Hirchberg v. Branson Drug Store

Hirchberg v. Branson Drug Store

The appeal is dismissed because the appellant failed to produce admissible, qualified expert evidence on standard of care and causation sufficient to raise a genuine issue for trial, whereas the respondents produced expert evidence negating breach and causation; informed consent was supported by the evidence and there was no procedural unfairness in refusing further time or adjournment.

Citation
2017 ONCA 62
Parties
Self Represented Plaintiff (appellant): Terry Hirchberg; Defendant (respondent): Dr. Mary Doherty; Defendant (respondent): Dr. Todd Mainprize; Defendant (respondent): Dr. Ken Peckham; Defendant (respondent): Dr. Michelle Hart; Defendant (respondent): North York General Hospital; Defendant (respondent): Sunnybrook Health Sciences Centre; Defendant (respondent): Branson Drug Store; Defendant (respondent): Odette Cancer Centre Pharmacy; Defendant (respondent): Baycrest Hospital
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
25 January 2017
Procedural Posture
Medical Malpractice Civil Appeal / Appeal From Summary Judgment (motion for Summary Dismissal)
Outcome
Appeal dismissed; summary dismissal of the action affirmed.
Legal Topics
Summary Judgment, Expert Evidence Qualification, Standard of Care, Causation, Informed Consent, Costs
Source Language
English
Medical Malpractice Civil Procedure Evidence Health Law Summary Judgment Expert Evidence Qualification Standard of Care Causation +2 more

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Parties

Terry Hirchberg

Self Represented Plaintiff (appellant)

Dr. Mary Doherty

Defendant (respondent)

Dr. Todd Mainprize

Defendant (respondent)

Dr. Ken Peckham

Defendant (respondent)

Dr. Michelle Hart

Defendant (respondent)

North York General Hospital

Defendant (respondent)

Sunnybrook Health Sciences Centre

Defendant (respondent)

Branson Drug Store

Defendant (respondent)

Odette Cancer Centre Pharmacy

Defendant (respondent)

Baycrest Hospital

Defendant (respondent)

Procedural Posture

Medical Malpractice Civil Appeal / Appeal From Summary Judgment (motion for Summary Dismissal)

Legal Issues

  1. 1 Whether the motion judge improperly rejected or failed to consider the appellant's expert evidence
  2. 2 Whether there was a genuine issue for trial on standard of care and causation in absence of qualified expert opinion
  3. 3 Whether informed consent was inadequately established

Ratio Decidendi

The appeal is dismissed because the appellant failed to produce admissible, qualified expert evidence on standard of care and causation sufficient to raise a genuine issue for trial, whereas the respondents produced expert evidence negating breach and causation; informed consent was supported by the evidence and there was no procedural unfairness in refusing further time or adjournment.

Court Disposition

Appeal dismissed; summary dismissal of the action affirmed.

Orders

  • Summary dismissal of the action affirmed.
  • Appellant to pay costs to the physician respondents in the sum of $5,000 inclusive of disbursements and applicable taxes.