

However, only the first defendant (Dr. Cavanagh) was found liable for damages, as the evidence established that if the plaintiff had been referred on May 4, she would have been seen by an obstetrician, counselled regarding the grave risks, and would have elected to terminate the pregnancy.

Antibiotics and termination by May 5 would have prevented the septic shock and resulting injuries.

The subsequent physicians' breaches occurred too late to prevent the harm.

The court considered a motion by the defendants for production of video and audio recordings from the plaintiffs’ in-home camera system in a medical malpractice action.

The court found that while such recordings may be relevant to the issues in dispute, the plaintiffs’ privacy interests in their home are paramount and outweigh the need for production.

The motion for production was dismissed.

This appeal addresses the application of the open court principle to court-approved settlements involving minors or persons under disability, as required by Rule 7.08 of the Rules of Civil Procedure.

The appellants sought sealing orders for motion records related to these settlements, arguing that such motions, heard in writing, are not subject to the open court principle, or that the court's parens patriae jurisdiction, privacy interests, and solicitor-client privilege justify sealing.

The Court of Appeal dismissed the appeals, affirming that the open court principle applies to written proceedings and that neither parens patriae nor solicitor-client privilege provides a freestanding basis for sealing orders.

The court found that the appellants did not meet the Sherman test for a sealing order, as the privacy interests were not at serious risk of undermining dignity, and the protection of minors/disabled persons and solicitor-client privilege were not seriously jeopardized by public access.

The plaintiffs brought a motion for court approval of a $14,000,000 settlement in a medical negligence action involving a minor who suffered catastrophic brain damage.

The court approved the settlement, the allocation of damages, and the proposed contingency fees for plaintiffs' counsel, finding them fair and reasonable given the significant risks and complexity of the litigation.

However, the court dismissed the plaintiffs' request for a sealing order, holding that it was contrary to the open court principle and that no compelling interest justified sealing the materials.