11-year-old Jennifer Crump was taken to hospital by her mother after complaining of symptoms consistent with appendicitis. Her family doctor sent Jennifer to the hospital with a note asking that she be investigated for appendicitis. The Emergency Room physician who saw Jennifer later that day also suspected appendicitis and requested a surgical consult from the defendant, Dr. Ali Otman Fiture. Dr. Fiture assessed Jennifer that same evening and declared that she likely did not have appendicitis and sent her home without ordering an ultrasound. Jennifer’s appendix burst a few days later, resulting in serious injury and the need for emergency, life-saving surgery. Following a hotly contested trial, Justice Hugh O’Connell held that Dr. Fiture had breached the standard of care and rendered judgment in favour of Jennifer Crump. Dr. Fiture is now appealing this trial decision.

Crump v. Fiture 2017 ONSC 5919 – Decision

UPDATE (May 9, 2018):  The Court of Appeal Upheld the Trial Judge’s decision to find in favour of Jennifer Crump. The Court of Appeal agreed that Dr. Fiture breached the surgical standard of care and that his negligence resulted in perforation of Jennifer’s appendix and the complications that followed. This decision was a total vindication of Jennifer’s case and the outcome achieved at trial. It was an incredibly emotional verdict and appeal decision for Jennifer and her mother, Victoria.

Crump v. Fiture, 2018 ONCA 439 – Court of Appeal Decision

This was a decision by Regional Senior Justice Daley to deny the physician defendants a hearing for a motion for summary judgment. The case involves complex medical-legal issues, including the question of whether earlier antiviral treatment would have avoided a permanent brain injury to the plaintiff, Maddalena Simms, who was admitted to hospital with a viral infection in her brain. Maddalena’s infection went undiagnosed and untreated for many weeks; she was even admitted to the hospital’s psychiatric ward due to the mistaken belief that she was suffering from a mental disorder when, in fact, she was actually suffering from severe confusion and other symptoms attributable to her brain infection. Justice Daley found that this was not an appropriate case for summary judgment and the case will proceed to trial in the coming year unless it is resolved before then.

Sims v. Zaitlen, 2017 ONSC 2501 – Endorsement

Mark Barber died on February 17, 2006, at Humber River Regional Hospital in Toronto from pneumococcal bacterial meningitis. He was 46 years of age. The respondents, his surviving wife and two daughters, sued two emergency room physicians, the appellant Dr. Virat Joshi, and Dr. David John Shergold, in negligence, alleging that Mr. Barber’s death resulted from their failure to properly investigate, diagnose and treat his meningitis.

The Court of Appeal for Ontario upheld the trial decision which found Dr. Joshi to have breached the standard of care of an Emergency Room Physician. The Court of Appeal also upheld the trial judge’s finding that with appropriate and timely medical care, Mr. Barber would have lived. Finally, the Court of Appeal awarded legal costs to Mr. Barber’s family. This appeal decision was a complete vindication of the trial decision and the Barber family’s long quest for justice.

Barber v. Humber River Regional Hospital, 2016 ONCA 897 – Appeal Judgement

This was a trial in which the plaintiff, Janice Thornhill, an artist, alleged negligence on the part of her long-standing physician, Dr. John Chong, for his failure to properly investigate and diagnose a slow-growing tumour in Janice’s right forearm. Janice attended over 60 appointments with Dr. Chong over a period of more than 9 years before Dr. Chong finally sent Janice for an MRI which led to the diagnosis and treatment of a slow-growing synovial sarcoma. At trial, Janice testified that she had repeatedly asked Dr. Chong to send her for an MRI but he had refused, insisting that the pain in her wrist was the result of a chronic pain issue. The trial judge, Justice Lack, found that Dr. Chong fell below the standard of care and that his negligence began on the first appointment with Janice and continued thereafter, resulting in a 9-year delay for diagnosis and treatment of Janice’s tumour. The trial judge preferred Janice’s trial testimony to that of Dr. Chong and the plaintiffs’ experts were preferred to the experts called by counsel for Dr. Chong. This trial victory was a landmark moment for Janice, a proud and strong cancer survivor.

Thornhill v. Chong, 2016 ONSC 6353 – Judgment

UPDATE (April 2, 2019):  The College of Physicians and Surgeons (CPSO) reviewed the care that Dr. Chong provided to Janet Thornhill over the course of over 10 years. On April 2, 2019, the CPSO released its written Decision, which considered the Trial Decision as well as the expert reports that were used at trial. In its April 2, 2019 Decision, the CPSO found that Dr. Chong breached the standard of care in his treatment of Janet’s cancer. The CPSO cautioned Dr. Chong about his charting practices, the poor quality of his assessments and his misplaced psychotherapeutic approach to Janet’s painful tumour. The College also noted that contrary to his claim of being an Occupational Medicine Specialist, Dr. Chong was not entitled to hold himself out as a specialist in Occupational Medicine, having not received that designation from the Royal College. As indicated in the Decision, Dr. Chong entered into an Agreement with the CPSO that will significantly restrict his practice and his stated qualifications. This CPSO Decision is yet another victory for Janet and a further public affirmation of the courage she has displayed. Thanks to Janet, Dr. Chong’s current and future patients will hopefully be better informed and will receive better care from this physician.

The College of Physicians and Surgeons (CPSO) Decision

This was a motion by the defendant, Dr. Fine to consolidate two cases. The plaintiff, Andrew Sommerville was stabbed repeatedly by an armed assailant, Mr. Botelho. One of the stabbing injuries was directly under Andrew’s right kneecap. Andrew was taken to hospital where he was assessed by emergency room physician, Dr. Fine. It is alleged that Dr. Fine failed to properly assess the stab wound to Andrew’s knee, which resulted in a significant delay in treatment of a lacerated patellar tendon. It is alleged that the delay in diagnosis resulted in the retraction of the patellar tendon and the need for multiple surgeries and a permanent disability for Andrew Sommerville. Andrew will likely struggle with his knee for the rest of his life and it has severely impacted his ability to work. Dr. Fine brought a separate lawsuit against the assailant, Mr. Botelho and then tried to have the two cases merged together, arguably in an attempt to deflect the blame for Andrew’s ongoing disability. Master Graham heard this motion, which was opposed by Mr. Sommerville. The Master found that the two lawsuits should not be consolidated. Simply put, Mr. Sommerville was not seeking full compensation from Dr. Fine for the entirety of his injury, including the stabbing itself. Rather, the Master agreed with Mr. Mladenovic’s submission that Andrew was simply seeking compensation for the delay in diagnosis and management of the lacerated patellar tendon, since earlier diagnosis would have resulted in a much better outcome for Andrew. As such, Mr. Botelho’s actions were found to be irrelevant to the issue of whether Dr. Fine appropriately assessed Andrew’s knee and whether earlier diagnosis and treatment would have led to a better outcome for Andrew. This case is going to trial in the next year.

Fine v. Botelho; 2015 ONSC 6284 – Reasons for Decision (Plaintiff’s motion to consolidate)

The plaintiff, Stone Shearer was a six-year-old boy with developmental delay who had a small pebble lodged in his ear. Stone’s mother took him to their family doctor who in turn referred Stone to an ENT specialist, Dr. Sewchand for assessment and removal of the pebble. Dr. Sewchand recommended a surgical procedure under general anesthetic to remove the pebble, which was impacted in Stone’s middle ear. While performing this surgery, Dr. Sewchand negligently perforated Stone’s eardrum and also damaged the bony structures of Stone’s middle ear, thereby permanently impairing Stone’s hearing. Stone also suffered an injury to his facial nerve, which resulted in one-sided facial paralysis. At trial, Justice Hugh O’Connell found that Dr. Sewchand was negligent in the manner in which he performed the surgery. Based on Mr. Mladenovic’s cross-examination of Dr. Sewchand at trial, Justice O’Connell found that Dr. Sewchand was not honest or forthcoming about his description of the surgery or how these injuries occurred. Justice O’Connell held that these injuries would not have occurred if Dr. Sewchand had acted in accordance with the requisite standard of care. This verdict was an emotional and legal victory for Stone and his family.

Shearer v. Sewchand, 2013 ONSC 4052 – Judgment

At the conclusion of trial, Justice O’Connell ordered that Dr. Sewchand pay a significant portion of the Shearer family’s legal costs. Justice O’Connell found that despite repeated and reasonable attempts by the Shearer’s lawyer, Mr. Mladenovic, to settle the case, Dr. Sewchand was intransigent and would not settle. As a result, the judge ordered Dr. Sewchand to pay the highest level of legal costs. Indeed, the legal costs that Dr. Sewchand was ordered to pay were greater than the damages in the case. The judge found that Dr. Sewchand alone was responsible for the case going to trial and it would be unfair to expect the Shearer family to bear the burden of these legal costs.

Shearer v. Sewchand, 2013 ONSC 6760 – Endorsement of Costs

This was a decision of the Health Professions Appeal and Review (HPARB), affirming the decision of the College of Physicians and Surgeons of Ontario (CPSO), finding that three neurologists at North York General Hospital fell below the standard of care in their management of Mr. Vinzenzo Costantini. Mr. Costantini was taken to hospital after falling off a ladder and hitting his head. Brain imaging revealed multiple brain bleeds, and a neurosurgeon at Toronto Western Hospital was consulted by telephone. The neurosurgeon advised that Mr. Costantini should be monitored at North York General but that if his condition worsened, to call back so that Mr. Costantini could be sent for neurosurgical assessment at Toronto Western Hospital. Mr. Costantini then came under the care of the three neurologists, Dr. Daniel Chet-Ti Wong, Dr. Kevin Sanders and Dr. Donna McRitchie. Over the course of 10 days in the hospital, Mr. Costantini’s condition deteriorated. He became incontinent, could not recognize family members and could not swallow food. A repeat CT scan demonstrated an objectively worsening brain bleed. Despite this, none of the neurologists took any steps to transfer Mr. Costantini to a neurosurgical hospital, despite repeated requests from his family members. Finally, Mr. Costantini was sent to Toronto Western Hospital where he died during surgery to relieve the pressure in his brain. The CPSO found that Dr. Wong, Dr. Sanders and Dr. McRitchie all fell below the standard of care. The doctors appealed this finding and the HPARB affirmed the CPSO decision, after hearing submissions from Mr. Mladenovic on behalf of the family and from counsel for the three doctors.

Costantini v. Wong, Sanders, McRitchie_13-CRV-0305 – Decision and Reasons

In a judgement released September 25, 2009, Madam Justice Morissette found an obstetrical nurse and obstetrical resident responsible for the cerebral palsy of Jessy Gibson who was asphyxiated due to a delay in performing a Cesarean section.  At this time it is one of the most significant infant medical malpractice cases in the country.

2009 ONSC 51196 (CanLII) – Decision

The plaintiff, Mr. Itamunoala, an Ontario resident had a brain aneurysm and saw four doctors for assessment. None of them adequately assessed Mr. Itamunoala and his condition went undiagnosed. While he was on vacation in the United States, he collapsed and was taken to the hospital. Mr. Itamunoala had emergency surgery in the United States and was left with a substantial bill for the medical services he received there, for which OHIP would not pay. Mr. Itamunoala sued the four doctors for their failure to diagnose and treat his brain aneurysm in Ontario. The trial judge, Justice Jennings found that each of the four defendant doctors was negligent and commended Mr. Itamanuala’s lawyers (Mr. Mandel and Mr. Mladenovic) for their preparation and trial presentation.

Itamunoala v. Pierce, 2005 CanLII 5349 (ON SC) – Endorsement of Costs

Itamunoala v. Pierce, 2004 CarswellOnt 6070 – Decision

Steven Spek was killed when his car was run over by the rear wheels of an oncoming tractor-trailer, operated by the defendant, Mr. Van Alten. The accident occurred at night along a winding portion of a two-lane highway. The tractor-trailer did not stop at the scene of the accident. Mr. Spek was killed instantly. There were no other witnesses to the accident. The case went to trial on the issue of where the point of impact was and whether the Spek vehicle had crossed the centre-line of the highway into the lane of the oncoming tractor-trailer, or whether the rear wheels of the tractor-trailer had encroached Mr. Spek’s lane of travel. At trial, expert evidence was called, including accident reconstruction evidence from a variety of sources including an OPP reconstruction expert. The trial judge, Justice Morrissette, found that the point of impact must have been in Steven Spek’s lane of travel and that the truck driver’s rear wheels had crossed the centre line, resulting in the fatal accident. This trial result was a complete vindication for Mr. Spek’s family.

Spek v. Van Alten, 2004 CanLII 15925 (ON SC)

Spek v. Van Alten, [2005] O.J. No. 613

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