Complexities of the Medical Malpractice Jury Trial

Verdict issue 171

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

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Lindsay McGivern


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