Cheung v. Samra, 2018 ONSC 3480

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Jury’s answer on causation insufficient according to Justice Wilson. New trial ordered.

Facts

This birth injury case proceeded to jury trial on the issues of liability and causation. The critical issue for the 22 day trial was whether baby Rhonda’s brain damage occurred during or around her birth. The jury found that the obstetricians Dr. Samra and Dr. Ma were negligence for failing to promptly deliver Rhonda by caesarian section on April 18, 2006 instead of April 22, 2006 after identifying intrauterine growth restriction and poor non-stress test results. On causation the jury found that the failure to deliver Rhonda earlier had lead to her brain injury.

Issues

Before entering judgment, the court heard submissions on two issues raised by the defendants: whether there was evidence on the causation issue on which the court could enter judgment in accordance with jury verdict; and, alternatively, whether the jury’s answers were responsive to the questions on causation and were a basis for judgment.

Issue (1) No Evidence on Causation

To be successful on a motion pursuant to Rule 52.08, the defendants had to demonstrate a complete absence of evidence to support the jury verdict.

Justice Wilson was critical of the evidence lead by the plaintiffs, agreeing with defence counsel that “much of the expert opinion on causation consisted of bald assertions or what I would describe as broad brush statements lacking in specificity.”(para 56)

The plaintiffs experts’, Dr. Oppenheimer and Dr. Perlman, testified that had Rhonda been born 30 minutes prior to the time she was born, she would not have suffered brain damage. Their testimony included evidence on cord compression, cord occlusion and placental insufficiency. The experts referred to medical journals that were filed as exhibits.

Justice Wilson concluded that there was “some evidence, notwithstanding the fact that it was not elaborated upon”(para 61) that the jury could found causation. The jury could have accepted the expert evidence or drawn inferences from the evidence using a “robust, liberal approach to the evidence.”(para 62).

The defence’s motion was dismissed.

Issue (2) Sufficiency of the Jury’s Answer on Causation

Justice Wilson accepted the defence’s argument that the jury’s answers to the question of causation were insufficient. The jury did not explain how the actions of the defendant obstetricians resulted in brain damage to Rhonda.

Justice Wilson, citing Sacks v. Ross, noted the the jury must “explain how the breach caused the injury” in their answer on causation (para 70).

In the Questions to the Jury form, the jury had to provide particulars of their findings on causation. For Dr. Ma, the jury answered:

If your answer 4(a) is yes, how did Dr. Ma’s breach of the standard of care cause Rhonda’s brain damage? Please provide clear and specific answers:

Dr. Ma’s failure to deliver Rhonda on April 21, 2006 due to her being IUGR, her medical history and NST results more likely than not caused her brain damage.

Justice Wilson concluded that the jury had at best conflated the issues of standard of care and causation. She blamed counsel for the plaintiffs for causing this confusion as he told jurors they could repeat the answer they provided to the question of negligence as their answer on causation.

The verdict was not entered as it could not form a foundation for judgment and a new trial was ordered.

Analysis

Juries will be hard-pressed to meet the expectations of Justice Wilson for what constitutes a sufficient answer on causation. Among the omissions from the jury’s answer, according to Justice Wilson, were a lack of reference to the “vast amount of expert evidence” on numerous issues; evidence of normal blood gases; the state of the placenta; and seizure activity. The jury also failed to explain the timing of the injury and why the caesarian section should have occurred April 18, 2006 if injury occurred in the 30 minutes before birth.

The charge and Questions to the Jury form failed to convey the need for an extensive answer. The charge asked for “clear and specific answers.” The jury’s modest one sentence answer on Dr. Samra’s causation used almost half of the seven lines allocated for the jury to write their answer. It is unclear if the court expected the jury to request foolscap to address the above issues in their answer.

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