Robert Plate

The plaintiffs moved to set aside a dismissal order and a full and final release from a 2013 settlement, arguing the injured plaintiff was under a disability and the settlement was never approved by the court under Rule 7.08.

The plaintiffs' former lawyer had fraudulently settled the action without their knowledge and misappropriated the funds.

The court found the plaintiff was under a disability at the time, but declined to set aside the settlement because the tort insurer acted in good faith, was unaware of the disability, and the settlement itself was not unconscionable.

The motion was dismissed.

Following reasons for judgment in a medical malpractice action, the court considered supplementary costs submissions from the plaintiffs seeking recovery for additional expert and transcript expenses incurred after the initial costs materials were delivered.

The defendant argued the supplementary expert evidence was unnecessary due to the plaintiffs’ change in trial strategy.

The court held that litigants may reasonably adjust trial strategy and should not be penalized in costs where services appeared necessary at the time they were obtained.

The court accepted that the supplementary expert report and transcripts used for closing submissions were reasonable litigation expenses.

The plaintiffs were awarded the additional costs sought.

The plaintiffs brought a medical malpractice action alleging that a physician performed a surgical procedure without consent during ovarian cyst surgery, resulting in sterilization.

The claim ultimately proceeded solely in battery after the plaintiffs abandoned negligence.

The court held that applying Filshie clips to the left fallopian tube constituted a separate procedure that fell outside the scope of the consent provided, and there was no emergency justifying the step.

General consent language permitting additional procedures during surgery did not authorize a sterilizing intervention where the patient had expressed a desire to preserve fertility.

The physician was therefore liable in battery.