Archives for January 2022

Should medical malpractice cases be heard in front of a jury, or by judge alone?  In this article Lindsay McGivern considers this question with examples from recent case law that illustrate some of the challenges and risks involved in having a complex case heard by a jury.

Supreme Court Justice Claire L’Heureux-Dube called the jury “the conscience of thecommunity,”¹ and wrote that it can “act as the final bulwark against oppressive laws or their enforcement.”² Jury trials have long been considered a fundamental right within the Canadian court system. As with any right, there are restrictions placed upon it. For example, a trial must be heard by a judge without a jury if the case relates to the custody of an infant or the administration of a deceased person’s estate. In the context of medical malpractice there are restrictions on the use of jury trials both procedurally (whether the court will allow or refuse a jury trial) and practically (whether either party will find a jury trial effective in resolving the case). The purpose of this article is to look at some of the complexities of the medical malpractice jury trial.

Jury Trial Availability in British Columbia

By default, civil actions in the Supreme Court are tried without a jury unless a party files and serves a jury notice³. These jury notices can be challenged by the opposing party for the reasons stated in Rule 12-6(5):

1. the issues require prolonged examination of documents or accounts or a scientific or local investigation that cannot be made conveniently with a jury,
2. the issues are of an intricate or complex character, or
3. the extra time and cost involved in requiring that the trial be heard by the court with a jury would be disproportionate to the amount involved in the action.⁴

At first glance, it may appear that this rule would apply broadly to medical malpractice cases, which almost inevitably involve a multitude of experts, complex medical issues and examination of voluminous medical records. However, the analysis is not always quite as straightforward. The determination of whether to strike a jury notice for complexity or prolonged examination of documents/accounts or scientific investigation is a two-step process:⁵

1. will the issue require prolonged examination of document or account or scientific investigation; and, if so
2. can the issue be conveniently decided by a jury?

First, the judge must make a determination as to whether one of these issues is at play. If so, the judge is then required to exercise the discretionary jurisdiction contemplated by the subrule. This distinction is important. Convenience is a separate question from the factual determination as to whether there are complexities at play; the fact that a jury trial is not the most convenient mode of trial does not displace the plaintiff’s right to a trial by jury.⁶ If the finding is either that the issues require prolonged examination of documents or accounts, or that the issues require a scientific or local investigation, then the discretion must be exercised in relation to the question of whether the examination or investigation can be made conveniently with a jury.⁷ Convenience does not refer to physical or personal convenience but rather to the proper conduct of the trial; the jury must be able to understand the issues, the evidence, the submissions and the judge’s charge. ⁸ In exercising this discretion, there are a multitude of factors the court should consider, including (but not limited to):

1. the expected length of the trial;
2. the number of experts to be called;
3. the volume of expert evidence;
4. the nature and character of expert evidence;
5. the extent to which experts disagree;
6. how the trier of fact will resolve the disagreements between or among experts, including whether there will be resort to scientific literature;
7. the extent to which the trier of fact will have to understand unfamiliar medical terminology;
8. the number of issues the trier of fact will have to resolve;
9. the character of the issues; and
10. the complexities that might arise from interaction between or among issues.⁹

The Verdict – Issue 170 / Fall 2021

This is the final article in our 8-part series on medical malpractice litigation published in the Verdict law journal. In this article Susanne Raab reviews the physicians’ obligation to disclose to their patients when a medical error occurs in the provision of their health care, and also examines the consequences that flow from a failure to make these required disclosures.

This is the final part of our 8-part series on the anatomy of a medical negligence claim within which we review the following topics:

• The Doctor-Patient Relationship and Duty of Care (the Verdict Issue 163 – Winter 2019)
• Consent (the Verdict Issue 164 – Spring 2020)
• Standard of Care (the Verdict Issue 165 – Summer 2020)
• Defences to Standard of Care (the Verdict Issue 166 – Fall 2020)
• Causation – Basic Principles (the Verdict Issue 167 – Winter 2020)
• Causation – Application (the Verdict Issue 168 – Spring 2021)
• Expert Evidence (the Verdict Issue 169 Summer 2021)
• Disclosure of Errors

Introduction

In this series we have reviewed the law as it relates to a health care provider’s duty of care to their patient as well as an analysis of the standard of care required of health care providers and the various defences available. We have delved into the murky waters of causation – which, while recently clarified by the Supreme Court of Canada remains confounded by the rapid pace of medical and technological advances. At the heart of it all is the patient and the court’s increasing recognition of patient autonomy and the importance of informed consent. We reviewed the standard of disclosure required as well as the unique causation issues that arise in the context of claims based in lack of informed consent. Finally, in recognition of the critical role of expert evidence in proving medical negligence claims, we reviewed the common law and statutory rules relating to the admissibility of expert evidence.

We conclude this series with a topic that looms in the background of all medical malpractice cases – and that is the physician’s duty of disclosure to their patient when things go wrong.¹ When medical errors occur in the provision of health care, physicians have an obligation, both legally and ethically, to disclose such errors to their patients.2
But all too often this does not occur, and the cause of a patient’s poor outcome following surgery or other medical treatment remains unknown until it is discovered by a subsequent healthcare provider, or more commonly, until it is uncovered through the process of litigation.

The purpose of this article is to examine the physician’s duty to disclose medical errors when they occur, and to examine the consequences that flow from a physician’s failure to make adequate disclosure.

As with any claim based in negligence, to be successful a plaintiff must meet four requirements:

1. The defendant must owe the plaintiff a duty of care;
2. The defendant must breach the standard of care;
3. The plaintiff must suffer an injury or loss; and
4. The defendant’s conduct must have been the actual and legal cause of the plaintiff’s injury.³