Law Times

Law Times • march 5, 2018 Page 13 www.lawtimesnews.com Hinges on Ontario case involving multiple defendants Competing views on causation test before SCC BY SHANNON KARI For Law Times C ompeting views on whether the application of the causation test by trial courts has tipped the balance against plaintiffs in medical malpractice litigation is a central part of the written submissions before the Supreme Court of Canada on whether it should grant leave in an Ontario case involving multiple defen- dants and a delay in diagnosis. The plaintiff in Sacks v. Ross is arguing that the Supreme Court's decision in Clements v. Clements in 2012 has resulted in a "pro-defendant shift" that de- serves closer scrutiny. "The proposed appeal affords the court an opportunity to evaluate the effect on the law of causation in Canada since its re- lease," writes Shantona Chaud- hury, a partner at Pape Barristers PC in Toronto and lead counsel for the plaintiff. In response, lawyers for a To- ronto hospital, four doctors and a nurse reject the argument that plaintiffs are at a greater disad- vantage and the only outstanding legal issue is a very narrow one. "This application attempts to turn a semantic disagreement about a jury question in Ontario, arising from a per incuriam de- cision, into an occasion for this court to rewrite the law of causa- tion in medical negligence claims to be more plaintiff friendly," writes Anna Marrison, a partner at Borden Ladner Gervais LLP, who is lead counsel for the Sun- nybrook Health Sciences Centre and a nurse at the hospital. Frank McLaughlin, a partner at McCarthy Tetrault LLP and lead counsel for four doctors, says the issues are not complex nor of broader public impor- tance. "The respondents prevailed not because of some new and difficult issue in the law of cau- sation, but because the appli- cants failed to prove their case," he states in written submissions filed with the Supreme Court. The litigation stems from the outcome of routine bowel sur- gery that the plaintiff underwent in the spring of 2008 at Sunny- brook Hospital. The then-36- year-old patient suffered com- plications, and by the time they were discovered, he went into septic shock. He fell into a coma for several weeks and ultimately both legs were amputated below the knees as well as all of his fin- gertips. The plaintiff 's lawyers at trial argued that a delay in diagno- sis and cumulative errors at the hospital were the cause of the injuries. Counsel for the defendants stated that a rare f lesh-eating disease contracted by the patient that could not be immediately diagnosed was the cause and, as a result, the injuries were un- avoidable. A jury found that five of the defendants, including the hos- pital, breached elements of their standard of care; however, none of these breaches met the legal test of causation. The action was dismissed and, last fall, in a unanimous ruling, the Court of Appeal upheld that decision. Rikin Morzaria, a partner at McLeish Orlando LLP in To- ronto, says that, from the per- spective of the plaintiff side, it would be helpful to have more practical guidance on causation for cases such as those involving delayed diagnosis and multiple defendants. "I don't know if Clements was clear on how you do it" in terms of the application of the legal principles to how a jury is instructed, he notes. Both at trial and on appeal in Sacks, one of the main issues was how to word the jury ques- tion to apply the "but for" test on causation as interpreted in Cle- ments. Superior Court Justice Darla Wilson ruled that the actual phrase "but for" must be used in the jury question on causa- tion about whether the breach of the standard of care caused the plaintiff 's injuries. As well, the jury was instruct- ed that the plaintiff must prove that the negligence was a neces- sary cause of the harm. The decision in Clements also explained how it applies to cases with multiple defendants. "However it is worth observ- ing that the Supreme Court has never considered cases beyond the simple," noted Justice Peter Lauwers in the Court of Ap- peal's ruling in Sacks. "In my view, the causation doctrine prescribed by the Su- preme Court in Clements must be translated into jury-accessible language," wrote Lauwers. The phrase "caused or con- tributed to" on the question of causation to the jury was pref- erable, the Court of Appeal concluded. As well, it suggested that the word "necessary" in jury instructions with multiple defendants should not be used, because it could lead to an im- proper result when collective negligence has been proven. Despite the errors in parts of the charge and the jury question, the Court of Appeal concluded that this did not impact the ju- ry's findings on causation. One of the arguments by the plaintiff in seeking leave is that a different panel of the Court of Appeal ruled earlier last year in Surujdeo v. Melady that the strict "but for" language should be used. There is also an inconsistency in this area in other provinces, argues Chaudhury. The exact wording of ques- tions put to a jury is very signifi- cant, says Morzaria. "The semantics matter. It changes the exercise the jury is engaged in," he states. When there is evidence of "cumulative causation," the strict "but for" language as ap- plied to each defendant may be an unfair hurdle for plaintiffs to overcome, suggests Mahsa Dabirian, a partner at Bogoroch & Associates LLP in Toronto. "It is difficult to apply in a jury trial. There should be more f lexibility in the wording when there are multiple tortfeasors," she adds. The suggestion that Clem- ents has led to an unfair bar for plaintiffs to meet is not ground- ed in the evidence, says Marri- son in written submissions filed with the Supreme Court. Medi- cal malpractice cases in front of juries make up "a tiny propor- tion of civil matters" according to an academic study by Queen's University law professor Erik Knutsen (which is cited by both sides). "It is well accepted, even by commentators who criticized Clements, that the decision brought clarity to the law of cau- sation," Marrison adds. The inconsistency on the wording of the jury question in Surujdeo and in Sacks is not a sufficient reason for the Su- preme Court to grant leave, ar- gues McLaughlin. "Ontario is not, in fact, the centre of the legal universe," he writes. "The appli- cants' assertion that 'the confu- sion arising from Surujdeo and Sacks is likely to spread' is spec- ulative at best," he adds. As well, a five-judge panel of the Court of Appeal could address and deal with this inconsistency in a fu- ture case, he notes. The Supreme Court is likely to announce later in the spring if it will grant leave. LT MEDICAL MALPRACTICE Mahsa Dabirian says that when there is evidence of 'cumulative causation,' strict language applied to each defendant may be an unfair hurdle for plaintiffs to over- come. It is well accepted, even by commentators who criticized Clements, that the decision brought clarity to the law of causation. Anna Marrison Untitled-1 1 2018-02-27 8:14 AM

• Cover