Case information

Civil procedure — Pleadings — Scope of claims — Medical malpractice — Negligence — Where patient claims that physician failed to identify or properly interpret medical condition, whether court can restrict patient’s pleadings to exclude claim for failing to identify medical condition to patient as understood by physician or claim for improperly interpreting medical condition to patient.

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The applicant, Elias Woldemariam, sought medical treatment for his right foot, which suffered from swelling, blisters and ulcers. He was referred to the respondent, Dr. John David Struan Reid, to investigate the possibility of peripheral vascular disease. Mr. Woldemariam’s situation quickly deteriorated, and he developed symptoms of sepsis. Consequently, Dr. Reid amputated Mr. Woldemariam’s right leg below the knee.

Mr. Woldemariam sued Dr. Reid, alleging that he provided negligent care that led to his foot becoming infected and requiring amputation. Dr. Reid brought a summary trial application: he sought to have Mr. Woldemariam’s claim dismissed, contending that it was bound to fail because Mr. Woldemariam had failed to adduce expert evidence. Shortly before the hearing of Dr. Reid’s application, Mr. Woldemariam brought a cross-application seeking leave to amend his statement of claim to add new allegations which, he argued, could succeed without expert evidence. The new allegations claimed that Dr. Reid was negligent in failing to inform Mr. Woldemariam prior to the date of the operation that an amputation of at least part of his leg was inevitable and that Dr. Reid committed battery, as Mr. Woldemariam had consented only to the amputation of a toe.

The application judge granted judgment in Dr. Reid’s favour in the summary trial application, thereby dismissing Mr. Woldemariam’s claim, and dismissed Mr. Woldemariam’s cross-application to amend his statement of claim. Mr. Woldemariam appealed the decision regarding Dr. Reid’s summary trial application, arguing that the judge erred in concluding that his claim could not succeed without expert evidence; Mr. Woldemariam contended that his statement of claim includes the allegation that Dr. Reid failed to inform him of a possible amputation and that expert evidence is not required for such a claim. The Court of Appeal dismissed the appeal: it rejected Mr. Woldemariam’s argument that the new allegation that Dr. Reid failed to inform him of a possible amputation falls within the ambit of his original claim.