Law Times

Law Times • June 25, 2018 Page 9 www.lawtimesnews.com SCC clarification hoped for in medical malpractice case BY MARG. BRUINEMAN For Law Times P laintiff personal injury lawyers are hoping that the Supreme Court of Canada will clarify the issue of causation involving multiple defendants in medical malpractice cases in a leave to appeal filed in Sacks v. Ross. At issue is a negligence claim made by Jordan Sacks, who in 2008 suffered an anastomotic leak after bowel surgery, re- sulting in bowel contents spill- ing into his abdominal cavity. According to the fall Ontario Court of Appeal ruling, discov- ery and treatment of the leak was delayed and Sacks went into sep- tic shock and fell into a coma. He then required the amputation of both legs below his knees and all of his fingertips. In the original trial, the jury found that there was breach of some elements of the standard of care but that they did not cause the injuries and the action was dismissed. In upholding the lower court's decision, the Ontario Court of Appeal listed what is required to prove malpractice in cases involving several tort- feasors. It explored the "but-for" test, which examines whether or not the injuries would have oc- curred but for the actions of the defendants. The appeal court also lay out a process on how to apply the but-for test to determine cau- sation in medical malpractice cases involving more than one person. Rikin Morzaria, a plaintiff personal injury lawyer who focuses on critical injury and wrongful death cases with McLeish Orlando LLP in Toron- to, says Sacks provides guidance for cases when a number of peo- ple are responsible for causing a problem and allows a way for the case to be presented. "It will definitely go beyond the medical malpractice scope into other situations involving multiple defendants and then, hopefully, can be catered to oth- er situations as well," he says. "The more guidance we can have and the more consistency we have in those cases moving forward on this test the better. We may still get further guid- ance from the Supreme Court on this issue and, if there's that further guidance, I think that will be welcome." The appeal court recom- mended beginning by determin- ing whether the plaintiff proved that a delay in treatment caused the injuries. If so, the next step is deciding if they proved that the delay caused or contributed to the injuries. A positive finding to that question would lead to the next question — how was the standard of care breached? The argument that several people — Sacks referred to the entire team at Sunnybrook Hos- pital — were at fault was not thought through until the ap- peal was argued, wrote Lauwers. Morzaria says plaintiff law- yers face challenges in these types of cases, depending upon the causation approach used. "The problem has always been if you start the analysis by looking at each person's incre- mental contribution you can get these very small contributions from each person that, on their own, don't appear to be suffi- cient to cause the problem," he says, even though there's an ac- ceptance by the trier of fact that delay, overall, caused by negli- gence was the cause of the harm as in Sacks. When the approach is to sim- ply examine an individual's con- tribution to the harm without looking at the global delay, the cause of the harm can't be tied to one particular defendant and so the plaintiff wouldn't be success- ful in proving systemic delay on the part of several people. The concern is the decision in Sacks is inconsistent with Surujdeo v. Melady, a case heard by anoth- er Court of Appeal panel. Surujdeo involved Rossana Surujdeo, who went to hospital with f lu-like symptoms and died about nine hours later. The cause of death was found to be a rare cardiac condition. It went before the Court of Appeal, which found that the trial judge should have worded the questions for the jury using the but-for causation test and the phrase "caused or contrib- uted" should not be put to the jury when considering causa- tion. "Lawyers going forward with jury trials are confused. One court says it has to be the but-for test and the other one says it has to be the caused or contributed test, the material contribution test," says Toronto personal in- jury lawyer Charles Gluckstein. Like Sacks, the case was not sent back for trial because the Court of Appeal found the outcome would have been the same. "[Sacks] is a very, very im- portant case and we really hope it gets clarified by the Supreme Court, because you can imagine there are so many cases in medi- cal negligence where there are more than one doctor and nurse involved, and we don't know which standard of causation is going to be applied at trial," says Gluckstein. Kate Cahill, a partner with Thomson Rogers in Toronto whose personal injury practice focuses largely on medical mal- practice, believes clarification is essential. "In the context of medi- cal malpractice cases, it's a re- ally, really important issue that needs to be sorted out because it's not uncommon in medical malpractice cases that you have multiple care providers who may have been negligent either by act or omission and on a global ba- sis caused harm to a patient," she says. LT FOCUS Your injured client needs more than a settlement. STRUCTURE IT EVERY TIME. 1.800.265.8381| www.mckellar.com Stand for the best guaranteed return for your client. Untitled-1 1 2018-06-18 9:48 AM Rikin Morzaria says a recent Ontario Court of Appeal ruling provides guidance for cases when a number of people are responsible for causing a problem and allows a way for the case to be presented.

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