Ontario Superior Court strikes out several unsupported claims in medical malpractice case

The case stemmed from alleged negligence relating to a therapeutic abortion procedure

Ontario Superior Court strikes out several unsupported claims in medical malpractice case

In a medical malpractice case involving a therapeutic abortion procedure, the Ontario Superior Court has decided to strike out several allegations in the plaintiff’s statement of claim that were not supported by material facts.

Nikki-Nancy Kamateros commenced a medical negligence lawsuit concerning a dilation and curettage abortion Dr. Dimitrois Giannoulias of Women's College Hospital performed on her. A Superior Court of Justice judge struck out specific paragraphs of Kamateros' statement of claim.

The defendants, Dr. Giannoulias and Women's College Hospital, appealed the portions of the claim that the judge did not strike or only partially struck out. These portions primarily relate to allegations of Dr. Giannoulias' prior incompetence or practice deficiencies. The defendants argued that the plaintiff made bald allegations that lacks any material facts to support them, so these allegations must also be struck.

High complication rates and expert criticism

In its decision, the appellate court emphasized that "pleadings are important" as they notify the defendant of the case to meet, and they define the scope of discovery. A pleading that demonstrates an absence of material facts must be struck. The court affirmed that similar fact evidence is presumptively inadmissible because it carries both reasoning and moral prejudice. The court explained that the prejudice of similar fact evidence almost always outweighs its probative value. Similar fact evidence is only admissible when there is a real and substantial nexus between it and the allegations in the case, such as where there is a system of specific, repeated negligence or striking similarities between the two. The appellate court found that the judge correctly applied these principles to the allegations of prior negligence and the judge struck many of the allegations because they did not contain sufficient material facts to establish their probative value.

However, the judge did not strike allegations that Dr. Giannoulias had "high surgical complication rates" and was the "subject of criticism by experts." In addition, the judge did not strike pleadings relating to Dr. Giannoulias' and the hospital's knowledge of his deficient skills. The appellate court said these pleadings would have to be predicated on prior acts, but the plaintiff did not plead any material facts to support them. The court emphasized that without these material facts of prior errors, it is impossible to determine whether there is a sufficient connection between them and the plaintiff's case to show the probative value outweighs the prejudicial effect.

The court explained that prior negligence may be relevant to a breach of fiduciary duty or the negligence of another party. There is no general duty to disclose past errors, but a doctor must disclose material risks concerning a particular procedure. Accordingly, the plaintiff could plead acts of prior negligence and known incompetence to support an allegation of breach of fiduciary duty to advise of a material risk relating to known deficient clinical skills and a failure to take remedial steps. The plaintiff could also plead that the hospital knew about the doctor's prior negligence and was negligent in failing to take proper steps to address it. However, the plaintiff could only maintain these allegations of known incompetence if they satisfy the requirements for the appropriate pleading of similar facts.

In this case, the court found that the only facts pled relate to statements made by hospital staff that the doctor had problems in the past and the case of another patient who sued. The court was not satisfied that these pleadings were sufficient to form the basis for the challenged pleadings. The court pointed out that there were no particulars of the past problems, and the case involving the other patient has no similarity to the plaintiff's case and is irrelevant.

The court agreed with the judge's finding that the plaintiff did not articulate a clear nexus between the medical procedure at issue and the similar fact evidence alleged. However, the court found that the judge committed an error of law by failing to apply the same test to the allegations of known incompetence, high complication rates, and expert criticism, which the plaintiff had baldly pled. The court found that material facts or evidence did not support these issues in the statement of claim and should be struck.

Breach of fiduciary duty

The court emphasized that breach of fiduciary duty claims must be supported by pleadings of material facts. There must be sufficient material facts to link the prior errors to the known incompetence concerning the procedure in issue, which involves a two-part analysis. First, the allegations of known incompetence must have sufficient material facts to establish they are sufficiently similar, and second, those allegations must be enough to give rise to a fiduciary duty to remedy or disclose the known incompetence. The court found that the judge correctly applied this test to some of the allegations in the claim but not to the allegations related to the defendant's knowledge of "high complication rates" and "expert criticism." According to the court, this amounted to an error of law.

The court concluded that the judge made an error in striking the allegations related to breach of fiduciary duty and related damages.

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