Options for the outcome of this review include the possibility of permanently abolishing jury trials for civil litigation in BC. 17 The other possibilities are retaining jury trials with or without reforms or restricting the availability of jury trials only to particular causes of action.18
The relative complexity of medical malpractice trials make them particularly vulnerable to a determination that jury trials should be abolished. Whether the availability of jury trials should be a fundamental right for plaintiffs and whether it provides a benefit to the parties is open for debate.
The Practical Difficulties Associated with Running a Medical Malpractice Jury Trial
There are a couple of practical considerations for counsel to consider before deciding whether to serve a jury notice in a medical malpractice case. The first overlaps with the determination of whether the jury notice will be struck. Medical malpractice claims often involve extensive medical records, numerous expert reports (on both liability and damages issues), and complex medical issues that must be resolved to prove a breach of the standard of care and the causal link between that breach and the injuries suffered. With these features at play, one of the more difficult aspects of proving one’s case can be ensuring that the trier of fact understands the intricacies of the evidence and the issues before the court. The lawyers involved have had years to assemble the information and many hours to go over the expert evidence in order to better understand the medical issues. To have all of that evidence distilled into coherent and convincing reports that can be absorbed and analyzed within a matter of weeks is a significant burden. With experienced judges who are skilled at dealing with complex material in a fast paced but comprehensive manner, the burden can be managed. Trying to explain the evidence of the solidity of your case to a jury; a collection of strangers from all walks of life with a wide range of experience with the medical system, can be more difficult.
If counsel overcomes these obstacles, there is the additional complication that jury verdicts are not set in stone. Unlike a judge alone trial, juries may fail to reach a verdict. If a verdict is found, that verdict can be rejected by the trial judge in certain circumstances. Rule 12-6(7) dictates that “[i]f, after any redirection the court considers appropriate, a jury answers some but not all of the questions directed to it, or if the answers are conflicting, so that judgment cannot be pronounced on the findings, the action must be retried.” Cheung (Litigation guardian of) v Samra, 19 provides a compelling example of the potential concerns with jury verdicts. In Cheung, the plaintiff was a child with profound disabilities as a result of hypoxic ischemic encephalopathy (brain damage resulting from oxygen deprivation). She had been diagnosed with hypotonic cerebral palsy and required assistance with almost all her activities of daily living. She alleged that these disabilities were the result of the negligence of the obstetrician who followed her mother during her pregnancy and the doctor on call at the hospital the day that she was delivered. Carol Cheung, the plaintiff’s mother, saw the defendant, Dr. Samra, on March 17, 2006. At that time, he noted that the plaintiff, Rhonda, was in breech position and consequently scheduled a caesarean section for April 25. At a subsequent appointment on March 30, Dr. Samra diagnosed intrauterine growth restriction; Rhonda was not growing as expected for a fetus of her gestational age. There are known risks associated with intrauterine growth restriction. He arranged for further monitoring but did not change the date of the scheduled caesarean section. On April 21, Carol Cheung attended hospital for a nonstress test (NST) to assess Rhonda’s health by way of assessment of the fetal heart rate. The nurse performing the test had concerns but Dr. Ma, the other defendant, assessed the fetal heart rate tracing and determined that it was reassuring. She discharged Ms. Cheung. The following morning Ms. Cheung reattended the hospital with some bleeding. Another NST was performed and this time Dr. Ma felt that the fetal heart rate was abnormal. Rhonda was delivered by urgent caesarean section on April 22, 2006. She was born flat (meaning her heart rate, breathing, colour and tone were all inadequate) and she required extensive resuscitation. It was alleged that Dr. Samra should have arranged for an earlier caesarean section and that Dr. Ma should have delivered Rhonda when Ms. Cheung first attended hospital on April 21; it was further alleged that their failure to do so caused Rhonda’s brain injury and cerebral palsy. The jury found that both doctors were negligent and that their negligence caused Rhonda’s injuries. Defence counsel asked the court to reject the jury’s verdict.
