Plaintiff alleging failure to diagnose and treat did not deliver expert report
A malpractice action against certain nurses and a hospital has been summarily dismissed on the basis that the plaintiff failed to retain another lawyer after his prior counsel was removed or to give notice that he intended to represent himself.
In Bédard v. Pye et al., 2021 ONSC 6379, the plaintiff claimed in a dental/medical malpractice action that the defendants negligently failed to diagnose and treat the plaintiff when he visited them after suffering a fractured mandible resulting from a negligently performed tooth extraction procedure. The defendant hospital was allegedly vicariously liable for the defendants’ negligence.
The defendant dentists and the defendant physicians filed motions for summary judgment under rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which the Superior Court of Justice of Ontario granted because the plaintiff failed to provide an expert report supporting the claims of negligence in his statement of claim.
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The defendant hospital and the defendant nurses brought the present motion, asking for the same relief. The Ontario Superior Court of Justice allowed the motion and dismissed the plaintiff’s claims against the defendant hospital and nurses.
Regarding the first issue, the court stressed that a plaintiff responding to a summary judgment motion should present evidence establishing a genuine issue for trial and cannot simply rely on his negligence claims. Showing a genuine issue for trial in a professional malpractice action will usually require the plaintiff to deliver an expert’s report tackling the issue of negligence, which the plaintiff failed to do here.
Despite making this finding, the court ruled that the defendant hospital and the defendant nurses could not succeed on the first issue, given that they also failed to file expert evidence showing that they met the standard of care. However, they did rely on the fact that the defendant nurses were experts.
In the earlier motions, the court noted that the defendant dentists and the defendant physicians complied with the requirement to show that there was no genuine issue requiring a trial by providing expert reports claiming that the medical professionals met the standard of care.
On the second issue, the court struck the plaintiff’s claim under r. 15.04 of the Rules of Civil Procedure, considering that the plaintiff failed to retain another lawyer or give notice that he planned to represent himself.
The court found that the plaintiff had done nothing since the order removing his former lawyer — issued under r. 15.04 on the basis that the plaintiff failed or refused to communicate with his lawyer — was served at the plaintiff’s last known address over 18 months ago.
The court said that the requirements under r. 15.04 are not mere formalities and should be enforced to attain their purpose, which is to ensure that claims do not languish and that opposing parties do not suffer because of the uncertainty associated with outstanding litigation. According to the court, this was especially true in these circumstances, where the plaintiff failed to comply with the rule and failed to respond to the motion for summary judgment.
