Law Times

Law Times • march 6, 2017 Page 13 www.lawtimesnews.com medical malpractice Lawyers and judges shouldn't underestimate jurors Plaintiffs in medical malpractice cases prefer juries BY MICHAEL MCKIERNAN For Law Times P laintiff-side lawyers in medical malpractice cas- es are keeping the faith with civil juries even as their personal injury cousins in the motor vehicle litigation arena lose theirs. Personal injury lawyers rep- resenting accident victims have periodically called for reform to the civil jury system in this prov- ince, which allows one party to force a jury trial over the objec- tions of another, unless they can show the case is too complicated for lay people to handle. Some have even advocated for an end to jury trials altogeth- er due to the perception that they tend to favour insurers. And late last year, in the case of Mandel v. Fakhim, Ontario Superior Court Justice Fred- erick Myers commented in his decision that " jury trials in civil cases seem to exist in Ontario solely to keep damages awards low in the interest of insurance companies, rather than to fa- cilitate injured parties being judged by their peers" after a jury awarded a man just $3,000 in damages for physical and emotional injuries for which he had sought $1.2 million. But it's a different picture in medical malpractice, accord- ing to Barbara MacFarlane, a partner at Toronto firm Torkin Manes LLP who acts mainly for injured patients and their families. If anyone prefers juries, it's the plaintiffs, she says, not- ing that she can't remember a case where a doctor or hospital served a jury notice on her client. "I know there is talk in the personal injury bar of doing away with juries, but I'm very much in favour of keeping them," says MacFarlane, the head of her firm's medical mal- practice group. "In my experience, they bring a common-sense approach to the issues and a sense of com- munity values and standards. "They are also very thought- ful and take their role extremely seriously." According to Richmond Hill, Ont. lawyer Paul Harte, medical malpractice lawyers benefit from a little extra dis- tance from mass marketing lawyers, as well as the fact that their juries are usually required to rule on more than simply the level of damages. Harte says the nature of medical malpractice cases, com- bined with the hardline strat- egy of the Canadian Medical Protective Association, which funds doctors' legal defence, of- ten keeps liability in issue right up to trial. In many cases, Harte, a med- ical malpractice lawyer, says he will opt for a civil jury over trial by judge alone when it comes to liability. "Of course, it depends on the judge, but I do believe that juries tend to hold doctors to a higher standard than judges," he says. "Judges, I think, sometimes have a little bit more empathy for doctors because they see them as kind of peers, which means they may be inclined to cut them a bit more slack. Juries are less deferential on a profes- sional basis." Traditionally, jury trials were more difficult to get in medi- cal malpractice cases due to the complexity of the evidence, ac- cording to Anna Marrison, who acts mainly for health care staff and their employers. "Ten years ago, it was com- mon for counsel on all sides to say that these cases were inap- propriate for a jury, but that thinking has changed over time," says Marrison, a partner in the Toronto office of Borden Ladner Gervais LLP. "I've been very impressed by juries' ability to closely pay at- tention and understand highly complex medical evidence." That trend accelerated in 2015 after the Ontario Court of Appeal issued its judgment in Kempf v. Nguyen, ordering a new trial in a personal injury case due to a wrongly dismissed jury. "In addition to the wis- dom of their collective life ex- perience, a jury would bring to this action, as juries always do, a ref lection of societal values," wrote Ontario Appeal Court Justice Gloria Epstein in her ma- jority opinion. "The decision has limited the opportunities to strike the jury notice, so we are seeing even more jury trials," Marrison says. MacFarlane says lawyers and judges should not underesti- mate jurors' ability to compre- hend and evaluate the kind of technical evidence that comes up in medical malpractice suits. "In this day and age, lay peo- ple have more access than ever to medical information," she says. "In my view, a properly in- structed jury is in as good a po- sition as any trial judge to decide the issues." Still, MacFarlane makes an effort to tailor her presentation to her audience when arguing before a jury. "You have to be creative in how you explain things to them, by putting it in a way they can understand as opposed to going into all kinds of medical jargon. "Although, quite honestly, I'm not sure judges want to hear all the medical jargon either," she says. "It's not all that difficult, be- cause I have to learn the medi- cine myself to present the case, so I can just think about what works for me." Harte uses focus groups to test how arguments, question- ing and visual aids he intends to use at trial go down with normal members of the public without legal or medical training. "We never do a significant jury trial without one or more focus groups. You learn so much about your case," he says. "As the lawyer who's been sit- ting with a case for four or five years, you can't always see the forest for the trees. Focus groups pick up on things you wouldn't have thought of in a million years." LT Paul Harte uses focus groups to test how arguments, questioning and visual aids he intends to use at trial go down with normal members of the public without legal or medical training. 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 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. 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. DARCY MERKUR | SLOAN MANDEL | DEANNA GILBERT Untitled-6 1 2017-02-28 4:10 PM Fresh Ontario legal news and analysis Get More Online LawTimesNews.com

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