Paul Cahill

During a medical negligence jury trial involving the management of a twin pregnancy, the defendant obstetrician requested a jury instruction permitting an adverse inference against the plaintiffs for failing to call a treating physician from McMaster Hospital.

The court declined to give the instruction, applying the principle from Lambert v. Quinn that an adverse inference should not be drawn if the witness is equally available to both sides.

The court found the witness was compellable by the defendant and not peculiarly within the plaintiffs' power to produce.

The defendant physician brought a motion to strike portions of the plaintiffs’ amended statement of claim in a medical negligence action alleging negligent antenatal care during a twin pregnancy.

The impugned pleadings alleged similar fact evidence relating to alleged negligence involving other patients and asserted breach of fiduciary duty based on the physician’s failure to disclose complaints, regulatory proceedings, and lawsuits against him.

The court held that the similar fact allegations contained no material facts demonstrating a real and substantial nexus to the alleged negligence and were scandalous and vexatious.

References to complaints before the College of Physicians and Surgeons were also inadmissible under s. 36(3) of the Regulated Health Professions Act, 1991.

The court further found there is no legal duty requiring physicians to disclose prior complaints or lawsuits to patients, rendering the fiduciary breach allegations untenable.

The impugned paragraphs were struck from the amended statement of claim.