R. Somerleigh

The plaintiff brought an action for negligence and battery against a locum chiropractor, alleging that the chiropractor performed a cervical spine adjustment in contravention of a 'No C/S ADJ' note in her chart, causing a disc herniation at C7-T1.

The court found as a fact that the defendant did not perform a cervical adjustment, but rather performed thoracic adjustments that were consistent with the plaintiff's previous treatments.

The court held that the plaintiff failed to establish causation on a balance of probabilities, as the onset of neurological symptoms occurred hours later, and the disc herniation could have been caused by minor daily trauma given the plaintiff's pre-existing degenerative disc disease.

The court further found that the defendant met the standard of care and had obtained valid informed consent.

The action was dismissed.

The plaintiffs sought leave to appeal an order dismissing their motion for leave to examine a non-party treating chiropractor for discovery under Rule 31.10 of the Rules of Civil Procedure, as well as leave to appeal a substantial indemnity costs award arising from that motion.

The underlying action alleged chiropractic negligence for performing cervical spine adjustments contrary to a chart notation prohibiting such adjustments.

The motions judge had found that the non-party had already provided the relevant information about the timing of the chart notation and that the plaintiffs’ attempt to question why the notation was made was beyond the scope of the pleaded issues.

The court held that the plaintiffs failed to establish good reason to doubt the correctness of the order or that the proposed appeal raised issues of sufficient importance under Rule 62.02(4)(b).

Leave to appeal both the substantive decision and the costs award was denied.