The court sympathized with the plaintiff but noted the lack of expert evidence supporting her claims
The Ontario Superior Court of Justice dismissed a medical malpractice claim against Toronto East General Hospital and three doctors after nearly nine years of litigation, during which the plaintiffs failed to provide an expert report supporting their claim.
In Mukankubana v. Toronto East General Hospital, 2024 ONSC 2818, Languida Mukankubana alleged negligence in the obstetric and gynecological care she received from Drs. Yoav Brill, Brian Ferguson, and Peter Vlaovic at the hospital.
In 2013, Mukankubana arrived at the hospital in active labour. Dr. Brill, assisted by Dr. Ferguson, attended to her. Dr. Brill performed a vacuum-assisted delivery the following morning to shorten the labour. Although Mukankubana and her spouse claimed they did not consent to this procedure, Dr. Brill asserted that he obtained their informed consent.
After the delivery, which resulted in the birth of a large baby weighing 4495 grams, Dr. Brill discovered a vaginal tear extending above Mukankubana's urethra. Dr. Vlaovic, a urologist, was consulted but found no damage to her bladder. Dr. Brill repaired the tear under general anesthetic, with the patient’s spouse conceding that Dr. Brill obtained written consent for the surgery. The plaintiffs alleged complications from this surgery, but the evidence showed that no additional surgery was necessary, and all sponges were removed during the initial procedure.
The plaintiffs filed a lawsuit in 2015, alleging that the doctors' negligence caused Mukankubana physical injury and ongoing pain. However, by July 2016, all parties had exchanged initial affidavits of documents, and the plaintiffs listed two expert medical opinions in their affidavit. Despite repeated requests, the plaintiffs did not produce these reports until 2023, seven years after the initial affidavit.
In 2019, the defendants presented expert reports from Dr. William Mundle, an experienced obstetrician or gynecologist, and Shannon Maier, an expert in nursing care. Dr. Mundle concluded that the doctors met the standard of care and that the vaginal tearing was due to the baby's large size, not negligence. Maier's report stated that the hospital's nurses also met the standard of care during labour, delivery, and the postpartum period.
The plaintiffs' expert reports were finally delivered in 2023, but the reports did not address the standard of care provided by the defendants or the nursing care. The Superior Court found that the plaintiffs' allegations were unsupportable without expert evidence. The court emphasized that expert testimony is essential in medical malpractice cases to establish the standard of care and causation.
During the hearing, Mukankubana described her ongoing pain and inability to return to work. The court sympathized with her condition but highlighted the lack of expert evidence supporting her claims.
Ultimately, the court granted the defendants' motion to dismiss the action, concluding that without proper expert opinion, the plaintiffs' case had no prospect of success.
