T. Sutton

The plaintiff underwent emergency surgery performed by the defendant thoracic surgeon to repair a paraesophageal hiatus hernia.

During the operation, a bougie became stuck in the plaintiff's esophagus, and its removal caused a de-gloving injury to the esophagus.

Several weeks later, the plaintiff suffered a severe stroke.

The plaintiffs sued the surgeon for medical malpractice, alleging negligence in the performance of the surgery and that the resulting esophageal injury caused the stroke.

The court dismissed the action, finding that the surgeon met the standard of care and that the stroke was cardioembolic, caused by atrial fibrillation, and unrelated to the esophageal injury.

Following an appeal that remitted the issue of the quantum of full indemnity costs back to the motion judge for reassessment, the court reviewed the applicant's bill of costs for $707,173.00.

The respondent challenged the costs on several grounds, including hourly rates, time spent, use of law clerks and students, and alleged over-lawyering.

The court rejected the respondent's critiques, finding the fees claimed were fair, reasonable, and proportionate to the complex estate litigation.

The court affirmed the original full indemnity costs award and awarded the applicant partial indemnity costs of $8,500 for the reassessment hearing.