Social Justice: Time to reform treatment of medical negligence cases

Anyone new to the legal process would be shocked to see how the civil justice system processes medical negligence litigation.

The time frame apparently necessary to resolve these cases along with the frequent appeals is shocking even to my jaded eyes.  

Two recent cases illustrate the absurdity of the current practice. The first, Ediger v. Johnston from the B.C. Supreme Court, started with a decision striking out a jury notice.

Apparently, a jury might not have been “capable of understanding the plethora of conflicting evidence and retaining that understanding for the length of the trial and into deliberation.”

It was then onto a judge-alone trial where the judge ruled in favour of the plaintiff after concluding the defendant obstetrician had breached the standard of care and that this breach had caused an infant’s brain injuries.

The Court of Appeal for British Columbia reversed the decision and dismissed the action after ruling the trial judge had erred in his causation analysis. The Supreme Court of Canada granted leave to appeal earlier this year.

Regardless of how the top court disposes of the appeal, we have the ironic situation where a judge decided a jury wasn’t up to the task of handling the action and it seems neither was the trial judge.

The second case, Fisher v. Victoria Hospital, proceeded before a judge over an eight-month period in 2004 and 2005 with a decision released in February 2007.

The trial judge concluded the hospital’s nurses were negligent in their failure to monitor the fetal heart rate for a 90-minute period during the mother’s active labour phase and that this negligence caused or materially contributed to the infant’s brain injuries.

The Ontario Court of Appeal allowed an appeal and ordered a new trial based on the trial judge’s faulty causation analysis. This error came on top of a failure to adequately consider and provide reasons for her causation findings.

The second trial took place over 12 days in late 2011 with a decision released on Feb. 14. Once again, the court declared the nurses were negligent and there was a connection between the negligence and the injuries. Once more, there’s an appeal in the case.

How many trials and appeals must plaintiffs suffer before their negligence actions come to an end? The Ediger plaintiff was born in 1998 and her Supreme Court hearing is pending. The Fisher plaintiff was born in 1991 and her second appeal is pending.

Another Ontario negligent birth case, MacGregor v. Potts, was the subject of an appeal earlier this year following a trial in 2008. The appellate decision is pending.  The MacGregor plaintiff was born in 1999.

Admittedly, this is a small sample, but I believe the cases speak to glaring problems in medical negligence law. Why does it taken an inordinate amount of time for these cases to reach final resolution? Surely, deserving plaintiffs shouldn’t be waiting a minimum of 10 years for compensation.

Why are so many medical negligence cases the subject of successful appeals or multiple trials? Lorenzo Girones, the medical negligence lawyer who handled the Fisher trial, confirms my belief that a disproportionate number of judges’ decisions are overturned on appeal.

Part of the answer relates to the aggressive tactics used by the Canadian Medical Protective Association, the body that supplies legal assistance to most physicians in Canada. But the larger answer must take into account the sheer complexity of medico-legal principles.

While the top court may clarify the causation tests and their application in the Ediger case, we’ll always be left with the difficult job of parsing complex medical evidence and sorting through conflicting expert testimony.

All of that leads me to question whether medical negligence litigation ought to remain the province of the judiciary. Surely, a panel of two judges and a physician or two doctors and a judge would provide a better forum for these difficult cases.

Of course, another approach would be to remove medical negligence cases from the zero-sum, winner-take-all adversarial approach to these tragic matters and apply a no-fault standard. But that’s the subject for another column.    

Alan Shanoff was counsel to Sun Media Corp. for 16 years. He currently is a freelance writer for Sun Media and teaches media law at Humber College. His e-mail address is [email protected].

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