Ontario Superior Court acknowledges the risks and obstacles facing the medical malpractice bar

This article was produced in partnership with Bogoroch & Associates LLP

Julius Melnitzer spoke with Ryan Marinacci, an associate at Bogoroch & Associates LLP  for Canadian Lawyer about the obstacles facing the medical malpractice bar and access to justice.

The recent Ontario Superior Court decision in Hemmings v. Peng (2023 ONSC 66) awarding plaintiffs some $4.2 million in costs and disbursement lays bare the risks and obstacles facing the medical malpractice bar and the access to justice issues these hurdles present.

The decision recognizes the tremendous financial burdens that plaintiffs’ counsel assume when they take on these types of cases and the importance of a fair assessment of costs to ensuring access to justice,” said Richard Bogoroch, founder of Toronto-based Bogoroch & Associates LLP, a civil litigation boutique whose focus includes medical malpractice and personal injury cases and who was not involved in the case.  

What plaintiffs are up against

In awarding the plaintiffs most of the $5.1 counsel sought in costs,  Justice Grant Dow specifically acknowledged that:

• Medical malpractice defendants were well-prepared and financed “to maintain a stout denial of liability and willingness to proceed to trial which often needs to be matched”;
• Going to trial exposed plaintiffs to costs awards;
• The parties’ concurrence that successful plaintiffs’ costs “can be expected to exceed” defendants’ costs “and even be twice as high”; and
• Access to justice in medical negligence matters had to be balanced with what a non-successful party could reasonably expect to pay.

Bogoroch’s associate Ryan Marinacci notes that these observations apply to medical malpractice cases across the board.

“They’re very important to keep in mind whenever these lawsuits are advanced because they reflect the reality of what plaintiffs are up against.”

Facts of the case: Hemmings v Peng

Following a decade of litigation capped by 42-day trial on liability in which the parties had agreed on damages of $12 million, Justice Grant Dow found that two of the defendant physicians and the defendant hospital were negligent in their care of Sophia Hemmings, who suffered a cardiac arrest while in the hospital’s labour and delivery operating room. Justice Dow also found that two other physicians were not at fault.

The plaintiffs sought some $5.1 million in partial indemnity costs, disbursements and HST. The at-fault parties disputed the quantum of costs, with the at fault physicians claiming costs and disbursement should not exceed $3.6 million and the hospital maintaining that the award should cap out at about $3 million.

Among other things, the defendants claimed that plaintiffs’ counsel’s docketed time of some $6.5 million and hourly rates of between $500 and $1,000  were excessive.

Plaintiffs’ counsel responded by pointing to the “need for thorough research and preparation which was required in the face of the lack of any concessions from the defendant or narrowing of the trial issues.” They also noted that the time spent was similar to that expended by defendants’ counsel.

Marinacci notes an important point raised by the plaintiffs in response to the defence taking issue with plaintiffs’ counsel’s hourly rate; namely, counsel for the plaintiffs’ submission “that caution should be exercised when comparing the rates between the parties on the basis the defendants were involved institutional clients or quasi-insurers with the ability to depress the actual rates charged to them by their counsel in exchange for the volume of work provided.”

Justice Dow also noted that some of the defendants made admissions at discovery that exposed them to findings of liability early on in the litigation.

“I believe that did inform the costs decision because some of the admissions made it pretty clear that liability would fall on at least some of the defendants,” Marinacci said.

In the result, Justice Dow awarded some $4.2 million in costs to the plaintiffs.

“I accept the nature of the claims and specifically the wide and numerous areas of possible issues and conduct by various medical professionals in the nine months leading to (the cardiac arrest) and the months thereafter put this matter at the highest end for comparison with other awards of costs in medical negligence matters. I find the defendants were well aware of this highest level of complexity given their own hard fought multiple experts’ response to the claims advanced.

Bogoroch & Associates LLP is a Toronto-based law firm that focuses on civil litigation. The firm concentrates on serious personal injury, medical malpractice, wrongful death, product liability and disability claims litigation throughout Ontario.