Fridays With Rogers Partners

At our weekly meeting, Matthew Umbrio addressed the Ontario Court of Appeal decision of Woods v. Jackiewicz, 2020 ONCA 458. The appellant physician appealed from an award of damages against him for negligent management of a twin pregnancy, following a jury trial. He did not challenge the jury finding that he did not meet the standard of care, but instead argued that the jury verdict on causation was unreasonable.

The physician also argued that the trial judge ought to have instructed the jury on drawing an adverse inference against the plaintiffs because they did not call a witness to deal with a gap the physician identified in the evidence. Further, the physician argued that the charge to the jury was inadequate, unbalanced, contained errors, and should have included an explanation that a mere loss of chance to avoid an injury does not establish causation.

In 1991, Ms. Booth attended at the physician’s office for an unscheduled appointment. She complained of severe abdominal pain and excessive weight gain. The physician sent her home to rest. Two days later, she attended at Niagara Hospital, which immediately transferred via ambulance to McMaster Hospital. Her babies were delivered via emergency C-section, only 27 weeks into the pregnancy. As a result of the premature birth, one of the twins sustained brain damage.

At trial, the jury found the appellant to be negligent for failing to arrange for Ms. Booth to be seen immediately by a perinatologist. The theory of the plaintiffs’ case was that if she had been seen by specialists at a tertiary centre with expertise in high risk pregnancies, like McMaster Hospital, then the Twin-to-Twin Transfusion Syndrome (TTTS) imperiling the babies would have been detected and treated.

The causation issues at trial related to the availability of effective treatment for TTTS at McMaster in 1991. Amnioreduction was effectively the only treatment available for TTTS at the time. The only other alternative was an emergency C-section, which could have catastrophic consequences at the gestational age, as it did in this case.

At trial, the plaintiffs called several expert witnesses. Dr. Barrett, an expert in management of twin pregnancies, testified that amnioreduction was not a complicated procedure and that any perinatologist should have been able to perform such treatment at the time. He testified that amnioreduction was widespread at the time and was a standard treatment.

Dr. Farine also testified for the plaintiffs, stating that they did amnioreductions in Hamilton all the time, but that he did not have direct knowledge of whether McMaster Hospital performed amnioreductions at the time. He further testified that there would be no reason not to be able to perform the treatment at the time.

The physician’s expert, Dr. Mundle, testified that he had a “feeling” that McMaster was not performing amnioreductions at the time and that the treatment was of limited availability in 1991. Dr. Barrett and Dr. Farine disagreed with Dr. Mundle on the availability of the treatment.  

On appeal, counsel for the physician argued that Dr. Barrett and Dr. Farine were not able to opine on whether the treatment was available at McMaster in 1991, as neither had direct knowledge nor worked there at the time.

The Court of Appeal was asked to review the jury’s verdict and, keeping in mind that there was an alleged gap with respect to the evidence about whether the treatment was available at the time, determine whether the verdict was unreasonable.

The Court of Appeal noted that the test for appellate interference with a jury verdict is high. In Parent v. Janandee Management Inc, 2017 ONCA 922, the Court of Appeal stated that a civil jury’s verdict should be set aside only where it is so plainly unreasonable and unjust that no jury reviewing the evidence as a whole and acting judicially could have arrived at the verdict.

Justice Pardu, for the Court of Appeal, noted it was open to the jury to infer that if Ms. Booth had been referred to McMaster on the same day she saw the physician, an amnioreduction would have been performed to effectively treat the TTTS. It was open to the jury to infer that McMaster, a tertiary centre specializing in high risk or problem pregnancies, could administer the easy-to-perform treatment.

The plaintiffs’ experts had provided a basis from which the jury could infer that the TTTS would have been successfully treated at McMaster in 1991. It was also open to the jury to reject the physician’s expert’s “feeling” that the treatment was unavailable at McMaster at the time.

With respect to the adequacy of the jury charge, the Court of Appeal held that the trial judge did not err by refusing to instruct the jury that they were permitted to draw an adverse inference from the plaintiffs’ failure to call any witness from McMaster to give direct evidence on the availability of the treatment in 1991. The Court of Appeal noted it was open to either party to call that evidence if they thought it was important.

The Court of Appeal also held that the jury charge did not give disproportionate weight to the plaintiffs’ experts, nor did it mischaracterize the expert evidence. The trial judge did not review the evidence in great detail, but as the Court of Appeal previously noted in Surujdeo v. Melady, brevity in a jury charge is desired.

The test to determine whether a jury charge is adequate depends on the particular case and is one of fairness. The charge will be adequate where the trial judge puts the evidence to the jury in a manner that will allow the jury to fully appreciate the issues and the defence presented. This is to be assessed in the context of the entire trial. The question to ask is whether the jury would have understood the issues of fact, the relevant legal principles, how the facts related to the law, and the positions of the parties.

The Court of Appeal held that the jury charge was adequate in this context. The trial judge had not mischaracterized the evidence, nor had he favoured one party’s evidence of the others.

Finally, with respect to whether the trial judge erred by refusing to instruct the jury that a mere loss of chance is not compensable at law, the Court of Appeal noted that this was never raised nor suggested. The trial judge did not suggest at any point that a mere loss of chance to avoid injury was sufficient to establish causation.

Counsel for the  physician pointed out that the complexity of the case and the centrality of causation as reasons why this direction was necessary and should have been included. The Court of Appeal disagreed, holding that this would have risked adding unnecessary complexity and confusing the jury.

As a result, the appeal was dismissed.