In June, Canadian Lawyer spoke with Neinstein Personal Injury Lawyers’ Duncan Embury about a small but important piece of language used in medical malpractice jury trials. Duncan is not only a Partner at the firm, but also the head our Medical Malpractice Group, one the most decorated medical malpractice lawyers in Ontario, and, most recently, was recognized in the 2021 edition of Best Lawyers in Canada.

His discussion with Canadian Lawyer focused on what the magazine refers to as ‘a simple twist of language in jury questions’ that can derail otherwise well-constructed medical malpractice cases.

Historically, Embury explains, malpractice juries were asked to determine whether the defendant had breached the standard of care and whether that breach contributed to the plaintiff’s injuries. However, in 1990, the Supreme Court’s decision in Snell v. Ferrell introduced the ‘but for’ test.

“That means plaintiffs have to prove that ‘but for’ the defendant’s breach, the loss would not have occurred,” Embury said. “But in the phraseology of that you run the risk that someone will think that the breach has to be the only cause.”

The ‘but for’ question is used much less often in non-medical malpractice civil suits. Embury points out that in Donleavy v. Ultramar, a civil case involving an oil spill, the Ontario Court of Appeal decided that as long as a plaintiff can prove that a defendant’s negligence meaningfully contributed to a harm, the defendant should be found liable.

“And so when you put … that kind of legal premise together with the jury question issue, it seems, at least in my mind, abundantly clear that the question that needs to be asked of the jury is: ‘did this breach contribute in some not insubstantial way to the loss,’” Embury said. “If it did, the plaintiff is entitled to recover. We know that’s the law, because a Court of Appeal tells us it is, so then why would we not just ask the jury the very question that we need to prove?”

Last year, a trial judge agreed with this argument and asked the jury a question using the phrase ‘caused or contributed to’ rather than ‘but for.’ The jury ruled in the plaintiff’s favour. However, this approach is not yet standardized, and ‘but for’ is still commonly used in cases litigated by medical malpractice lawyers.

If you or a member of your family has been injured in a medical accident, contact Neinstein Personal Injury Lawyers today to schedule a free, no-obligation consultation. Our experienced team of medical malpractice lawyers, led by Duncan Embury, will be happy to review your claim and provide guidance, advice, and representation on your road to recovery.


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Greg Neinstein