Court File and Parties

Citation: Oran v. Abourawi, 2010 ONCA 567

Date: 20100830

Docket: C51733

Court of Appeal for Ontario

Blair, MacFarland, and Watt JJ.A.

Between

Basho Oran

Plaintiff (Appellant)

and

Dr. Hussein Musbah Khalaff Abourawi and Hotel Dieu Grace Hospital and Administrator Mr. Neil McEvoy

Defendant (Respondents)

Counsel:

Basho Oran, in person

Kelly Tranquilli and John Nicholson for Dr. Hussein Musbah Khalaff Abourawi

Anna Marrison and Ewa Krajewska for Hotel Dieu Grace Hospital and Neil McEvoy

Heard: August 30, 2010

On appeal from the judgment of Justice Steven Rogin of the Superior Court of Justice dated February 1, 2010.

Appeal Book Endorsement

[1] We see no basis for interfering with the summary judgment granted by the motion judge dismissing the action against Dr. Khalaff and the hospital defendants. The record does not disclose any genuine issue requiring a trial for disposition.

[2] Mr. Oran argues that his claim is based on medical battery, not negligence; but is framed in negligence and there is no claim for battery pleaded. In any event, the record is clear that the appellant gave an informed consent to the very surgical procedure that was performed. Moreover, the appellant has filed no expert evidence indicating what the standard of care was or that Dr. Khalaff fell below any such standard. Indeed, the evidence is to the contrary and indicates that the appellant was fully informed of all material risks related to the surgery, and insisted that the surgery proceed.

[3] The action was properly dismissed against the hospital defendants. There is no evidence of any negligence on the part of any hospital employee or nurse. Dr. Khalaff was not an employee, but a surgeon with admitting privileges. The principle of vicarious liability does not apply therefore, even if he had been negligent, which on the record he was not. The hospital had no obligation to obtain an informed consent in these circumstances.

[4] The appeal is therefore dismissed.

[5] Costs of the appeal are payable by the appellant to the defendant, Dr. Khalaff and the hospital defendants, fixed in the amount of $5,000 each, inclusive of disbursements and all applicable taxes, if requested.