Legal column: Jury verdict restored

Sometimes medical malpractice trials are done in front of a jury. Sometimes the verdict is rejected by the judge. Then the legal rollercoaster ride begins. A good example is a recent Ontario case, which has done the big drop, the corkscrew, and is now headed for the loop de loop. After the verdict was tossed by the trial judge, with whom the appeal court agreed, a higher appeal court ruled the other way and restored it. The next and final stop will be at the Supreme Court of Canada, and we’ll see what happens. The jury’s conclusion was perfectly clear: The doctors failed to do a C-section early enough, and this caused catastrophic injury to the baby in the form of hypotonic cerebral palsy. The problem was that the jury did not explain how the delay in doing a C-section caused the injury. Causation is very much a separate issue from negligence, and the annals of malpractice law are full of cases where negligence occurred, but did not cause damage, therefore the doctor was not liable. In other words, the damage would have happened anyway, regardless of the doctor’s failings. That is what the defence argued in this case. They argued the cerebral palsy had nothing to do with the delayed C-section. True, the baby was born in very poor condition. She was pale, blue, limp, had almost no heartbeat, and didn’t breathe for the first 30 minutes. However, by the time she was discharged from hospital she was able to feed by breast and bottle, her EEG and MRI results were fine, and she responded normally to sensory stimulation. The prognosis looked good. It wasn’t until two and a half months later that she suffered a seizure and was admitted to hospital, no longer able to feed independently or control her head. This, said the defence, was totally unconnected to the problematic birth. It was possibly a result of a genetic disorder. The jury preferred the plaintiff ’s argument: The baby’s brain injury was the result of oxygen deprivation immediately before birth. She had severe intrauterine growth restriction (IUGR) due to placental insufficiency, and the umbilical cord became occluded, cutting off oxygen. Because of the placental insufficiency, which had been ongoing for weeks, there was no compensatory reserve left to protect against the effects of cord occlusion. If the baby had been delivered earlier, the brain damage likely would have been avoided. The jury accepted this, but unfortunately their explanation of causation was flimsy. They simply said the failure to do the C-section earlier “put the baby at higher risk, which more likely than not caused brain damage.” There was no mention of the mechanism of injury, no reference to the expert evidence, and no explanation of the causal link between the negligence and the injury. “At best,” said the trial judge, “the jury was confused, and conflated the issues of standard of care with causation." The first appeal court agreed and ordered a new trial, but the higher appeal court restored the verdict. The fact that the jury’s explanation of causation was flimsy “did not mean that they were non-responsive or wrong or that they applied a wrong principle.” After all, the law presumes that juries understand and properly apply the instructions provided by trial judges, and that the jury’s answers are the result of a proper consideration of the evidence and the issues. Without this presumption the entire jury system would be seriously undermined. Furthermore, jurors are lay persons who cannot be expected to craft reasons with the detail expected of the judiciary. The trial judge did not specifically ask the jury to identify the “mechanism of injury,” or the sequence of events that led to the baby’s brain damage. The trial judge merely instructed the jury to explain how the negligence led to the injury, and told them they could draw an inference of causation “through the application of reason and common sense.” That is what they did. The bottom line is that the standard of review of jury verdicts is exceptionally high. A verdict should be set aside only where it is “so plainly unreasonable and unjust that no jury reviewing the evidence as a whole and acting judicially could have arrived at the verdict.” Appeal courts do not fine-comb jury answers. Rather, they give them the respect of a common sense interpretation, even where there may be some ambiguity. Juries do not write reasons for judgment, and their answers must be viewed against the background of the evidence from which they are entitled to select. They decide what is credible, what is significant, what is persuasive. With the jury verdict restored, the damage award of $14.9 million was also restored, a sum both sides had agreed to before trial. It remains to be seen whether the verdict, and the award, will survive Canada’s top court. Bill Rogers is a Toronto lawyer and writer covering medical and pharmaceutical issues.

Legal column: Jury verdict restored

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