Under the current Rules, medical malpractice will never be cut off from jury trials simply because of the cause of action; something more is required. Some medical malpractice cases are heard by juries. Others are deemed too complex to be conveniently tried before a jury and proceed before a judge alone. There is no bright line separating these cases. The unique features of each case will determine how the court exercises its discretion; there is no checklist or a scientific process.10
In Lord Estate v. Royal Columbian Hospital,11 a medical malpractice case focused on the need for safety procedures and supervision following medication changes as well as the proper treatment and drug regimen prescribed. The trial judge found that the case could not be conveniently tried by a jury. The court noted that the mere fact that medical records (both doctors’ records and hospital charts) would be entered into evidence did not mean the issues required a prolonged examination of documents. The jury notice was struck, however, on the basis that seven defendants underwent a total of 20 days of discovery (one doctor was asked over 2500 questions), the trial was anticipated to last 5-6 weeks on liability alone and the jury could not be expected to remember and properly deal with the extent of the evidence.
In contrast, the medical malpractice case Renaerts (Guardian ad litem of) v. Korn, 12 which dealt with the post-delivery care of a premature infant following an incomplete abortion, was permitted to be heard before a jury. The court concluded that, while liability was in issue, the case could be determined primarily on the basis of a series of findings of fact. The damages case involved a mass of detailed evidence including actuarial, medical, rehabilitation and other reports addressing the plaintiff’s future needs and the cost of future care together with supporting medical, school and other records. This did not preclude a jury trial as there was general agreement that the plaintiff suffered from severe disabilities and the primary issues were the degree of care required and its duration. The court held that the jury was capable of following the evidence appropriately, retaining it and deliberating effectively at the end of the trial.
In Howe v. Hwang,13 the plaintiff alleged that her physician performed the wrong surgical procedure to treat her diverticulitis and performed the procedure incorrectly leaving her with lifelong impairments. The court found that the jury would be asked to engage in a prolonged examination of documents, the resolution of the issues would require a scientific or local investigation and the issues were of an intricate and complex nature. As discussed above, however, this was only the first step in the analysis and triggered the exercise of discretion to resolve the issue. The court considered the length of the trial (10-11 days), the number of experts (5), the length of the expert reports (32 pages total) and the nature and character of the expert evidence. The jury would be called upon to deal with technically demanding scientific medical issues and unfamiliar terminology, as well as the conflicting evidence of experts, but this was within the range of functions credited to the jury system in British Columbia. The terminology was not so mysterious or opaque that the jury would be unable to come to a conclusion on the technical issues or be properly instructed.
The Impact of the COVID-19 Pandemic on Jury Trials in British Columbia
As of March 19, 2020, Chief Justice Hinkson suspended regular operations of the Supreme Court of British Columbia at all of its locations to protect the health and safety of court users and to help contain the spread of the virus. 14 Part of this suspension involved cancelling jury selections and jury trials until October 7, 2022.15 In addition to the obvious impact on the availability of jury trials between March 2020 and October 2022, this suspension may have lasting effects on the availability and practice of jury trials in British Columbia. During the suspension period, the entire premise of jury trials is under reconsideration. The Ministry of the Attorney General is now reviewing the possibility of permanent reforms. 16
