Paul Millican

Following a summary judgment motion in a medical negligence action where the plaintiff was largely successful, the court determined the appropriate costs awards.

The plaintiff sought substantial indemnity costs, which the court denied, finding the defendants did not act unreasonably in bringing the motion.

The court awarded the plaintiff $54,000 in partial indemnity costs after reducing the claimed hours for reasonableness.

The court also awarded the defendants $7,500 for their partial success on the motion and awarded Dr. Penning $12,000 for the dismissal of the action against him, with these amounts to be set off against the plaintiff's award.

The defendant physicians brought a motion for summary judgment dismissing a medical negligence action arising from complications following bowel surgery and epidural analgesia.

The plaintiff alleged failures in diagnosis and treatment of an epidural catheter infection, failure to obtain informed consent, and related causation issues after developing an epidural abscess requiring additional surgery.

Applying the “full appreciation test” for summary judgment from Combined Air Mechanical Services Inc. v. Flesch, the court held that the voluminous evidentiary record, conflicting expert evidence, and credibility issues required a trial for most allegations.

However, certain claims were dismissed: allegations relating to the surgeon’s performance of the initial surgery lacked supporting expert evidence, and claims against one physician based on a novel duty of care as a member of the Acute Pain Service failed to disclose a prima facie duty of care.

The remaining negligence, informed consent, limitation, and causation issues were ordered to proceed to trial.