Claus et al. v. Wolfman et al. [Indexed as: Claus v. Wolfman]
52 O.R. (3d) 680
[2000] O.J. No. 4818
Court File No. C33534
Ontario Court of Appeal
Catzman, Goudge and Sharpe JJ.A.
December 15, 2000
Civil procedure--Summary judgment--Genuine issue for trial --Medical malpractice--Negligence--Defendants moving for summary judgment--Defendants relying on expert opinion that they had met standard of care--Plaintiffs having no expert evidence supporting their claim--No genuine issue for trial --Action dismissed--Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 20.
NOTE: An appeal of the judgment of the Superior Court of Justice (Pitt J.), reported at 1999 14824 (ON SC), 52 O.R. (3d) 673, to the Court of Appeal was dismissed without costs on December 15, 2000. The endorsement of the court was as follows:
Timothy Pinos, for plaintiffs, Elizabeth Claus, Thomas Joshua Bateman and Ronald Claus. Charles Eyton-Jones, for plaintiff, Thomas Bateman. Mary M. Thomson and Sarit Batner, for defendant, Wendy L. Wolfman. Daphne Jarvis, for defendant, Toronto General Hospital.
BY THE COURT:-- Notwithstanding Mr. Pinos' capable submissions, we see no error in the conclusion reached by Pitt J. on the motions for summary judgment before him. We are not persuaded that either of the two grounds suggested by Mr. Pinos raises a genuine issue for trial:
The "high forceps" argument fails in view of the undisputed evidence that the baby had reached a position in the birth canal where no "high forceps" delivery took place;
The "excessive force" argument fails in view of the fact that the defendants have demonstrated that there is no evidence that such force as was applied fell below an acceptable standard of care.
Accordingly, the appeal is dismissed. We share Pitt J.'s view that this is not a case in which costs should be awarded.