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CIVIL EVIDENCE - Methods of proof - Admissions

Wednesday, April 14, 2021 @ 6:11 AM  


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Appeal by the plaintiff from the dismissal of her medical malpractice claim against the respondent doctor. The appellant attended a hospital emergency department seeking treatment for an abscess on her buttocks and hyperglycemia, as she could not get her high blood sugars under control. The appellant had several underlying health problems, including diabetes, PTSD and fibromyalgia. The respondent noted the appellant’s blood sugar level, determined the abscess was not yet ready to break and sent the appellant home. The appellant returned to the hospital three days later because the abscess had grown rapidly, and her blood sugar was higher. She was admitted for surgery to drain the abscess. In a response to request to admit, the respondent refused to admit the appellant had a perianal abscess but stated the appellant presented with a buttock abscess in the general perianal area. The trial judge refused to allow the respondent to withdraw the admission. The expert evidence at trial opined the location of the abscess was critical to whether the respondent met the standard of care, as a perianal abscess should have been incised and drained immediately. The trial judge found the appellant presented with an abscess located near the middle of the left buttock cheek and concluded the respondent met the standard of care based on the location of the abscess.

HELD: Appeal allowed; new trial ordered. The trial judge failed in his reasons to analyze essential components of the appellant’s theory of liability and explain why he found the respondent did not breach the standard of care. The trial judge’s reasons did not permit appellate review. The trial judge issued contradictory reasons about whether the respondent’s response to request to admit constituted an accurate admission regarding the location of the appellant’s abscess, which resulted in an unfair trial for the appellant and warranted a new trial. The trial judge weighed the admission against the other evidence led at trial and proceeded to effectively permit the withdrawal of the admission on the basis that it was not accurate, despite his earlier dismissal of the motion to withdraw the admission.

Champoux v. Jefremova, [2021] O.J. No. 667, Ontario Court of Appeal, K.M. van Rensburg, C.W. Hourigan and D.M. Brown JJ.A., February 12, 2021. Digest No. TLD-April122021006