Ontario trial judge dismisses significant medical malpractice action

Date Closed

June 19, 2009

Lead Office


The significant medical malpractice decision of Suwary v. Women's College Hospital et al. 2009 CanLII 31985 (Ont. S.C.J.) was delivered by Justice Moore on June 19, 2009. Justice Moore dismissed the action against the defendant obstetrician and the defendant hospital after a trial lasting approximately three months.

The plaintiffs alleged that the management of the pregnancy, labour and delivery was negligent. Damages had been settled prior to trial. The main issue at trial was whether the defendant obstetrician's decision to intervene to assist the delivery and whether his actions following that decision to intervene met the standard of care. The plaintiffs called six expert witnesses on standard of care and causation while the defendant doctor called one. Justice Moore held that the defendants met the standard of care. In addition, his Honour held that the defendant obstetrician did not cause the intrapartum asphyxia suffered by the fetus and that nothing he could have done in the management of the labour would have avoided the insult suffered as a result of the unpredictable asphyxial episode. The intrapartum asphyxia was caused by an unforeseen event; specifically, likely an occult cord prolapse that began shortly after the mother began to push producing deep decelerations of the fetal heart.

Justice Moore also decided an important mid-trial motion limiting the plaintiffs to two obstetrical experts rather than the four obstetrical experts they intended to call. His Honour held that the opinions of the additional obstetric experts overlapped with the trial evidence already heard from the first two obstetrical experts and therefore it was not necessary for the plaintiffs to call more experts to fairly and fully present their case.

McCarthy Tétrault LLP acted for the defendant obstetrician with a team that was led by Frank McLaughlin, Sharon WIlmot, and Kenneth Morris.