Significant Medical Malpractice (Birth Injury) Ruling

The law is constantly evolving. As legal advocates and representatives who bring actions to court, Gluckstein Lawyers often has a front-row view of interesting and significant decisions that help to shape and direct this evolution.

Recently, Gluckstein Lawyers was involved in a medical malpractice case where the rare legal procedure of partial Summary Judgment was applied. In this blog post, we outline the matter presented for consideration and what the presiding judge said when explaining how he made his decision.

The Case

The case that was the subject of this exceptional ruling (Duggan v. Lakeridge Health Corporation, 2017 ONSC 7340) is a medical malpractice action in which the minor Plaintiff was left severely disabled with cerebral palsy caused at the time of her birth. The Defendant doctor admitted liability, acknowledging that she had breached the standard of care in her delivery of the minor Plaintiff. She also acknowledged that such breach caused the minor Plaintiff to suffer neurological impairment.

The minor Plaintiff will require significant future care as a result of her birth injuries. All parties before the court agree the cost of this care will comprise a large part of her claim. What continues to be disputed, however, is the extent of future care required.

Seeking A Partial Summary Judgment For The Continuing Cost of Care

The Defendant doctor had previously made advance payments totalling $1.3 million. These funds, along with a $500,000.00 settlement received from the Defendant hospital, had been used towards the minor Plaintiff's much-needed therapies and care, as well as towards the purchase of a home and the necessary accessibility modifications that were approved by the Court.

A long adjournment of the trial (between November 2016 and November 2018) meant that much of the previously advanced funds were being spent long before the case would be resolved. There were fears that in the absence of further advance payments, the minor Plaintiff's continuity of care would be threatened and she may regress.

Representing the Plaintiffs, Gluckstein Lawyers brought a Motion for partial Summary Judgment on November 3, 2017. A partial Summary Judgment separates issues in an action before a court. This division allows the court to rule on one part of the action while reserving judgment on the other part. Based on an expert's assessment of the minor Plaintiff's demonstrated need for ongoing care, an additional advance payment of...