Seeking Fairness for Victims of Medical Malpractice

Reporter Sheryl Ubelacker reported on October 26, 2016 that 1 in 18 Canadian hospital patients experience harm from preventable errors (Read more).

Ms. Ubelacker reports on a study that 138,000 Canadians admitted in a Canadian hospital in 2014-2015 suffered some kind of harmful event that could potentially have been prevented. Of these 138,000 patients, the study finds that more than one adverse event compromised their care.

Unfortunately, the Canadian civil justice system has not been kind to those injured by medical errors. Eric S. Knutsen, a professor at Queen’s University Faculty of Law, wrote a paper, The Medical Malpractice Landscape in Ontario: Fact, Trends and Analysis of Trials and Appeals (2017, 47 Advocates Quarterly 131), in which he analyzed the data about medical malpractice trials and appeals in Ontario.  The results are sobering. From 1992 to 2016, patients in Ontario were only successful in about 30% of medical malpractice judge alone trials. At the Court of Appeal, physician succeeded in 37% of their appeals, while patients were only successful in 12% of their appeals. A recent case from the Ontario Court of Appeal, Sacks v. Ross, 2017 ONCA 773 exemplifies the unfairness of our current justice system to those injured my medical negligence.

On May 13, 2008, Jordan Sacks, who suffers from Crohn’s disease, went to Sunnybrook Hospital for a routine surgery called a hemicolectomy. A hemicolectomy is a surgery in which a portion of the bowel is surgically removed and the remaining ends tied together. Jordan was 36 years old at the time. Other than Crohn’s disease and colonoscopy that had revealed a narrowing of the colon, which exposed him to possible future bowel obstruction, he was healthy. Jordan was told by his doctors that he should be home from the hospital in 5-7 days. Tragically, he spent more than 5 months in the intensive care unit (ICU) and suffered amputations to all ten fingertips and both legs below the knee. Jordan developed an anastomotic leak post-surgery. The leak went unrecognized and untreated for nearly 36 hours. By the time the leak was recognized he was in septic shock.  Jordan and his family members brought a legal action against the doctors and Sunnybrook Hospital.

The plaintiffs’ alleged that his treating doctors and nurses were negligent in failing to promptly diagnose and treat the infection, which ultimately resulted in the amputations of his fingers and legs. The defendants argued that there was a non-negligent cause of his injuries – an undetected retroperitoneal necrotizing fasciitis infection that developed in Jordan’s lower back as a result of the anastomotic leak and unrelated to any delay in treatment.

After a lengthy trial, the jury returned a verdict that found that five defendants had breached the standard of care, i.e. were found negligent in Jordan’s care. BUT, notwithstanding the findings of negligence against the five defendants, the jury found that no one individual defendant’s negligence was the cause of Jordan’s injuries. The case was dismissed and Jordan received no compensation. Jordan appealed the verdict arguing to the Ontario Court of Appeal that the trial judge had not properly instructed the jury on the issue of causation. The Court of Appeal agreed that the trial judge made an error in his instructions to the jury on the question of causation. The Court of Appeal in Sacks v. Ross, held that the question to the jury on causation, should have included the phrase, “caused or contributed”, which would help the jury understand the causation requirement in the context of the case. The Court of Appeal stated that there is nothing in the phrase, “caused or contributed” that conflicts with the well-known, “but for” test. While the Court of Appeal held that the trial judge erred in the question to the jury on causation, the panel ruled that if the proper question had been asked, the result would have been the same and dismissed Jordan’s appeal. Jordan has appealed to the Supreme Court of Canada.

Interestingly, a different panel of judges at the Ontario Court of Appeal had months before Sacks v. Ross, decided in Surujdeo v. Melady that the phrase, “caused or contributed” should not be put to the jury when considering causation. In that case, the Ontario Court of Appeal (per Strathy C.J.O., Pardu and Brown J.J.A.) held that a jury must only consider the “but for” test on causation and not use the phrase, “caused or contributed”.

The Supreme Court of Canada has the opportunity to reconsider the issue of causation and clarify the Court’s “but for” test from its seminal decision in Clements v. Clements, 2012 SCC 32. The decisions of Sacks and Surujdeo show that our courts are struggling to understand and apply the causation instructions from Clements. For injured plaintiffs, particularly, those injured by medical negligence, I hope that the Court will provide clear direction to our trial courts that a more flexible approach on causation is the law. This should help ensure greater fairness and legitimate compensation for those seriously hurt by medical negligence.

Kris Bonn
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Kris focuses on helping people who have suffered serious personal injuries, car crash victims and long-term disability claims. Kris also helps people who are facing impaired driving and over 80 related criminal charges. Kris has successfully argued cases before juries, judges and the Court of Appeal in Toronto. Kris is active in the community as a Director of the Ontario Trial Lawyers Association and the local Brain Injury Association Quinte District. He is a member of the Hastings County Law Association and the Advocates Society. He supports local charities, including the Trenton and Belleville Hospital Foundations.