MacNeil (Litigation guardian of) v. Kajetanowicz, 2019 NSCA 35

The Plaintiff in this case, represented by Wagners, suffered from congenital hypothyroidism – a severe deficiency of thyroid hormone in newborns, which can be easily treated if detected early. In this case, the Plaintiff underwent routine newborn testing, which revealed abnormal TSH levels requiring urgent follow-up, but no steps were taken to act on that information or communicate the test results to the family.

Before the trial, the Defendants who were responsible for the hospital testing systems settled with the Plaintiff, and the trial proceeded against a neonatologist who was aware of the Plaintiff’s abnormal test results. Ultimately, that trial was heard by a jury in Sydney, Nova Scotia for several weeks.

The trial judge presiding over the case indicated to the jury that the Plaintiff had to prove negligence against the hospitals who had settled the case already, even though they were not participants in the trial. Shortly thereafter, the jury found that the Plaintiff did not prove his case, as required by the trial judge. Accordingly, Wagners, on behalf of the Plaintiff, appealed.

The Plaintiff was successful at the Nova Scotia Court of Appeal, and it was determined that the trial judge had erred when she told the jury that the Plaintiff had to prove his case against the settling Defendants. As a result of this successful appeal, the Plaintiff was awarded a new trial, where allegations of medical malpractice will be advanced against the sole remaining Defendant.

The full text of this decision is available online at:

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