An Ontario judge has refused to enter a jury’s verdict in a medical malpractice case that some plaintiff-side lawyers say could have implications for how juries answer questions on causation.
In Cheung v. Samra, Ontario Superior Court Justice Darla Wilson took the rare step of not entering a judgment after a six-member jury rendered a verdict due to what she said were problems with the way jurors handled certain questions about causation. Wilson found that the jury’s answers were “fatally flawed” and ordered a new trial be held.
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Kate Cahill, a partner with personal injury firm Thomson Rogers Lawyers, says plaintiff’s lawyer face a lot challenges in proving causation in medical malpractice cases. She says the case highlights that you cannot just ask for a jury in the hope that it will circumvent judicial review.
Cahill, who was not involved in the case, adds that in drafting their questions to a jury, lawyers need to make sure the questions clearly elicit the kind of responses they want.
The message from this on two levels is you can’t just put in a jury notice and expect there isn’t going to be judicial review of those two main issues,” she says
She says that in this case the plaintiffs seemed to over-rely on evidence that because there was an increased risk that could be linked to a bad outcome. Cahill says that, in any malpractice case, it is not enough simply to have an expert say that a breach in the standard of care caused the bad outcome.
Plaintiff’s lawyers will need the expert to explain what the mechanism of harm was and what clinical data they relied on in reaching that conclusion.
It’s not just enough to say the patient was at risk at harm and a breach of the standard of care occurred, therefore, that explains the bad outcome,” she says.
View the full article by Alex Robinson as it originally appeared in the December 3, 2018, issue of Law Times: Verdict nixed in $14.9-million medical malpractice case