A recent Ontario Court of Appeal could have significant implications on future medical malpractice cases, particularly those involving delayed diagnosis and multiple defendants, Law Times reports. The ruling, which medical malpractice lawyers anticipated keenly, centred on how trial judges frame questions to their juries.

The case, Sacks v. Ross, involved a plaintiff who lost limbs to amputation following a bowel surgery and delayed diagnosis. The plaintiff’s claims against several physicians and the hospital were denied by a trial jury. Counsel for the plaintiff appealed the ruling on the basis that the judge applied the wrong causation test to the case and asked the jury the wrong questions.

This argument is part of an ongoing dispute between defence- and plaintiff-side lawyers over jury questions in cases with multiple defendants. Defence lawyers believe juries should be asked to decide whether defendants “caused” the injuries; plaintiff lawyers argue they should determine whether defendants “caused or contributed” to them.

The Court of Appeal’s decision sought to “settle that debate in favour of using the language of ‘caused or contributed,’” Brooke MacKenzie, a lawyer for the plaintiff, told Law Times. The ruling could be a coup for medical malpractice lawyers who argue this very specific type of lawsuit.

Despite siding with the plaintiff on the issue of jury questions, however, the Court of Appeal stated that the jury in Sacks v. Ross had clearly accepted the defence’s arguments and that their ruling should not be overturned.

The ruling lies in direct conflict with the Court of Appeal’s decision in Surujdeo v. Melady, also resolved in 2017.

“We now have two conflicting decisions in the Ontario Court of Appeal, literally on the same jury questions, which I think is going to create great confusion in the future,” said Gavin MacKenzie, another lawyer for the plaintiff.

“There is a lack of certainty there,” added defence lawyer Anna Marrison. “Time will tell whether the court comments on causation are applicable only to jury trials or more broadly to all civic trials.”

This lack of clarity could have major repercussions for the victims of delayed diagnosis. Indeed, the medical malpractice lawyers in Sacks v. Ross believe the outcome of their case might have been different had the jury question contained the words “caused or contributed.” This issue will likely be decided by the Supreme Court of Canada in the future, though it remains unclear whether the plaintiff in Sacks v. Ross has any interest in pursuing another appeal.

If you or a member of your family has experienced harm as a result of delayed diagnosis or any other form of medical malpractice, contact the medical malpractice lawyers at Neinstein Personal Injury Lawyers today to arrange a free, no-obligation consultation. Our team can help you access compensation and advance your recovery.


Image credit: Padraic Ryan/Wikimedia Commons

Greg Neinstein