ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: C801-04
DATE: 2012/02/10
BETWEE N:
STEVE MANARY and LAUREN MANARY By her Litigation Guardian, STEVE MANARY
J. G. Murdoch/C.D. Davis, for the Plaintiffs
Plaintiffs
- and -
DR. MARTIN STRBAN, DR. STEPHEN D. HALMO, DR. N. HANNA
S.E. Batner/E.D. Mogil, for the Defendants
Defendants
The Hon. Mr. Justice J.C. Kent
REASONS FOR DECISION ON COSTS
[1] After a medical malpractice trial that consumed 19 days of court time (although not all days were full days) this court found Dr. Steven D. Halmo, one of the 3 defendant doctors negligent and liable to the plaintiffs. The parties had agreed that in the event of a finding of liability the quantum of damages payable would be $430,000, inclusive of interest.
[2] The plaintiffs seek costs, in part on a substantial indemnity basis, totaling $421,574.48 for fees and $108,074.75 for disbursements. The unsuccessful defendant contends that a reasonable and appropriate costs award, in the circumstances, should be in the vicinity of $170,000.
Complexity:
[3] Like all medical malpractice actions this was a complex matter. Counsel in such actions are required to inform themselves concerning all aspects of the medical care involved and must be able to examine and cross-examine medical witnesses and experts on all medical issues as well as educate the court as the case proceeds. In this case counsel were required to address the following:
a) aortic aneurysm
b) dissection
c) detailed anatomy of the heart
d) pulmonary embolism and diagnostic tests including simpli-red, V.Q. scans, echo cardiogram, CT angiogram and transesophageal echocardiogram;
e) differential diagnosis of pulmonary embolism and/or dissection
f) the role of a most responsible physician/practitioner
g) the level of care available at community hospitals and tertiary care centers
h) performing emergency surgery on a pregnant woman
i) understanding post-mortem examination of the heart and aorta
[4] Plaintiffs’ counsel were also required to present the plaintiffs’ case first and set the proper stage for the legal analysis which would ultimately be required.
Expectations:
[5] The defendants were represented by experienced counsel provided by the Canadian Medical Protective Association. Counsel and the CMPA would have known that to litigate the plaintiff’s claim would require disbursements of $100,000 or more and approximately 1 ½ to 2 times that amount for lawyers’ time to get the case ready for trial. Perhaps another $150,000 for lawyers’ time at trial would be an appropriate expectation. A reasonable expectation for an unsuccessful defendant in the present case would, therefore, be to face a partial indemnity costs award of something in the vicinity of $400,000 and, if the award were made on a substantial indemnity basis, for well in excess of $500,000.
[6] Counsel for the defendants argues that the trial could have been much shorter if the plaintiffs had agreed to a without costs dismissal of the action as against the 2 defendants who were ultimately not found liable. While that is so, this case turned on a determination of the standard of practice required of Dr. Halmo who was an obstetrician functioning as a most responsible practitioner/physician. This meant that certain responsibilities were delegated and the doctors, collectively, carried out the plan for the totality of Christine Manary’s care.
[7] Given the situation, this court is not prepared to second guess the plaintiffs’ decision to continue the action against all three defendants, even after an agreement was reached as to damages.
[8] While it can be suggested that more work was done by counsel for the plaintiff than may have been necessary, the time spent is not inordinately more than appropriate in a complex case such as this.
Proportionality:
[9] Costs in a complex medical malpractice can equal or exceed the damages award. See: Dybongco-Rimando Est. v. Jackiewicz [2003], O.J. No. 534 and Hassen v. Anvari , 2002, 18680 .
[10] Nevertheless, this court is required to follow an over-riding principle of reasonableness. See: Boucher et al v. Public Accountants Council 2004 1479 (ONCA) .
Offers to Settle:
[11] No rule 49.10 offer was made. Counsel for the plaintiffs urges this court to consider the provisions of Rule 49.13 and find that substantial indemnity costs became payable after an “offer” was made to dismiss the claim against 2 defendants, agree that Dr. Halmo failed to meet the standard of care and try only the causation issue. This offer was made by email on 7 October, 2010, 5 days before trial.
[12] While Rule 49.13 is of some assistance and acceptance of that offer would have shortened the trial, it does not entitle the plaintiffs to recover substantial indemnity costs from that point.
Results Achieved:
[13] A party who is successful against one, but not all defendants, does not necessarily obtain an award based upon prosecuting the claim as against all the defendants. See: Waxman v. Waxman 2003 32907 (ON SC) , 2003 O.J. No. 87 and VanDyke v. Grey Bruce Regional Health Centre 2004 O.J. No. 413 .
Decision:
[14] Considering all of the foregoing, this court is unable to make an award as sought by counsel for the plaintiff. A more reasonable and proportionate approach is to fix costs in the amount of $400,000 inclusive of disbursements and exclusive of appropriate taxes.
KENT, J.
Released: 10 February, 2012
COURT FILE NO.: C801-04
DATE: 2012/02/10
ONTARIO SUPERIOR COURT OF JUSTICE BETWEE N: STEVE MANARY and LAUREN MANARY by her Litigation Guardian, STEVE MANARY Plaintiffs - and - DR. MARTIN STRBAN, DR. STEPHEN D. HALMO, DR. N. HANNA Defendants REASONS FOR JUDGMENT KENT, J.
Released: 10 February, 2012