Martin v St Thomas Elgin General Hospital et al., 2016 ONSC 294 (CanLII)
 The plaintiff in this medical malpractice action seeks leave to amend his statement of claim in a manner that would assert, as against the extant defendant London Health Sciences Centre (“LHSC”), that it should be held vicariously liable for the alleged negligence of a physician, (Dr Ryan Degen), who was a resident performing services at the LHSC during the time of the plaintiff’s care and treatment at that medical facility.
 Submissions by plaintiff counsel, made in support of the motion, include the following:
- the applicable rule governing pleading amendments generally is mandatory, and presumptively requires the granting of leave to make amendments after the close of pleadings unless the amendments give rise to prejudice incapable of being compensated for by costs or an adjournment;
- authorities make it clear that vicariously liability of a hospital for the negligence of a resident physician is a legal possibility, albeit one dependent on the underlying facts;
- the substantive merits of the plaintiff’s contemplated assertion of LHSC’s alleged vicarious liability for alleged negligence of Dr Degen are not to be assessed or determined at this stage of the proceeding;
- the original statement of claim includes a pleading of negligence on the part of LHSC, and the plaintiff is not asserting a new cause of action or claiming against a new party through his desired amendments;
- the plaintiff is asking “to plead vicarious liability based on facts substantially pleaded in the statement of claim”; and
- the plaintiff says no prejudice arises from the amendments, insofar as the LHSC has been aware of the underlying facts since the outset of the action, and has received disclosure making it aware of the damages alleged by the plaintiff.
 The LHSC opposes the motion, and submissions by its counsel include the following:
- the proposed amendments are said to be a new cause of action, based on material facts neither found in the plaintiff’s original statement of claim, nor reasonably capable of being inferred from that pleading;
- in particular, it is said that the plaintiff is trying to do indirectly what it cannot directly, by essentially advancing a claim based on the negligence of Dr Degen which is now barred by an applicable limitation period;
- the LHSC denies that it is vicariously liable for the conduct of its “resident” physicians, and says that, if it is, the proposed amendments would not be necessary; and
- the LHSC says it will suffer irreparable prejudice if the amendments are allowed, insofar as Dr Degen has not been a resident physician at the LHSC or had any ongoing relationship with the LHSC since June of 2014, thereby making it difficult for the LHSC to investigate the allegations relating to Dr Degen, (e.g., by interviewing him), and/or to disclose records pertaining to Dr Degen.
 The remaining defendants, (the St Thomas Elgin General Hospital and Dr Shah), take no position in relation to the motion.
 As emphasized in submissions by plaintiff counsel, a number of reported decisions have indicated that vicarious liability of a hospital for the negligence of a resident physician is a legal possibility, albeit one dependent on the underlying facts. For example:
• In Aynsley v. Toronto General Hospital, 1971 CanLII 23 (SCC),  S.C.R. 435, the plaintiff sustained injuries while undergoing heart surgery at the defendant hospital. Her subsequent action for negligence included a claim against the senior resident in anaesthesiology, who was assisting the physician primarily responsible for administering the anaesthetic. The resident in question was a highly skilled and trained anaesthetist with several years of experience in his chosen line of work. However, he also was a fulltime member of the hospital staff, was paid by the hospital, and was assigned by the hospital to assist from time to time, consulting with anaesthetists in the hospital’s operating rooms. The Supreme Court upheld the Ontario Court of Appeal’s finding that, even though the resident had been acting under the direction of the principal physician, the resident still was an employee of the hospital who had been supplied by the hospital as part of its services provided to the patient. The hospital accordingly was found vicariously liable for the negligence of the resident. In the course of its decision, the Supreme Court agreed with the Court of Appeal’s general statement that liability of a hospital for the negligent acts or omissions of an employee vis-à-vis a patient depends primarily upon the particular facts of the case, including the services the hospital undertakes to provide, and the relationship of a physician to the hospital.
• In Ferguson v. Hamilton Civic Hospitals (1983), 1983 CanLII 1724 (ON SC), 40 O.R. (2d) 577 (H.C.J.), the court found that neither of two resident physicians, employed by the hospital in radiology and surgery, had been negligent. In obiter, however, the court indicated at paragraph 75 that, had it been necessary to decide the matter, the court would have held that the residents “were indeed employees of the defendant hospitals, whose Board of Governors had the right to engage and discharge residents and direct the manner in which residents were to provide services to patients”.
• In Kielley v. General Hospital Corp, 1997 CanLII 14701 (NL CA),  N.J. No. 123 (C.A.), the plaintiff was seen by a fourth year resident physician when he attended at the defendant hospital with chest pains, before the plaintiff then experienced a heart attack due to a blocked artery. Although the resident could not remember if he had signed a contract with the defendant hospital where he was working, he considered himself to be an employee of the hospital, which paid his salary and provided benefits such as insurance. The trial judge found that the resident an employee of the hospital, and that the hospital accordingly was liable for his negligence. The Newfoundland Court of Appeal held, (at paragraph 49 of its decision), that there was no palpable error in that regard. The hospital’s appeal was dismissed.
• In Comeau v. Saint John Regional Hospital, 2001 NBCA 113 (CanLII),  N.B.J. No. 450 (C.A.), a patient attended at the hospital with severe chest pains. The emergency physician consulted a resident in internal medicine, who in turn consulted an internal medicine specialist. The patient did not retain either the resident or the specialist when he arrived at the hospital, but they were provided to him and he paid for their services through Medicare. The two physicians were not paid by the hospital. Moreover, the manner in which they performed their work generally was not supervised by the hospital, and they were not acting under the hospital’s orders or control when performing their tasks. The patient was discharged on a wrong diagnosis, and died the next day from a ruptured aortic aneurism. The trial judge found both the resident and the specialist liable in part for the resulting damages, but declined to find the hospital vicariously liable for the negligence of either physician. In that regard, the trial judge essentially viewed the relationship between the two doctors and the hospital as one involving independent contractors, rather than an employment relationship giving rise to vicarious liability. In upholding that finding, the New Brunswick Court of Appeal expressly acknowledged, at paragraph 33 of its decision, that resident doctors can be considered employees of a hospital with the proper evidentiary foundation. However, such a foundation was lacking in that particular case.
• In Guay v. Wong (2008), 2008 ABQB 638 (CanLII), 463 A.R. 289 (Q.B.), an expectant mother attended at hospital, where a resident in obstetrics and gynecology administered morphine hours before the birth of the plaintiff minor, who then had global developmental delays due to brain injury caused by ischemia. A negligence claim against the resident and the hospital were dismissed because the plaintiffs were unable to prove negligence or causation. In the circumstances, it was not necessary to consider vicarious liability of the hospital for the conduct of the resident physician. The trial judge nevertheless made an obiter finding that, had the defendant resident been found negligent, the defendant hospital would have been held vicariously liable for that negligence. In that regard, the trial judge emphasized, (at paragraphs 148-149 of the reported decision), considerations that included the following: the hospital administered payment of the resident’s salary and controlled the performance of his day-to-day duties; the patient mother had not chosen the resident, who was instead provided by the hospital as part of the service expected by the public in a hospital; and the role of the resident included the provision of around-the-clock physician services to obstetrics patients at times when their own physicians were not at the hospital, which was an “integral part of the hospital organization” and not a mere “accessory” to it. In the circumstances, the trial judge was satisfied that, despite the lack of a written contract of employment, the resident was an employee of the hospital.
Source: Martin v St Thomas Elgin General Hospital et al., 2016 ONSC 294 (CanLII), par. 20, <http://canlii.ca/t/gmvm3#par20>, retrieved on 2016-09-14.
Source: Martin v St Thomas Elgin General Hospital et al., 2016 ONSC 294 (CanLII), par. 28, <http://canlii.ca/t/gmvm3#par28>, retrieved on 2016-09-14.
|Citation:||Martin v St Thomas Elgin General Hospital et al., 2016 ONSC 294 (CanLII), <http://canlii.ca/t/gmvm3>, retrieved on 2016-09-14|