FOCUS- Anesthetized plaintiff has onus of proof, but defendant has an edge: memory of the surgery
A recent Ontario Court of Appeal ruling could have unintended consequences for future cases.
Paul Harte, principal lawyer at Harte Law, says the decision in Armstrong v. Royal Victoria Hospital has “major implications for the medical negligence bar” and may be heading to the Supreme Court of Canada.
The case centres around whether Dr. Colin Ward was negligent during a colectomy surgery he performed in 2010 where the plaintiff, Susan Armstrong, ultimately lost her kidney following damage to her left ureter, which is a tube that carries urine from the left kidney to the bladder. The appeal court decision states “the central negligence theory” pursued against Ward was that he caused the damage by improperly using a cauterizing device.
It was agreed before the trial judge that the thermal energy from the device “is capable of damaging tissue within two millimetres.” The plaintiff lawyers argued at trial that Ward was negligent in that he either burned the ureter directly during the surgery or brought the tool too close.
Ward admitted at the first trial that Armstrong sustained damages in the amount of $1,300,000, but he refused to admit to negligence. He denied he had breached the standard of care expected of him as a surgeon, but the trial judge found otherwise.
However, on appeal, the majority disagreed, finding the “trial judge erred in law in identifying and applying the standard of care. Indeed, on the findings of fact he did make, had the trial judge applied the law correctly, he would have found that Dr. Ward is not liable.”
The finding of liability was set aside, Armstrong’s action against Ward was dismissed and $20,000 in costs was awarded to Ward.
“The majority decision of the court of appeal, in my view, is requiring the plaintiff to come up with an explanation for the specific way the doctor was negligent, which creates an imbalance between the defendant and the plaintiff where the defendant has the advantage of knowing what happened during the operation,” Harte says, noting one of the challenges for plaintiffs in surgical negligence cases is they have no direct evidence as they’re anesthetized, and it is unrealistic to expect a negligent doctor will admit they were negligent. Plaintiffs, therefore, have the onus of proof but are not able to actually prove what negligence occurred, he argues.
“The defence, if you take the majority opinion to the extreme, can simply advance what I call the ‘things happen’ defence — in a vacuum simply say, ‘I don’t know how it happened but one thing I’m sure about [is] it wasn’t me,’” Harte says. “That’s the inherent difficulty. I would say health-care professionals tend to be given the benefit of the doubt over non-professionals in these kinds of cases. The defendants have an evidentiary edge over the plaintiffs in that they know what happened.”
Jan Marin, senior associate at Gluckstein Personal Injury Lawyers and counsel for Armstrong, says she was disappointed by the decision as they were confident going into the appeal. She also has concerns about the future implications of the finding that a plaintiff needs to rule out potential non-negligent causes of injury, which she calls an onerous and unfair task.
“It was our position that if there are defences that would explain the injury, the burden to present that evidence would be on the defendant,” Marin says. “I say ‘burden’ in quotations because there isn’t a legal burden — the plaintiff has the duty to prove their case, that’s the law. I would describe it as more of a tactical burden on the defence to raise the defences, especially with respect to knowledge being solely in the hands of [the] defendant.”
Triers of fact should be able to expect that the evidence before them is the best and most complete evidence, she adds — it shouldn’t be a guessing game that there are potential other reasons that weren’t put into evidence. The court of appeal suggesting other unknown pieces of evidence need to be ruled out is an unreasonable test to which to put the plaintiff.
“There could be any number of potential other causes, but if nobody raises that evidence, you’re not going to assume a nurse bumped the surgeon’s arm, you’re not going to assume it’s an earthquake,” Marin says. “If that happened, the surgeon would raise it and it would be a complete defence and the matter would be done. But that wasn’t what the defendant himself was saying happened.”
Marin says it’s also concerning that the decision seems to say taking some of the required steps is enough to meet the standard of care versus taking all steps or being proficient in carrying out the required standard of care. The majority wrote that “Dr. Ward took the steps he described to identify and protect the ureter . . . Given this finding, the trial judge should have dismissed Ms. Armstrong’s action.” The problem with this is it fails to appreciate that the final step, staying away from the ureter, was not achieved.
“It’s concerning to say proficiency isn’t required essentially,” she says. “It is also concerning to plaintiffs that a physician could testify to, ‘I tried to take all the steps — I may not have been successful, but my intention was to take the steps.’ That could be a defence to almost anything if that decision were to hold on that basis.”
Justice Katherine van Rensburg wrote a lengthy and detailed dissenting opinion, where she outlines why she believes “the trial judge’s conclusions respecting standard of care were supported by the evidence at trial.” She, too, highlighted the problem with the idea of attempting to take steps versus ultimately achieving the goal of expected standard of care, referencing another medical negligence case involving surgery where the decision stated “there is a difference between using the appropriate technique and executing it properly.”
Harte says such a dissent is rare, especially in medical malpractice appeals.
“You normally do not see such a strong minority opinion based not really on a legal determination but on an evidentiary consideration,” he says. “At best, it’s a question of mixed fact and law.”
Marin points out that trial judges’ decisions on fact are entitled to deference and the standard for the appeal is “a palpable or overriding error of fact,” which is a high standard. If it’s an error of law, you can appeal on a correctness standard — and the appeal decision does say it’s an error of law. But she agrees that the way the dissent is written makes it clear “that essentially the way in which the majority framed the decision leads one to believe they were looking at the evidence in terms of whether it was correctly analyzed or if there was enough evidence.”
The existence of the dissent was a comfort to Marin that it wasn’t out of the realm of possibility to think her case would be successful.
“It does speak to the nature of the case — the judges themselves couldn’t agree,” she says. “It wouldn’t be crazy for either of the parties to believe they were right because we were each able to convince someone on the Court of Appeal — these experienced, senior jurists — that our argument was correct.”
Harte calls the outcome frustrating for both parties in that it was essentially a true split decision — a trial judge and an appellate judge who believe there was negligence and two appellate judges who believe there wasn’t negligence — on a factual determination. He “very much favours the minority’s view,” arguing that, stepping away from medical malpractice and taking a general perspective, the law has never required a plaintiff to prove exactly how a defendant was negligent, just that the defendant was negligent.
“Plaintiffs shouldn’t be handicapped because the exact step that wasn’t taken or the exact mechanism that caused the harm can’t be known if these things simply don’t happen in the absence of negligence,” he says. “Unless the defendant has some explanation as to why they exercised due care but it still happened, then the plaintiff should succeed.”
He says he’s “concerned there’s a body of law being developed that gives a break to medical defendants that wouldn’t be given to other defendants.”
Every once in a while, the SCC will take a case on the basis of justice, and its ruling on this issue would be “enormously helpful,” Harte says, because the medical malpractice plaintiff and defence bar need to know if the test laid out in Armstrong is the correct one. If it is, he predicts plaintiff medical malpractice lawyers will stop taking these cases. But what’s happening right now is an ongoing uncertainty.
“It’s uncertainty for patients, it’s creating litigation, it’s very expensive and, at the end of the day, it’s all largely funded by public health dollars,” Harte says. “It doesn’t help either side to have ambiguity. In this case where you’ve got a dissenting opinion, there’s a chance — I wouldn’t say a great chance, but a chance — the SCC would hear it.”
