Patient alleges medical negligence during childbirth and post-delivery care
The Superior Court of Justice of Ontario recently dismissed a medical malpractice lawsuit, given the plaintiffs’ failure to timely provide expert evidence supporting their claims, and ordered them to pay the defendants $12,500 in costs.
This case arose from obstetric and gynecological care that the patient received during the birth of her child in August 2013.
In their statement of claim dated July 2015, the plaintiffs – the patient and her spouse – alleged that the Toronto East General Hospital and three of its doctors were negligent in performing the vacuum-assisted delivery and the post-delivery surgical repair.
The plaintiffs claimed that the negligent treatment caused physical injury, including a vaginal tear, and ongoing pain and suffering.
The defendants submitted an expert report from an obstetrician/gynecologist, who concluded that the doctors met the standard of care and that the complications experienced by the patient were not the result of negligence. A nursing care expert’s report found the hospital’s nursing care during labour, delivery, and the postpartum period appropriate and compliant with professional standards.
The defendants moved to dismiss the action. They argued that, despite their requests, the plaintiffs provided two medical opinions and a letter from a family physician to substantiate their claims only in September 2023.
Evidence found insufficient
Last May, in Mukankubana v. Toronto East General Hospital, 2024 ONSC 2818, the Ontario Superior Court of Justice granted the motion for summary judgment filed by the defendants and dismissed the plaintiffs’ medical negligence action.
The expert evidence provided by the defendants, combined with the insufficient expert evidence on the plaintiffs’ side, showed that the plaintiffs’ allegations against the defendants lacked a prospect of success, the court decided.
The court found the medical opinions provided by the plaintiffs’ experts insufficient as they were speculative, were not prepared for litigation purposes, and were focused on ongoing care rather than the care during delivery. The medical opinions also failed to address the standard of care or causation issues central to this case and failed to include the required signed form, the court said.
The court also found insufficiency in the letter of the family physician, who was not a qualified expert in the specialized care received by the patient. The letter did not meet the requirements for expert evidence, the court added.
Costs award
Last July 22, in Mukankubana v. Toronto East General Hospital, 2024 ONSC 4106, the Superior Court awarded total costs of $12,500 in favour of the defendant hospital and the three doctors.
The hospital incurred $24,000 in fees but asked for only $10,000. On the other hand, the doctors incurred $35,738.81 in fees and disbursements but requested only $10,596.50.
Despite these reductions, the court further discounted the costs requested. Ultimately, the court ordered the plaintiffs to pay $5,000 to the hospital and $7,500 to the doctors.
The court acknowledged that the plaintiffs experienced trauma and suffering due to the difficult childbirth and follow-up care. However, the court stressed the need to balance sympathy with the principle that the unsuccessful party should compensate the successful party for costs spent in the litigation.
