Law Times

Page 10 March 14, 2016 • Law TiMes www.lawtimesnews.com Ruling highlights role of judges in civil jury trials BY YAMRI TADDESE Law Times A recent medical malprac- tice trial that ended in the plaintiff 's favour raises important issues around the role of judges in civil jury trials, ac- cording to the defendant's notice of appeal. It's rare for medical malpractice cases to go to trial, and even more unusual for plaintiffs to win. Ac- cording to the Canadian Medical Protective Association, there were 85 judgments in favour of physi- cians in 2014, versus just 26 judg- ments in favour of plaintiffs. But in a recent case, a civil jury found in favour of a man who sued doctors after his wife went to hospital with f lu-like symptoms and died about nine hours later. It was later determined that the woman, Rossana Surujdeo, had a rare and aggressive form of viral myocarditis — a viral infection that attacks the heart. In their notice of appeal, the de- fendants says the finding must be overturned, arguing that, among other things, Superior Court Justice Arthur Gans improperly charged the jury. "The trial judge erred by approving questions to the jury regarding causation that unfairly favoured the respondent," reads the notice of appeal. In Surujdeo v. Melady, the jury found the patient could have received the treatment she needed had two doctors, Donald Melady and Avrum Soicher, not breached the standard of care in a number of ways. The jury found those breaches were "a cause" of Suru- jdeo's death. The question the trial judged posed to the jury was whether the plaintiff had established, on a bal- ance of probabilities, that the doc- tors' breach of the standard of care was "a cause" of Surujdeo's death. The appellant doctors are taking issue with the inclusion of those words without any qualifiers. "By proposing and ultimately approving inclusion of the words 'a cause,' the trial judge incorpo- rated one limited aspect of the jurisprudence regarding causa- tion which is favourable to the respondent – that the defendant's breach of the standard of case need not be the only cause of the plaintiff 's injury," says the notice of appeal. "The trial judge refused to in- corporate the related and quali- fying jurisprudence." The issue of causation in medical malpractice is among "the most legally challenging concepts in law," according to Richard Bogoroch, counsel for Indernil Surujdeo and other plaintiffs in the case. Bogoroch declined to discuss the case, citing that it is still before the courts. He did say, however, that the data from CMPA un- derscores the difficulty and com- plexity of medical malpractice lit- igation. It also underscores "how important these cases are to take to trial," says Bogoroch, a medical malpractice lawyer at Bogoroch & Associates LLP. "What is im- portant for us as a firm is that we are able to provide access to jus- tice for litigants because, without lawyers willing to take on these cases, people will not be able to get their day in court." The case ultimately deals with the evidentiary burden necessary to establish a causal relationship between injury to patients and al- leged breach of standard of care by physicians. After the jury deliber- ated for three days and delivered a verdict, lawyers for the doctors brought a motion to dismiss the action without costs. The judge, however, dismissed the motion and entered the jury's conviction. Christopher Hubbard, who is acting for the doctors, says the case is "interesting," but "my practice is not to comment on any of my cases while they're still ongoing," he says. According to the notice of appeal, there is no evidence Su- rujdeo would have received the necessary treatment in time but for the lack of diagnosis by the doctors involved. "The jury made no finding that the patient likely would have received the mechanical heart support she required within the limited time available," the no- tice of appeal reads, adding the patient would have had to be transferred to a different hospital with a cardiac surgical centre to receive mechanical heart support the morning of Feb. 21, 2005. According to the notice of appeal, the closest form of me- chanical heart support was an intra-aortic balloon pump at the Trillium Health Centre in Mis- sissauga, Ont., which is approxi- mately 22 kilometres away from William Osler Health Centre in Brampton, Ont., where the pa- tient was admitted. It argues that even that device would not have been sufficient in Surujdeo's case — she required a ventricular assist device, which was only available at Toronto General Hospital and "was in high demand." "In the jury's answers, there is absolutely no mention of me- chanical heart support in gen- eral, or an intra-aortic balloon pump or ventricular assist de- vice in particular," the notice of appeal adds. "The jury's answer regard- ing causation are so plainly un- reasonable and unjust that they should be set aside, and this ac- tion should be dismissed." According to Gans, the jury did not need scientific evidence of the precise contribution the de- fendants' negligence made to the patient's injury. The judge said the jury could decide based on "ro- bust common sense," as stated in Clements (Litigation Guardian of) v. Clements. "For purposes of the mat- ter now in issue before me, I am of the view that there was some evidence, taken as a whole, which would permit the jury to con- clude that Mrs. Surujdeo would likely have received some form of mechanical assistance in another institution during maximally a 10 hour window," Gans said. LT FOCUS Check out lawtimesnews.com for insight from our regular online columnists Monica Goyal discusses the latest gadgets and trends in legal technology in Bits & Bytes YOUR ADVANTAGE, in and out of the courtroom. TF: 1.888.223.0448 T: 416.868.3100 www.thomsonrogers.com Since 1936 Thomson, Rogers has built a strong, trusting, and collegial relationship with hundreds of lawyers across the province. As a law firm specializing in civil litigation, we have a record of accomplishment second to none. With a group of 30 litigators and a support staff of over 100 people, we have the resources to achieve the best possible result for your client. Moreover, we are exceptionally fair when it comes to referral fees. We welcome the chance to speak or meet with you about any potential referral. We look forward to creating a solid relationship with you that will benefit the clients we serve. Every time you refer a client to our firm, you are putting your reputation on the line. It is all about trust well placed. TRUST Thomson, Rogers Lawyers ROBERT BEN | DAVID MACDONALD | IAN FURLONG Untitled-5 1 2016-03-09 9:09 AM E. V. Litigation & Financial Services Inc. Elaine G. Vegotsky, CMA, CFE, CFI Assisting you in Litigation & Forensic Accounting, Financial Investigations x a F r o e n o h p e l e T 0 0 9 e t i u S 0 7 3 1 - 0 3 9 ) 6 1 4 ( , t s a E e u n e v A d r a p p e h S 5 4 Willowdale, Ontario M2N 5W9 (905) 731-5812 evlitigation@rogers.com E. V. Litigation & Financial Services Inc. Elaine G. Vegotsky, CMA, CFE, CFI Assisting you in Litigation & Forensic Accounting, Financial Investigations x a F r o e n o h p e l e T 0 0 9 e t i u S 0 7 3 1 - 0 3 9 ) 6 1 4 ( , t s a E e u n e v A d r a p p e h S 5 4 evlitigation@rogers.com Toronto, Ontario M2N 5W9 (905) 731-5812 CFA, CPA, Vlit_LT_Mar10_14.indd 1 14-03-04 10:18 AM Richard Bogoroch says the issue of causation in medical malpractice is among 'the most legally challenging concepts in law.'

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