Lexpert magazine features articles and columns on developments in legal practice management, deals and lawsuits of interest in Canada, the law and business issues of interest to legal professionals and businesses that purchase legal services.
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52 LEXPERT MAGAZINE | JANUARY 2013 TOP 10 CASES 2012 health authorities who are balancing the best interests of the public and patients when determining parameters for care look- backs and reviews," says Barry Glaspell, who does class action defense work at Borden Ladner Gervais LLP. "Class action litiga- tion, potential or actual, has the potential to skew health-care decisions and spend- ing priorities." Ouellette's key finding was that the issue as to whether a standard of care was breached was an individual issue, making a common-issues trial unmanageable. Ouellette found that causes of action existed against both the hospital and Menon. But "proof of these allegations inevitably breaks down into individual claims," he concluded. "Each claimant must … make proof of Dr. Menon's misin- terpretation of their initial tissue sample, i.e. that Dr. Menon fell below the standard of care expected of a reasonable and pru- dent pathologist in the circumstances; [and that] his failure to meet the standard of care expected of him resulted in injury suffered by the individual claimant and that the Business clients have demonstrated a high degree of awareness regarding the decision. "Clients are now looking to their lawyers to decide whether the case is an appropriate one to short-circuit the trial process and obtain a faster and cheaper result," Batner says. e Supreme Court of Canada has granted leave to appeal in Mauldin and Bruno Appliance. 10 Gay v. Menon In this case, Justice Ouellette of the New Brunswick Court of Queen's Bench, Trial Division, refused to certify a class of 15,000 patients affected by a hospital's pathology review, which indicated roughly 100 cases in which a pathologist's diagnosis of benign changed on review to malignant. "is is an important decision for public- injury suffered is one that is compensable in law." It followed, Ouellette reasoned, that a class action was not the preferable proce- dure for resolving the action. "A great deal of work at a common issue trial will be of no utility for an individual claimant and will offer little in the way of judicial economy," he wrote. But Joel Rochon of Toronto's Rochon Genova LLP, a class-action firm that rep- resents plaintiffs, says it is "quite evident" that there was a serious breakdown in the pathology processes undertaken by Menon, for which the hospital was vicariously liable. "e facts of this case approach the high water mark for systemic negligence in medical settings in Canada, and in these circumstances, the standard of care cannot properly be characterized as an individual issue," he says. "is is a very important case that the court needs to examine carefully on appeal." And it will. e plaintiffs have obtained leave to appeal from the New Brunswick Court of Appeal. Want to be recognized for your firm's creativity, execution, achievement and overall excellence in legal marketing? In 2013, the Toronto Chapter of the Legal Marketing Association will launch its inaugural local version of the Your Honour Awards program. If your firm created, developed and executed a successful business development, marketing or communications strategy in 2012, now is your chance to shine. Winners will be announced at our Gala event on February 27, 2013 in Toronto. For more information on submissions, attending the Gala and sponsorship opportunities visit: www.legalmarketing.org/toronto or email: lmatorontoawards@gmail.com February 27th 2013 Thank You to Our Sponsors: