Complexities of the Medical Malpractice Jury Trial

Conclusion

Jury trials have a long history in both civil and criminal litigation. For some, they represent a core right and, as noted by the Ontario Superior Court of Justice Divisional Court, “[t]hey are an integral part of how we, as Canadians, govern ourselves in a free and democratic society.” In medical malpractice cases, the value and complexity of electing a jury trial over a trial before a judge alone must be carefully considered before serving a jury notice. Assuming jury trials resume after October 2022 (an open question), whether a jury notice will be struck is the first hurdle. If it can be surmounted, counsel should consider their ability to teach untrained laypeople enough of the medical issues to feel comfortable that they can prove their case. Finally, the lawyers will need to consider the risk of a jury verdict being rejected and the additional time and money that would be expended in pursuing a new trial. All in all, jury trials in medical malpractice are a viable option in the right case but will rarely, if ever, be a slam dunk option and should be carefully analyzed to ensure they are in fact in the client’s best interests.

1. R. v. Sherratt, 1991 CanLII 86 (SCC), [1991] 1 SCR 509, at para <https://canlii.ca/t/1fslt>
2. Ibid.
3. Supreme Court Civil Rules, BC Reg. 168/2009, at 12-6(1).
4. Supreme Court Civil Rules, BC Reg. 168/2009, at 12-6(5).
5. Forstved v Kokabi, 2018 BCSC 1878
6. Mewhort v Frimer (1980), 19CPC 59 at para 61 and 63.
7. Rados v Pannu, 2015 BCCA 459 at para 7.
8. Mewhort, supra at para 61 and 63.
9. Rados, supra at para 12.
10. Cliff v Dahl, 2012 BCSC 276 at paras 32, 40 and 44.
11. [Lord Estate v. Royal Columbian Hospital, [1982] BCJ No. 456
12. [Renaerts (Guardian ad litem of) v. Korn, [1998] BCJ No. 999
13. Howe v. Hwang, [2018] BCJ No. 88
14. https://www.bccourts.ca/supreme_court/documents/COVID-19_Notice_No.41_Amendments_to_the_Supreme_Court_Civil_Rules_Temporary_Suspension_of_Civil_Jury_Trials.pdf
15. Ibid.
16. https://www2.gov.bc.ca/gov/content/justice/about-bcs-justice-system/legislation-policy/current-reviews/civil-jury-trials
17. Ibid.
18. Ibid.
19. Cheung (Litigation guardian of) v Samra, 2018 ONSC 3480 and Cheung (Litigation guardian of) v Samra, [2020] O.J. No. 3716