On June 15, 2023, a judge awarded a successful patient in a 25-day medical malpractice trial $3 million dollars in legal costs against three defendant physicians found negligent by the Court.

In awarding such a large amount in costs, the Court considered the following factors under Rule 57.01 of the Rules of Civil Procedure:

• This case required experienced lawyers. All three plaintiff lawyers are certified specialists in civil litigation;
• A sophisticated litigant like the Canadian Medical Protective Association (CMPA) is aware that litigation is expensive and trials more so;
• The parties agreed to damages of $8.5 million. The costs sought are either 29 or 32% of that amount;
• The plaintiffs were entirely successful against the defendants;
• This was a very complicated case;
• The case was important to the Denman family;
• Mrs. Denman was a very credible witness. The defendants were not found to be credible nor reliable;
• The defendants made last minute disclosure and production;

A complete copy of the trial judge’s endorsement on costs can be downloaded here.

The trial decision was released earlier this year on February 16, 2023. The essential facts of the case were that on June 23, 2015, at the age of 54, the Plaintiff, Michael Denman (“Mr. Denman”) suffered a catastrophic brain bleed during part three of a multi-step elective course of an anterior ventricle malformation (“AVM”), causing a traumatic brain injury (“TBI”). His AVM was an unruptured, asymptomatic Spetzler – Martin Grade (“SMG”) 4.

The trial judge determined that the defendant doctors failed to meet the standard of care by not obtaining an informed consent to the procedure which was the cause of the TBI. 

In this case, the Court reviewed the law of informed consent which clearly sets out the legal duty of physicians:

Physicians have a duty, without being questioned, to disclose to a patient the material risks of a proposed procedure, its gravity, and any special or unusual risks, including risks with a low probability of occurrence, attendant upon the performance of the procedure.

The doctrine of “informed consent” dictates that every individual has a right to know what risks are involved in undergoing or foregoing medical treatment and a concomitant right to make meaningful decisions based on a full understanding of those risks.

On the facts of this case, the trial judge found that the patient had been misled by the defendant physicians about the scope, efficacy, risk and need for medical intervention. 

Had appropriate disclosure been made, neither the Plaintiff nor a reasonable patient in his circumstances would have elected to proceed with any of the medical interventions recommended by the defendants at the time the recommendations were made. 

For full details, you can read the full copy of the trial decision.