Significant Medical Malpractice (Birth Injury) Ruling

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The law is constantly evolving. As legal advocates and representatives who bring actions to court, Gluckstein Lawyers often has a front-row view of interesting and significant decisions that help to shape and direct this evolution.


Recently, Gluckstein Lawyers was involved in a medical malpractice case where the rare legal procedure of partial Summary Judgment was applied. In this blog post, we outline the matter presented for consideration and what the presiding judge said when explaining how he made his decision.

The Case

The case that was the subject of this exceptional ruling (Duggan v. Lakeridge Health Corporation, 2017 ONSC 7340) is a medical malpractice action in which the minor Plaintiff was left severely disabled with Cerebral Palsy caused at the time of her birth. The Defendant doctor admitted liability, acknowledging that she had breached the standard of care in her delivery of the minor Plaintiff. She also acknowledged that such breach caused the minor Plaintiff to suffer neurological impairment.

The minor Plaintiff will require significant future care as a result of her birth injuries. All parties before the court agree the cost of this care will comprise a large part of her claim. What continues to be disputed, however, is the extent of future care required.

Seeking A Partial Summary Judgment For The Continuing Cost of Care

The Defendant doctor had previously made advance payments totalling $1.3 million. These funds, along with a $500,000.00 settlement received from the Defendant hospital, had been used towards the minor Plaintiff's much-needed therapies and care, as well as towards the purchase of a home and the necessary accessibility modifications that were approved by the Court.

A long adjournment of the trial (between November 2016 and November 2018) meant that much of the previously advanced funds were being spent long before the case would be resolved. There were fears that in the absence of further advance payments, the minor Plaintiff's continuity of care would be threatened and she may regress.

Representing the Plaintiffs, Gluckstein Lawyers brought a Motion for partial Summary Judgment on November 3, 2017. A partial Summary Judgment separates issues in an action before a court. This division allows the court to rule on one part of the action while reserving judgment on the other part. Based on an expert's assessment of the minor Plaintiff's demonstrated need for ongoing care, an additional advance payment of $600,000.00 was sought.

The Arguments For And Against Partial Summary Judgment

The Defendant doctor argued there was no admissible evidence before the Court with respect to the minor Plaintiff's need for ongoing care and the cost of such care. The Plaintiffs' Future Cost of Care expert had provided a report that was put before the Court as an exhibit to an affidavit filed by the Plaintiffs' lawyer. The Defendant argued this prevented cross-examination of the expert on her recommendations. Therefore, it was argued that the Plaintiffs could not rely on this report as the basis for a further advance payment. By contrast, the Plaintiffs argued that their lawyers had given proper notice that the report would be before the Court.

The Decision

On the question of the admissibility and use of the expert report when considering the cost of care in a potential partial Summary Judgment, the appointed case management judge, Justice Edwards, agreed with the Plaintiff.

While he noted the expert's curriculum vitae should have also been attached to the report to fully satisfying the rules of civil procedure, these rules should always be interpreted in a way that permits "the just, most expeditious and least expensive determination of every civil proceeding on its merits." He explained that if he disregarded the expert report he would disregard the entirety of his knowledge of this case as its case management judge. Throughout his previous involvement in the case he had been presented all of the parties' expert evidence.

On the question of whether a ruling could be made on part of the total cost of care claim, Justice Edwards considered a recent precedent-setting Court of Appeal ruling. That ruling made it clear that a Motion for partial Summary Judgment is "a rare procedure...that is reserved for an issue or issues that may be readily bifurcated [separated] from those in the main action, and that may be dealt with expeditiously and in a cost-effective manner."

Ultimately, Justice Edwards determined that the minor Plaintiff's case fit into that rare case category because of the Defendant's admission of liability, the minor Plaintiff's immense needs, and the fact that the judgment against the Defendant doctor will be significantly higher than any past or current advances to the Plaintiff. To balance the interests of both the Plaintiff and Defendant in this matter, Justice Edwards' Order indicated that the Future Care experts for both parties should meet to discuss the minor Plaintiff's ongoing needs. He agreed to order advance payments in full where there was agreement on the level of care required and advance payments for the minimum amount required when there were disagreements about the costs of care.

What It All Means

The decision, which will not be appealed, not only follows recent precedent on partial Summary Judgment, it also provides much needed commentary of applying the Rules of Civil Procedure in Motions for these types of actions.

Although Gluckstein Lawyers was actively involved in this action as an advocate for the Plaintiff, our team is constantly monitoring these types of rulings and precedents in other cases to ensure we provide knowledgeable, up-to-date and effective legal representation to all our clients.

It's one aspect of our firm's ongoing commitment to full-circle care. To learn more about how Gluckstein Lawyers can help if you or a loved one has sustained a serious injury, contact us


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