SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-11-425483

DATE: 20151019

RE: Peter Mishan, Kathy Mishan, David J. Mishan, Adam M. Mishan, Sarah L. Mishan, and Naomi B. Mishan by her litigation guardian Peter Mishan, Plaintiffs

AND:

York Central Hospital, Nurse Candy Wong, Nurse Nana Vadachkoriya, Nurse Michelle Van Der Valk, Nurse Janese Langley, Dr. Darryl J. Gebien and Dr. John A. Hayami, Defendants

BEFORE: Madam Justice Darla A. Wilson

COUNSEL:
Miles Obradovich, Counsel for the Plaintiffs

Kate Crawford, Counsel for the Defendants

HEARD: In Writing

ENDORSEMENT

[1] The main Plaintiff, Peter Mishan, brought a negligence claim arising from the treatment he received on May 10-12, 2009 at York Central Hospital. The other Plaintiffs are Mr. Mishan’s wife and children who assert claims pursuant to the Family Law Act. Naomi is the minor daughter of the Plaintiff.

[2] Briefly put, Mr. Mishan attended at the named hospital on May 10, 2009 with various symptoms and he was discharged home after assessment by a nurse and an emergency room physician. He re-attended at the hospital on May 12, 2009 and was admitted; he suffered an acute brain stem infarct on May 13, 2009.

[3] The Statement of Claim was issued in November, 2011 and the statements of defence were received by January 2013. Discoveries were not held.

[4] In March, 2015, counsel for the Plaintiffs submitted a motion record pursuant to Rule 7 for approval of the dismissal of the claim, including that of the infant. In the motion to dismiss the claim, counsel deposes that the Plaintiff informed him in September, 2013 that “he no longer wished to pursue the claim… as he was not prepared to fund an expert neurological opinion…” As a result, he sought the dismissal of the claim.

[5] I refused to approve the proposed dismissal and requested further information in my endorsement dated March 25, 2015.

[6] In response, I received a further affidavit from the solicitor sworn April 27, 2015. In the affidavit, the solicitor deposes that he retained an expert on the standard of care and received an opinion in July, 2010 which stated that the care provided did not meet the applicable standard but “the legal issue of causation is the key.” Counsel asserted that the expert could not opine on the causation issue and another expert in the field, a neurologist, needed to be retained to offer an opinion. The medical records that I requested be produced indicated that Peter Mishan continues to suffer the effects of the stroke.

[7] In my further endorsement dated June 5, 2015, I noted that counsel had the original expert opinion in July 2010 and the matter continued for another 3.5 years without another expert opinion being sought or any discovery. I observed that it was not clear what had transpired that resulted in a decision to abandon the litigation. I inquired whether an account would be rendered to the Plaintiffs. I received a letter from counsel advising that no fee would be charged but a disbursement account would be sent to the Plaintiff.

[8] Generally, it is recognized that in order to succeed on a medical negligence claim a Plaintiff must secure the opinion of a qualified expert to speak to the issues of standard of care, causation and damages. Lawyers who act for Plaintiffs in personal injury and medical negligence claims usually do so on the basis of a contingency fee agreement (CFA). The understanding between the lawyer and the client in a professional negligence claim is that because these types of actions are usually difficult to prove and therefore fraught with risk, the CFA is a fair way to proceed. It is accepted that often the use of a CFA is the only way an injured party can access the judicial system-see Hunter v. 8184888 Ontario Inc. 2013 ONSC, 5245, paragraph 26.

[9] Lawyers who take on these types of cases must be prepared to fund the expert opinions that are necessary to determine if the Plaintiff has a case that could succeed at trial. Sometimes, the expert retained will offer an opinion that there is no breach of the standard of care or that the causation issue cannot succeed. In such cases, counsel must provide his or her recommendation to the client about the wisdom of pursuing litigation.

[10] Sometimes the “bad news” is received further down the road of litigation when significant legal fees and expert disbursements have been incurred. Lawyers who are retained on these files know at the outset that there is a possibility the action may not be successful and counsel will not be paid for time expended and disbursements paid. This is an unfortunate reality of doing this type of work.

[11] In my view, if lawyers are not prepared to take these difficult professional negligence cases on a CFA basis, recognizing they may have to absorb the legal fees and disbursements if no supportive expert opinion can be secured, the Plaintiff ought to be referred out to counsel who will take the case on such a basis.

[12] In the solicitor’s affidavit, it is deposed that the Plaintiff is “not prepared to fund an expert neurological opinion” and therefore does not wish to continue on with the case. On the evidence before me I cannot make any finding about the merits of the claim and therefore the question of whether or not it is in the best interests of the minor to dismiss the action cannot be answered.

[13] In the case before me, Mr. Mishan cannot fund an opinion on causation from a qualified expert and as a result, he does not wish to proceed with the claim. It appears that this lawsuit has been at a standstill since July 2010, more than 5 years ago.

[14] Given the passage of time, in these circumstances, an order shall issue dismissing the claim, including that of the infant, without costs.

D.A. Wilson J.

Date: October 19, 2015