Paul J. Cahill

In a delayed-diagnosis medical malpractice action, the defendant physician appealed findings on liability only.

The court reviewed the trial judge’s negligence and causation analysis and found no reversible error.

The appeal was dismissed and the liability determination stood.

The plaintiff sued her gynecologist for medical malpractice after suffering a ureteric injury during a laparoscopic hysterectomy.

The plaintiff alleged the defendant was negligent in failing to detect the injury during surgery and in failing to consider the possibility of a ureteric injury and consult a urologist when the plaintiff presented with post-operative complications.

The court found no breach of the standard of care during the surgery, as the injury was likely a thermal ischemic injury that was not visually observable.

While the court found the defendant breached the standard of care by failing to consider a ureteric injury and consult a urologist post-operatively, the action was dismissed because the plaintiff failed to prove causation.

The court concluded that earlier urological intervention would not have altered the plaintiff's medical outcome or prevented the need for subsequent repair surgery.

The plaintiff sued the owners, property managers, and cleaning contractors of a shopping mall after slipping and falling near the food court.

The defendants moved for summary judgment, arguing there was no objective evidence of a hazard on the floor.

The court dismissed the motion, finding that the plaintiff's direct evidence that her foot stuck to a sticky substance raised a genuine issue for trial.

Furthermore, the court found insufficient evidence on the record to determine whether the defendants had a reasonable system of inspection and maintenance in place.

This appeal concerned a medical negligence action where the appellant gynecologist failed to perform an endometrial biopsy on the deceased, Armineh Hacopian-Armen, in 2009, leading to a delayed diagnosis of Stage IV uterine leiomyosarcoma (uLMS) and her subsequent death.

The trial judge found the gynecologist liable for breaching the standard of care and for factual and legal causation.

On appeal, the appellant challenged the findings on causation.

The Court of Appeal dismissed the appeal, affirming the trial judge's conclusions that the appellant's negligence caused the harm, emphasizing the deference owed to a trial judge's assessment of expert evidence and the foreseeability of the type of harm.

Medical negligence trial arising from an alleged delayed diagnosis of uterine leiomyosarcoma in a patient presenting with fibroids, prolonged heavy bleeding, and risk factors including age over 40 and nulliparity.

The court held that the gynecologist breached the standard of care by failing to perform an endometrial biopsy at the initial consultation and by maintaining inadequate clinical notes.

Applying the but for causation test, the court found that an earlier biopsy would likely have detected Stage I disease, leading to earlier hysterectomy and a substantially improved prognosis.

The court rejected the defence reliance on statistical literature as determinative and found both factual and legal causation established.

The Court of Appeal fixed the respondents' costs of the appeal at $90,000 inclusive of disbursements and applicable taxes.

The appellant physician appealed a jury verdict finding him liable for negligent management of a twin pregnancy, which resulted in premature birth and brain damage to one of the twins.

The appellant argued the jury's verdict on causation was unreasonable due to a lack of evidence that the required treatment, amnioreduction, was available at the referral hospital in 1991.

The appellant also challenged the trial judge's jury instructions regarding adverse inferences, the characterization of expert evidence, and the failure to instruct on loss of chance.

The Court of Appeal dismissed the appeal, finding that there was an evidentiary basis for the jury's conclusion on causation and that the jury charge was fair, balanced, and legally correct.

The plaintiffs brought an action for medical negligence against Dr. Ibrahim following a Tension-Free Vaginal Tape (TVT) surgery performed on Ms. O'Neill-Renouf.

Immediately after the surgery, Ms. O'Neill-Renouf experienced severe pain in her right thigh, which was later diagnosed as an injury to her right obturator nerve, resulting in permanent pain and physical limitations.

The plaintiffs alleged the injury was caused by incorrect needle placement during the surgery, constituting a breach of the standard of care.

The defendant argued the injury was due to edema (swelling) tracking naturally from the surgical site.

The court found the plaintiff's theory to be the only reasonable explanation, concluding that Dr. Ibrahim was liable for the damages due to a breach of the standard of care.

The defendant obstetrician, Dr. Jackiewicz, was sued for negligence by the Woods family, alleging that his breach of standard of care in managing a twin pregnancy led to Kelsey Woods incurring cerebral palsy.

During the trial, the defendant objected to the plaintiffs' closing address, which invited the jury to find causation even if the pregnancy prolongation from amnioreduction was less than the five weeks testified to by experts.

The defendant requested an instruction that the jury *must* find against the plaintiffs on causation unless a five-week prolongation was proven.

The court declined this additional instruction, finding that there was sufficient evidence for the jury to infer causation with a shorter prolongation, consistent with the principles from *Benhaim v. St-Germain* regarding the use of statistics and inferences in medical malpractice causation.

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.

During a medical malpractice jury trial, the plaintiffs challenged the impartiality of the defendant Dr. Jackiewicz's proposed expert witness, Dr. William Mundle.

The plaintiffs argued that Dr. Mundle's prior solicitor-client relationship with defense counsel and his history of testifying in favor of Dr. Jackiewicz compromised his impartiality.

The court, applying the principles from *White Burgess Langille Inman*, found that the prior solicitor-client relationship did not preclude Dr. Mundle's testimony.

While acknowledging concerns about Dr. Mundle's history of defending Dr. Jackiewicz, the court declined to preclude his testimony, limiting his evidence to causation and prohibiting questioning that would reveal Dr. Jackiewicz's disciplinary history due to the high risk of undue prejudice to the jury.

Limited cross-examination on the duration and nature of Dr. Mundle's professional or personal acquaintance with Dr. Jackiewicz was permitted.

In a medical negligence jury trial, the plaintiffs sought to introduce demonstrative aids (illustrations and charts) through their expert witness, Dr. Cecil Hahn, to explain complex medical concepts related to brain pathology, injury evolution, and statistical relationships between gestational age and neurodevelopmental outcomes.

The defendant, Dr. Allan Jackiewicz, opposed the use of these aids, arguing they were inaccurate, incomplete, unnecessary, and prejudicial.

The court, applying established legal principles for demonstrative aids, found them admissible with one minor excision to prevent misleading information, concluding that they would assist the jury in understanding complex expert evidence without being unduly prejudicial or constituting improper advocacy.

The Plaintiffs in a medical negligence action moved for leave to call four expert witnesses at trial, arguing that section 12 of the Ontario Evidence Act allowed for three experts per issue.

The court rejected this interpretation, holding that leave is required for more than three experts on all issues combined.

The motion for leave was denied, restricting the Plaintiffs to a total of three expert witnesses, citing factors such as the Defendant's objection, sufficiency of three experts for the core issues (standard of care and causation), the Defendant also calling three experts, lack of custom for more than three liability experts in medical malpractice, potential prejudice, and substantial duplication among the proposed experts.

Following the dismissal of the defendants' motion for leave to appeal, the successful plaintiff sought costs of $3,000 on a partial indemnity basis.

The defendants argued the amount was excessive and suggested $1,000, noting their own costs would have been $1,893.

The court considered the principles of proportionality and the reasonable expectations of the losing party, fixing costs at $2,000 all inclusive.

The plaintiff sought leave to appeal an interlocutory order requiring her to post security for costs.

She argued the motions judge failed to properly consider her After the Event (ATE) Legal Expense Insurance as an asset in Ontario.

The Divisional Court dismissed the application, finding the motions judge did consider the ATE insurance as one of several factors and there was no good reason to doubt the correctness of the decision.

The court also declined to admit fresh evidence regarding the ATE insurance on the leave application.

The respondents successfully sued the appellants in a jury trial for negligence after a glass Dutch oven shattered, causing severe injuries.

The jury found the appellants 75% liable for failing to adequately warn of the dangers associated with the product.

On appeal, the appellants argued the claim against one defendant was statute-barred, the jury's causation finding lacked an evidentiary basis, and the trial judge erred in instructing the jury on aggravated damages.

The Court of Appeal dismissed the appeal regarding the limitation period and liability, finding the jury's verdict was supported by the evidence.

However, the court allowed the appeal in part to set aside the $25,000 aggravated damages award due to an erroneous jury instruction.

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.

The plaintiff was injured at a park when a cormorant struck overhead hydro wires and fell on her head.

She sued the city and the hydro company for negligence.

The court ruled the plaintiff's expert evidence inadmissible as it failed the Mohan criteria.

The court held that under the Occupiers' Liability Act, the plaintiff was deemed to have willingly assumed the risks of entering the utility corridor for recreational purposes.

The court found that the hydro company did not act with reckless disregard and dismissed the action against it.

The appellant appealed the dismissal of his claim for injuries suffered in a slip and fall on a municipal sidewalk following a major snow and ice storm.

The appellant argued the municipality was grossly negligent for failing to clear the sidewalk within 36 hours as per its policy.

The Court of Appeal dismissed the appeal, agreeing with the trial judge that the municipality's response to the extraordinary storm was completely reasonable and did not amount to gross negligence under s. 44(9) of the Municipal Act.

The self-represented appellant's personal injury action was dismissed by the trial judge on his own motion before the appellant's evidence-in-chief was completed, on the basis that the evidence was incoherent.

The Court of Appeal allowed the appeal, finding that while a trial court has inherent jurisdiction to control its own process, this does not extend to dismissing cases without hearing the available evidence and submissions.

The appellant's right to a fair trial was denied.