Meringolo v. Oshawa General Hospital et al., (1991) 46 O.A.C. 260 (CA)

• Judge: Krever, McKinlay and Osborne, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: January 25, 1991
• Jurisdiction: Ontario
• Citations: (1991), 46 O.A.C. 260 (CA)

Meringolo v. Oshawa Hospital (1991), 46 O.A.C. 260 (CA)

MLB headnote and full text

Antonio Meringolo, by his Committee, Maria Meringolo, and the said Maria Meringolo (plaintiffs/appellants) v. Oshawa General Hospital, Lidia Abbatt, Marie Plummer, J. Patterson, R. Hooisma, Patricia Rosnik, Dr. M. Heiner, and Dr. E.M. Culp (defendants/respondents)

(No. 522/87)

Indexed As: Meringolo v. Oshawa General Hospital et al.

Ontario Court of Appeal

Krever, McKinlay and Osborne, JJ.A.

January 25, 1991.

Summary:

The plaintiff was permanently injured during a diagnostic procedure under anaesthetic at a hospital. The plaintiff, through his committee, pursued an action against his respiratory specialist and his anaesthesiologist.

The Ontario High Court of Justice, per Montgomery, J., dismissed the action against the two doctors. The committee appealed.

The Ontario Court of Appeal allowed the appeal and held the anaesthesiologist liable for the damages sustained by the plaintiff.

Medicine - Topic 4244

Liability of practitioners - Negligence - Anaesthesia - A patient sustained brain damage during a bronchoscopy, leaving him in a permanent vegetative coma - The trial judge dismissed his negligence action against his respiratory specialist and his anaesthesiologist - The Ontario Court of Appeal allowed the patient's appeal and held the anaesthesiologist liable, where he did not properly monitor the patient during the procedure, resulting in under or nonventilation of the patient leading to hypoxic brain damage - The court held that the trial judge erred in determining that the doctors were not negligent before he had considered all of the evidence and determined what the facts were.

Medicine - Topic 4253

Liability of practitioners - Negligence - Tests - Bronchoscopy - [See Medicine - Topic 4244].

Cases Noticed:

Snell v. Farrell (1990), 110 N.R. 200; 107 N.B.R.(2d) 94; 267 A.P.R. 94 (S.C.C.), appld. [paras. 57-66, 89].

McGhee v. National Coal Board, [1973] 1 W.L.R. 1, refd to. [paras. 59, 60].

Wilsher v. Essex Area Health Authority, [1988] 2 W.L.R. 557; 87 N.R. 140, refd to. [paras. 63, 66, 89].

Fletcher v. Manitoba Public Insurance Corp. (1990), 116 N.R. 1 (S.C.C.), refd to. [para. 74].

Stein Estate v. Ship "Kathy K", [1976] 2 S.C.R. 802; 6 N.R. 359; 62 D.L.R.(3d) 1, refd to. [para. 75].

Phillips v. Ford Motor Co. of Canada Ltd., [1971] 2 O.R. 637 (C.A.), refd to. [para. 86].

R. v. Miles of Music (1989), 31 O.A.C. 380; 48 C.C.C.(3d) 96 (C.A.), refd to. [para. 88].

Counsel:

Earl A. Cherniak, Q.C., and Paul J. Bates, for the appellants;

Colin L. Campbell, Q.C., for the respondents.

This appeal was heard on June 28 and 29, 1990, before Krever, McKinlay and Osborne, JJ.A., of the Ontario Court of Appeal. The decision of the Court of Appeal was delivered by Osborne, J.A., and released on January 25, 1991: