Court of Appeal for Ontario
Citation: Sacks v. Ross, 2017 ONCA 773 Date: 2017-10-05 Docket: C61542
Lauwers, Hourigan and Benotto JJ.A.
Between
Jordan Sacks, Lisa Sacks, Ryan Sacks, by his Litigation Guardian Lisa Sacks, Alexis Sacks, by her Litigation Guardian Lisa Sacks, Emma Sacks, by her Litigation Guardian Lisa Sacks, Michael Sacks and Annette Sacks
Plaintiffs (Appellants)
and
Theodore Ross, Aliyah Amirali Kanji, Anna Maureen Bendzsak, Jeffrey Singer, John Doe I, John Doe II, Pamela Raye-Ilogu, X. Li, T. Hollowitch, Jane Doe I, Jane Doe II and Sunnybrook Health Sciences Centre
Defendants (Respondents)
Gavin MacKenzie and Brooke MacKenzie, for the appellants
Frank McLaughlin, Dorothy E. Charach and Ljiljana Stanic, for the respondents Theodore Ross, Aliyah Kanji, Anna Maureen Bendzak and Jeffery Singer (the "respondent physicians")
Anna L. Marrison, William D.T. Carter and John M. McIntyre, for the respondents Sunnybrook Health Sciences Centre, Pamela Raye-Ilogu and X. Li (the "respondent hospital")
Heard: May 17, 2017
On appeal from the judgment of Justice Darla A. Wilson of the Superior Court of Justice, sitting with a jury, dated December 7, 2015.
Lauwers J.A.
A. Overview
1This was a jury trial of an action for medical negligence. Jordan Sacks (who appeals along with his wife Lisa, his children Ryan, Alexis and Emma, and his parents Michael and Annette), suffered serious injuries arising from complications after routine bowel surgery. An anastomotic leak occurred after the surgery, spilling bowel contents into Mr. Sacks's abdominal cavity. (It is not argued that the leak was the result of negligence.) An anastomotic leak must be treated quickly to prevent infection, sepsis and septic shock, but the discovery of the leak was delayed. By the time treatment started, Mr. Sacks was in septic shock. He was then in a coma for weeks and ultimately required amputation of both legs below his knees and all of his fingertips. These were horrifying injuries.
2At trial, the appellants asserted that the delay in diagnosis and treatment caused Mr. Sacks's injuries, and was the result of cumulative errors made by the respondents, a team composed of doctors and nurses who treated Mr. Sacks after surgery, along with Sunnybrook Hospital. Their negligence caused his injuries.
3The respondents answered that any delay in diagnosis and treatment did not cause Mr. Sacks's injuries. The delay was not material to the outcome because Mr. Sacks contracted a rare, unrecognized aggressive necrotizing infection (flesh eating disease) in his right lower back, which could not have been diagnosed or treated when it first arose. His injuries were unavoidable and not the result of anyone's breach of a standard of care.
4While the jury found five of the defendants breached elements of their respective standards of care, they did not find that any of the breaches caused the injuries at issue. The action was dismissed.
5According to the appellants, the trial proceeded on a mistaken understanding of the appropriate causation test to be applied in a case of delayed diagnosis and treatment. This mistake was reflected in the jury questions and instructions. Accordingly, the jury's answers were ambiguous and could not form a safe basis for judgment.
6The respondents submit, to the contrary, that the trial judge did engage the correct causation test and formulated appropriate jury questions and instructions. The jury had before it two clearly opposed explanations of causation, and simply found the evidence and the arguments advanced by the respondents to be more persuasive. The jury's answers were clear and not ambiguous.
7This appeal concerns the proper test for causation in delayed diagnosis medical negligence cases involving multiple tortfeasors. The appellants submit that in such cases this court should require trial judges to use a "global but for" test for causation. The respondents vigorously resist the imposition of a "global but for" test, which they describe as a novel test for causation. They say that the positions taken by the appellants in the court below preclude the relief sought on appeal.
8I would dismiss the appeal. In my view the jury clearly and unambiguously accepted the defence evidence on the cause of Mr. Sacks's injuries. As I will explain, while I agree with the appellants that the jury questions and instructions were problematic, the deficiencies in them did not affect the outcome.
B. Procedural Issue
9The respondents correctly point out that this court is reluctant to consider new arguments on appeal: Kaiman v Graham, 2009 ONCA 77 at para. 18. They argue that the appellants' trial counsel at no time argued that the jury should be asked a causation question globally in relation to all defendants. Nor did he raise this concern after reading the trial judge's draft jury charge or hearing the charge.
10However, I engage with the "global but for" test issue in this appeal, for two reasons. First, from the outset the underlying question in this case was how to apply the "but for" test in cases of delayed medical diagnosis and treatment involving multiple defendant tortfeasors. This question was incompletely argued before the trial judge but the approach taken on appeal is no surprise. The appellants pursued the case at trial on the basis that the entire team at Sunnybrook Hospital was at fault. As trial counsel stated at the outset of his jury address jury:
Based on the evidence I'm going to suggest to you that this represents a total failure of the entire healthcare team and all of its members in parts. It is a total systems failure.
The implications of this approach were not thought through until this appeal where it was fully argued.
11Second, cases that engage jury questions, jury instructions and the causation test involving multiple tortfeasors do not often come to this court. In my view, this court has a responsibility to consider the issues and to provide assistance to trial judges and counsel in such cases going forward.
C. The Facts
12In 2008, Mr. Sacks was a 36 year old married accountant who had Crohn's disease but was otherwise in good health. A colonoscopy had previously revealed a narrowing of his bowel, which exposed him to the future risk of an obstruction. Mr. Sacks decided to have a hemicolectomy, an elective surgery that would remove the narrowing. He waited until after tax season to have the procedure performed by Dr. Theodore Ross, who was acquainted with the family of Mr. Sacks's wife Lisa.
13The development of an anastomotic leak, in which the sutures holding the ends of the bowel come apart and stool leaks into the abdominal cavity, is a recognized complication of a hemicolectomy and occurs in 2-5% of cases. It can be life threatening. The large quantity of bacteria in stool can be a source of infection that can, if not promptly treated, progress to sepsis, severe sepsis and ultimately septic shock. If a leak occurs, it is essential to control the source of infection as soon as possible.
14Symptoms of anastomotic leak include abdominal distention, abdominal pain, shoulder pain, an increase in heart rate (tachycardia), a decline in blood pressure (hypotension) and variability in white blood cell count.
15The surgery was performed on May 13, 2008 at Sunnybrook Hospital by Dr. Ross, assisted by Dr. Anna Bendzsak, a senior resident, and Dr. Aliyah Kanji, a junior resident. There were no surgical complications and Mr. Sacks's recovery was uneventful for the first two days.
16Mr. Sacks's condition started to deteriorate on May 16, 2008. At 7:50 am, he complained to Nurse Pamela Raye-Ilogu of abdominal distention, and he remained distended throughout the day. His white blood cell count was 9.5, within a normal range. At 12:50 pm, Mr. Sacks complained of abdominal pain. On a scale of one to ten, with ten being the patient's "worst pain", Nurse Raye-Ilogu recorded the pain as an eight while resting and ten while moving. She gave Mr. Sacks pain medication.
17At 4:30 pm, Nurse Raye-Ilogu informed Dr. Bendzsak and Dr. Kanji of Mr. Sacks's severe ("+++") shoulder pain. This was the first time Nurse Raye-Ilogu contacted a doctor about Mr. Sacks's pain since starting to care for him on May 14. At 4:40 pm, Dr. Kanji, under the supervision of Dr. Bendzsak, prescribed morphine. Dr. Kanji also ordered a complete blood count "NOW please", to check for a possible infectious process and other possible issues.
18Anastomotic leak was part of the differential diagnosis of Dr. Kanji and Dr. Bendzsak. Several of the defendant doctors testified that if there were a specific concern about infection, they would want to know as soon as possible, and would want the blood results as soon as possible. At trial, Dr. Kanji testified that the bloodwork order was not made specifically to identify possible infection, but it could be identified by the bloodwork.
19Nurse Raye-Ilogu entered Dr. Kanji's request in the hospital computer at 5:08 pm as a "STAT" order, called the lab to inform them of the order, and recorded it in the chart. STAT bloodwork results are ordinarily available within one hour. Dr. Kanji testified that the "NOW please" order was specifically intended not to be a "STAT" order. Nurse Raye-Ilogu explained that she entered the order as a "STAT" order because "STAT" was the closest approximation of "NOW please" that was available in the computer system.
20Nurse Raye-Ilogu went off duty at 7:30 pm. She informed Nurse Xia Li, who was assuming Mr. Sacks's care, about the bloodwork order. Dr. Kanji also went off duty at 7:30 pm and did not check to see whether the results of the bloodwork order were available. She discussed Mr. Sacks with Dr. Bendzsak, who would be assuming his care. Dr. Kanji expected the doctors on duty overnight to follow-up on the bloodwork order.
21Mrs. Sacks saw Mr. Sacks during the day and evening of May 16. She was concerned and called Dr. Ross at home about Mr. Sacks's deteriorating condition. Dr. Ross came in to the hospital around 7:30 or 8:00 pm and examined Mr. Sacks. He spoke to Dr. Bendzsak but did not recall checking the chart, speaking to Nurse Li or checking the status of the bloodwork order. He made no notes of his examination in the chart. He told Mrs. Sacks that Mr. Sacks's pain could be typical and they should wait until the next day to see what would happen.
22At 8:00 pm, Nurse Li examined Mr. Sacks. He was slightly tachycardic and his blood pressure was lower than the normal range. She did not report Mr. Sacks's vital signs to a doctor. He was still in pain and Nurse Li administered morphine.
23The results of the bloodwork ordered by Dr. Kanji were entered into the hospital's computer system at 9:51 pm, four and a half hours after being ordered. The delay was inconsistent with hospital policy, and was not reported to the floor or to the requesting physician, also contrary to the policy. The lab result showed that Mr. Sacks had a white blood cell count of 1.8 – a result considered abnormally low and for which a confirmatory test was usually done to ensure its accuracy. It was entered in the computer as "CRITICAL" and marked in red. However, the critical result was not reported by the lab to the ward or the ordering physician.
24A hospital witness explained that even though the result was marked as "CRITICAL" in the system, the result was not actually critical at the campus of the hospital where Mr. Sacks was being treated. The computer system was shared by various campuses with different criteria for what constituted "critical". Mr. Sacks's result was considered critical at a different campus but not the campus where he was being treated.
25Dr. Giacomantonio, an expert witness called by the plaintiffs, testified that the significant drop in the white blood cell count was a finding that should have raised alarms about infection, and ultimately, sepsis.
26Neither Dr. Bendzsak nor Nurse Li followed up on the blood result overnight even though they were both on duty. Mr. Sacks complained of back pain for the first time in the early morning hours of May 17. Nurse Li called Dr. Jeffery Singer, a junior resident, to assess Mr. Sacks. Dr. Singer thought the back pain might have been the result of Mr. Sacks being immobile in a hospital bed and prescribed a muscle relaxant and sedative. Dr. Singer did not talk to Dr. Bendzsak or become aware of the bloodwork results.
27Dr. Ross returned to the hospital before 9:00 am for morning rounds. Dr. Bendzsak went off duty at 9:00 am and turned Mr. Sacks's care over to Dr. Ross. Around this time, both Dr. Bendzsak and Dr. Ross learned about the bloodwork results indicating a low white blood cell count. Dr. Ross was "certainly concerned [Mr. Sacks] had an infection". Dr. Ross ordered STAT bloodwork. The results came back at about 10:50 am confirming the low white blood cell count. His blood pressure dropped further. Dr. Ross then believed that Mr. Sacks had an infection.
28Based on these results, Dr. Giacomantonio testified that the only possible conclusion a surgeon could then draw was that Mr. Sacks was septic because of an anastomotic leak, and the operating room should have been the next stop.
29However, Dr. Ross ordered a STAT CT scan. He testified that although he believed Mr. Sacks had an infection in the morning, he wanted to identify the source of the low white blood cell count before proceeding with treatment. He did not start antibiotics until 4:00 pm because he first wanted to identify the source of the infection and control it, treatment which the antibiotics would supplement.
30The CT scan was not performed until approximately 3:00 pm. Only one of the hospital's four CT scanners was running because of reduced staffing levels on the weekend (and only three were operational at the time). The CT scan confirmed the anastomotic leak.
31Mr. Sacks was taken to the operating room to repair the leak by 5:05 pm. He was in septic shock. He underwent surgery from 5:29 pm to 6:55 pm to repair the leak and wash out the peritoneal cavity. There was gross contamination in the belly.
32Mrs. Sacks went home at 10:00 pm. She received a call at 1:30 am from Mr. Sacks's mother at the hospital. Mrs. Sacks returned to the hospital and was told that Mr. Sacks might not make it through the night. He was very ill for the next new few days.
33Mr. Sacks went into kidney failure and required multiple surgeries over the next few months. Some of his tissues became necrotic and he developed compartment syndrome. He was in a medically induced coma for three months. Ultimately, amputation of both of Mr. Sacks's legs below the knee and all ten fingertips was required.
34Mr. Sacks was in the hospital from May until November 2008, and in a rehabilitation centre until March 2009.
D. The Issues
35What caused Mr. Sacks's injuries? This was the core factual issue at trial. There were competing expert explanations. The appellants' explanation was that the delay in diagnosing and treating the anastomotic leak caused Mr. Sacks's injuries. In order to control his low blood pressure he was given powerful vasopressors which, in combination with the sepsis, led to the need for the amputations.
36As noted, the respondents' explanation was that the delay was not material to Mr. Sacks's outcome because he contracted a rare, unrecognized aggressive necrotizing infection in his right lower back (retroperitoneal – "RPN" or "RPNI"), which could not have been diagnosed on May 17. As a result, his injuries were unavoidable and not the result of anyone's breach of a standard of care.
37These competing explanations of the cause of Mr. Sacks's injuries faced the jury, and informed both the jury questions and the jury instructions.
38There are three general issues:
Did the trial proceed on a correct understanding of causation in negligence cases?
Were the jury questions and the jury instructions on causation legally correct?
Did any legal error in the jury questions or the jury instructions deprive the appellants of a fair trial?
I address these in turn.
E. Issue One: Did the trial proceed on a correct understanding of causation in negligence cases?
39The common law feels its way on a case by case basis recognizing that judges are not omniscient. A carefully formulated legal proposition that works justice in a specific case might later be found, in the light of different facts, to be over-inclusive or under-inclusive, or as otherwise flawed or inadequate. The paradoxical genius of the common law is that, on principle, the process of refinement and adaptation is interminable.
40The doctrine of causation in negligence is a signal example. As McLachlin C.J. observed in Resurfice Corp. v. Hanke, 2007 SCC 7, at para. 20: "Much judicial and academic ink has been spilled over the proper test for causation in cases of negligence." The Supreme Court's decision in Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181 ushered in another wave of ink.
41In picking through the law relating to causation in negligence actions, there is some conceptual clarity to be gained by distinguishing between simple negligence cases involving a plaintiff and a single defendant, and complex cases involving multiple tortfeasors.
(1) Simple Negligence Actions
42The paradigm negligence case is one in which a single defendant is alleged to have negligently done something that caused the plaintiff's injury. To succeed the plaintiff must prove both the defendant's breach of the standard of care and causation.
43The current state of the law regarding causation in negligence cases was set out by McLachlin C.J. in Clements at para 8:
The test for showing causation is the "but for" test. The plaintiff must show on a balance of probabilities that "but for" the defendant's negligent act, the injury would not have occurred. Inherent in the phrase "but for" is the requirement that the defendant's negligence was necessary to bring about the injury -- in other words that the injury would not have occurred without the defendant's negligence. This is a factual inquiry. If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against the defendant fails. [Emphasis by McLachlin C.J.]
44The determination of causation is understood as a factual inquiry. In all instances of determining causation, Professor Russell Brown (as he then was) observed that the trier of fact proceeds by inference and not as a direct witness of the events: "The Possibility of "Inference Causation": Inferring Cause-in-Fact and The Nature of Legal Fact-Finding" (2010) 55 McGill L.J. 1; "Known Unknowns in Cause-in-Fact" (2010-2011), 39. Adv. Q. 37; "Cause-in-Fact at the Supreme Court of Canada: Developments in Tort Law in 2012-2013", (2014), 64 S.C.L.R. (2d) 327.
45Very few fact situations demonstrate the causal clarity of a game of billiards in which the combinations of balls striking balls can be easily replicated. The closest equivalent would be a simple case involving a single defendant who did something in breach of the standard of care that physically hurt the defendant, where the "but for" test is relatively easy to apply. Consider the cases in which the defendant accidently shoots the plaintiff in a hunting mishap, or where the defendant runs a red light and collides with the plaintiff who suffers physical trauma. Causation is not usually a live issue in such cases because the causal inferences are so easy to draw.
46Things are more complicated where the complaint is not about something the defendant did, but about something the defendant failed to do in breach of the standard of care. When what is in issue is not the defendant's act, but an omission, the trier of fact is required to attend to the fact situation as it existed in reality the moment before the defendant's breach of the standard of care, and then to imagine that the defendant took the action the standard of care obliged her to take, in order to determine whether her doing so would have prevented or reduced the injury. Even though this exercise is bounded significantly by the actual facts, it counts as "factual" because the task is to consider how the events would actually have unfolded had the defendant taken the action she was obliged to take.
(2) The Causal Reasoning Process
47Regardless of whether the defendant's breach of the standard of care is an act or an omission, the trier of fact's cognitive process in determining causation has three basic steps. The first is to determine what likely happened in actuality. The second is to consider what would likely have happened had the defendant not breached the standard of care. The third step is to allocate fault among the negligent defendants.
48There are two possible outcomes to the trier of fact's imaginative reconstruction of reality at the second step. On the one hand, if the trier of fact draws the inference from the evidence that the plaintiff would likely have been injured in any event, regardless of what the defendant did or failed to do in breach of the standard of care, then the defendant did not cause the injury. On the other hand, if the trier of fact infers from the evidence that the plaintiff would not likely have been injured without the defendant's act or failure to act, then the "but for" test for causation is satisfied: but for the defendant's act or omission, the plaintiff would not have been injured. The defendant's fault, which justifies liability, has been established.
49I move now to consider some more factually complicated situations.
(3) Negligence Actions Involving Multiple Defendants
50Many factual combinations and permutations are possible in negligence cases, including the complexities arising from multiple negligent parties, multiple potential causes, successive and cumulative injuries, divisible and indivisible injuries, injury aggravation, and the thin and crumbling skull scenarios: see Erik Knutsen, "Clarifying Causation in Tort", (2010) 33 Dal. L.J. 153, and "Coping with Complex Causation Information in Personal Injury Cases", (2013) 41 Adv. Q. 149.
51Delayed diagnosis medical negligence cases involving multiple tortfeasors typically raise several such complexities, and are among the most complex to assess from the perspective of causation.
52Chief Justice McLachlin took the view in Clements that the basic "but for" test also applies in these more complex cases, noting at paras. 12 and 43:
In some cases, an injury -- the loss for which the plaintiff claims compensation -- may flow from a number of different negligent acts committed by different actors, each of which is a necessary or "but for" cause of the injury. In such cases, the defendants are said to be jointly and severally liable. The judge or jury then apportions liability according to the degree of fault of each defendant pursuant to contributory negligence legislation.
It is important to reaffirm that in the usual case of multiple agents or actors, the traditional "but for" test still applies. The question, as discussed earlier, is whether the plaintiff has shown that one or more of the defendants' negligence was a necessary cause of the injury. Degrees of fault are reflected in calculations made under contributory negligence legislation.
53In his 2010 article, at p. 170, Professor Knutsen made the following observations, basically agreeing with McLachlin C.J.:
"But for" causation is therefore not complicated in successive or cumulative injury context when one focusses solely on each actor and each actor's role in a causal story. The confusion results when one forgets two things: first, that it is a defendant's breach of the standard of care that is the locus of the causal inquiry, and second, that a defendant's negligence need only be proven to be "a" cause of "some" injury to the plaintiff.
54However, it is worth observing that the Supreme Court has never considered cases beyond the simple. Even in Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458, which involved successive accidents with different defendants, the plaintiff's injuries were treated as a single tort by agreement of the parties, which greatly simplified the analysis. I do not consider Cook v. Lewis 1951 CanLII 26 (SCC), [1951] S.C.R. 830, which was a very strange case about a hunting accident, to be an example applicable to conventional delay of diagnosis and treatment cases.
55As I explain below, this case shows that the trier of fact's cognitive process in reasoning through causation in a delayed diagnosis and treatment case does not unfold as simply as these statements of the doctrine might suggest.
56With these governing principles in mind, I now turn to the second issue.
F. Issue Two: Were the jury questions and the jury instructions on causation legally correct?
57As I noted earlier, the appellants submit that the jury questions and the jury instructions proceeded on the wrong legal understanding of causation in the context of a claim for delayed medical diagnosis and treatment against multiple tortfeasors. They assert that what they call a "global but for" test should have been applied. The respondents submit that the trial judge made no error; the "global but for" test the appellants now put forward is novel and was not put to the trial judge.
58I begin by setting out the governing principles on jury questions and jury instructions, next consider the trial judge's decision on the jury questions and her jury instructions, and then address the arguments.
(1) Civil Jury Questions
59Despite the prevalence of the use of jury questions in negligence actions, relatively little has been written about them. In a civil trial the jury questions and jury instructions are intended to work hand in glove. Jury questions serve to sequence and guide the jury in its deliberations, which is especially necessary in more complex cases in which there are multiple actors.
60Civil jury questions are authorized by s. 108(5) of the Courts of Justice Act, which is the successor to s. 65 of the Judicature Act R.S.O. 1877, c.1, s. 6. In Cobban v. CPR (1896), 23 OAR 115 at 117 (C.A.), Burton J.A. extolled jury questions: "One of the greatest improvements in legal proceedings among the recent changes was the power given to the Court to submit facts only to the jury in the form of questions, and upon the answers to those questions for the Court to apply the law."
61The jury is the trier of fact. Jury questions are intended to identify and track the findings of fact that must be made in a case. Sometimes the questions are simple and few. In a simple negligence action the questions usually involve both liability and damages. An example of a set of jury questions in an ordinary negligence case is provided in K. Bracken, C. Grauer and L. Warren, Civil Jury Instructions (second edition – 2017 update) ("CIVJI"), Appendix C Sample Form1:
1. Was there negligence on the part of the defendant that caused or contributed to the damage suffered by the plaintiff?
Answer: Yes [ ] No [ ]
(If the answer to Question 1 is No, you do not need to answer the questions listed below. If the answer to Question 1 is Yes, proceed to answer the following questions.)
2. If the answer to Question 1 is Yes, was there negligence on the part of the plaintiff that caused or contributed to the occurrence?
Answer: Yes [ ] No [ ]
3. If the answers to Questions 1 and 2 are both Yes, and there was therefore negligence on the part of both parties, what was the percentage or degree of the negligence of each?
Answer: Plaintiff ___%
Defendant ___%
Total 100 %
This example is similar to the one provided in J. Sopinka, D. Houston and M. Sopinka, The Trial of An Action – Second Edition. (Toronto: Butterworths, 1998) ("The Trial of an Action") in Appendix 16.
62The required characteristics of jury questions are plain enough. They should be tailored to the specific findings of fact necessary to decide the case. Jury questions should respond to the facts in issue and be logically sequential. They should be expressed as simply and clearly as possible; a question should not be compound or contain an embedded assumption. Jury questions should also be neutrally expressed and should not nudge the jury towards a particular result. It is better if the questions can be answered in a "yes" or "no" format followed by a blank space in which the jury can insert a damages figure if it finds liability, and its reasons if called for. The jury's answers should permit the judge to complete the judgment: Bassandra v. Sforza, 2016 ONCA 251. See generally CIVJI, and Michelle Fuerst and Mary Anne Sanderson eds, Ontario Courtroom Procedure 3d ed. LexisNexis 2012, at p. 1152 ("Ontario Courtroom Procedure").
63The practice is for trial counsel to propose the jury questions to the trial judge. The trial judge has the overriding gatekeeping obligation to carefully scrutinize the draft jury questions submitted by counsel, and should reject formulations that do not reflect the required characteristics of jury questions, or that would not permit the judge to enter judgment at the end of the trial, even if counsel have agreed on the questions. See Bassandra. The trial judge should engage with counsel for the parties in drafting the questions well before jury instructions are prepared, especially for complex and lengthy cases. Any dispute must be resolved on motion, as it was in this case. See generally CIVJI notes to Appendix C, and Trial of An Action, at 176.
64It has become standard practice in professional negligence cases for the jury to be asked to provide their reasons for any finding of negligence, in keeping with the observations of Sopinka J. in ter Neuzen v. Korn 1995 CanLII 72 (SCC), [1995] 3 S.C.R. 674 at para. 53:
To avoid the problem encountered in this case due to the inscrutability of the jury's response to the question relating to negligence, and as a precaution to test the jury's understanding of the instruction, the question to the jury with respect to negligence should require that the jury specify in what respects the defendant was negligent. In a case in which the general rule applies, the answer will reveal whether the jury has understood and applied the judge's instruction that it must accept the standard practice as the legal standard against which the defendant's conduct must be measured. Additionally, in a case which falls within the exception to the general rule and where the jury can fix the standard irrespective of the expert evidence, the answer to the question will ensure that the standard which the jury has adopted is not unreasonable or unknown in law.
65The trial judge in this case followed best practice, heard argument on November 13, 2015 and issued her endorsement a week later, well before the case went to the jury.
66Too often trial counsel have not discussed the jury questions before the trial starts; this is bad practice. In complex cases counsel should be prepared to propose and discuss the questions during a case management meeting or at the trial management conference. A civil jury trial should start with a working set of jury questions to guide the court, subject to revision as the evidence unfolds.
(2) The Trial Judge's Decision on the Jury Questions
67The parties could not agree on the wording of the questions to be put to the jury on causation at trial. The trial judge made a ruling: 2015 ONSC 7238, 2015 CarswellOnt 18932.
(a) The Appellants' Trial Position on the Jury Questions
68The appellants submitted at trial that the "but for" test for causation was applicable and disavowed any attempt to engage the "material contribution" test. However, they asserted that phrasing the jury questions in terms of the language of the "but for" test as it is set out in Clements would confuse the jurors, particularly in using the word "necessary", which suggests that each defendant's conduct must be the sole cause of the plaintiff's injury. They pointed out that in delayed diagnosis cases one defendant's conduct will rarely, if ever, be the sole cause.
69Trial counsel argued the plaintiffs need not prove that a specific defendant's negligent act or omission was the sole cause of the injury, only that it was a cause, citing Athey, para. 17, where Major J. said: "It is not now necessary, nor has it ever been, for the plaintiff to establish that the defendant's negligence was the sole cause of the injury." He added: "As long as a defendant is part of the cause of an injury, the defendant is liable, even though his act alone was not enough to create the injury."
70Accordingly, the appellants' trial counsel sought this wording for the jury causation question: "Did the failure of ______ to meet the standard of care cause or contribute to Mr. Sacks' injury?" This proposed formulation picked up the language of s. 1 of the Negligence Act, R.S.O. 1990, c. N.1. Counsel referred to several cases in this court where similar language was used.
(b) The Respondents' Trial Position on the Jury Questions
71Trial counsel for the respondents submitted that in wording the jury questions there was no reason for the court to deviate from the language used by the Supreme Court in Clements. Trial counsel for the doctors argued that the jury instructions could correct any impression left by the Clements' wording that the "but for" test required the jury to find any defendant to be the sole cause of the plaintiff's injury. He added that using the terminology of "caused or contributed to" in the jury questions could confuse the jury because it might allow them to find that a defendant contributed to the delay in a way that that was not material, (in the sense that it was de minimis and not sufficiently substantial to give rise to liability).
(c) The Ruling
72To set the jury questions regarding causation, the trial judge cited the test prescribed by the Supreme Court in Clements quoted above. She noted the distinction between the "but for" test for factual causation on the one hand, and the "material contribution to the risk of injury" test, on the other hand, but found this case was not the exceptional one in which the material contribution test to determine cause-in-fact should be used. (This holding is not challenged on appeal.) She noted the respondents' argument, at para. 9: "Inherent in the phrase "but for" is the requirement that the defendant's negligence was necessary to bring about the injury – in other words, that the injury would not have occurred without the defendant's negligence." (Emphasis added.)
73Further, in wording the jury questions, the trial judge found, at para. 13, "there is no compelling reason not to use the language of causation from Clements." She stated that using the phrase, "caused or contributed to," as proposed by the plaintiffs, could confuse the jury; the use of such language in the Negligence Act does not mean it should be used in jury questions.
(d) The Jury Questions
74The jury questions accordingly took the form set out below, to be asked with respect to each defendant.
Standard of Care
1.(a) Have the Plaintiffs satisfied you on a balance of probabilities that there was a breach of the standard of care on the part of [*]?
Answer: [ ]
(b) If yes, please state the particulars of the breach and provide clear and specific answers:
Answer: [ ]
Causation
2.(a) If your answer to question 1(a) is yes, have the Plaintiffs proven, on a balance of probabilities, that but for the breach of standard of care, the injuries of Jordan Sacks would not have occurred?
Answer: [ ]
(b) If your answer to question 2(b) is yes, how did the breach of the standard of care cause Jordan Sacks' injuries? Please provide clear and specific answers:
Answer: [ ]
75While the jury found five of the defendants breached elements of their respective standards of care, they did not find that any of the breaches caused Mr. Sacks's injuries. I return to the significance of this outcome below.
76As I will explain, in my view there is force in the appellants' critique of the jury questions, which extends to the jury instructions.
(3) Civil Jury Instructions
77The purpose of jury instructions is to explain to the jury what their role is in the trial and their corresponding duties. Juries are told at the outset of the trial and in the jury instructions that they are the triers of fact, or "the sole judges of the facts," and that the trial judge's role is to determine and prescribe the law the jury must apply.
78Jury instructions at the end of hearing the evidence and prior to deliberations remind jurors of what they heard in the judge's opening remarks to the jury panel from which the jury was selected, and in remarks to the jury at the opening of trial. But jury instructions also go much deeper. The topics usually covered include the respective roles of the judge and the jury, the onus and burden of proof, the elements of the applicable law tailored to the case, how the jury ought to assess the evidence including credibility and expert evidence, and procedural instructions on how to deliberate. See Ontario Courtroom Procedure, Appendix 1631 at p. 1533 re speech to the panel, and Appendix 16.35, 16.36 re speech to the jury at the opening of the trial.
79Jury charges usually contain statements of the positions of the parties prepared by them for inclusion in the charge. A trial judge will review the evidence and relate the items of evidence to the claims that are being made, particularly in longer cases. The judge will also review the questions facing the jury and explain how they are to be addressed.
80Formulating instructions that adequately state the legal principles to be applied by the jury to the facts in a complex case can be difficult, as appellate courts have often noted.
(a) Appellate Authority on Jury Instructions
81The trial judge plays a vital role in formulating jury instructions, civil or criminal, that help the jury navigate the complexity presented by the law and the facts. The trial judge's duty is to be an educator and to instruct the jury on the law: D. Watt, Helping Jurors Understand (Toronto: Thomson Carswell, 2007), at p. 2. The primary purpose of jury instructions is to "explain the legal principles that jurors are to apply to reach their decision": Watt, at p. 60. Instructions should be legally accurate and expressed in plain language, avoiding "legalese", to enhance juror understanding: Watt, at pp. 82-83.
82The trial judge must "strike a crucial balance by crafting a jury charge that is both comprehensive and comprehensible": R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760, at para. 50. The trial judge's duty is to "decant and simplify": R. v. Jacquard, 1997 CanLII 374 (SCC), [1997] 1 S.C.R. 314, at para. 13.
83Juries must be properly instructed: Jacquard, at para. 2, but a standard of perfection is not expected. Different trial judges are not likely to prepare identical sets of instructions, nor is that required. What is essential is that the substance of the issue be conveyed to the jury: see R. v. Grant, 2016 ONCA 639, 342 C.C.C. (3d) 514, at para. 115; R. v. Henderson (2001), 2001 CanLII 4540 (ON CA), 145 O.A.C. 150 (C.A.), at para. 12.
84The trial judge must isolate the critical issues in a case and tailor the charge to them: Rodgerson, at paras. 51-52. Jury comprehension is hindered, not helped, by overreliance on model charge manuals or long quotes from appellate decisions: Rodgerson, at paras. 50-5, 531; Jacquard, at para. 1. Trial judges are not required to slavishly follow the exact words of a specimen instruction, or a legal test stipulated by an appellate court; in fact doing so might constitute error if it operates to confuse the jury.
85As Justice Watt pointed out in his text, one of the difficulties in crafting comprehensible jury instructions is that the law itself is often very complex, making it "difficult to explain in a single sentence or short paragraph concepts that law students, lawyers, and judges spend months if not years learning" (at p. 61).
86Terse doctrinal formulas are not crafted by appellate courts in order to serve as jury instructions, particularly where the court's focus is on resolving a doctrinal issue, as in Clements. Professor Knutsen observed in his 2010 article that some of the seeming confusion in causation doctrine might be the result of the "economy of language" the Supreme Court has used (p. 155). He added that the statements of doctrine should not be read "like cryptic advice from isolated fortune cookies, with each word taking on ominous significance (p. 156)." The notion of "ominous significance" seems to be present in the word "necessary", as I will explain.
87In my view, the causation doctrine prescribed by the Supreme Court in Clements must be translated into jury-accessible language.
(b) The Jury Instructions on Causation
88As I observed earlier, trial judges should provide a draft set of jury instructions to the parties ahead of time and give counsel an opportunity to make submissions. This allows errors and ambiguities to be caught and corrected, and the instructions to be improved.
89The trial judge followed best practice. She heard submissions at a pre-charge conference on November 30, 2015, and made adjustments in response. It is unclear whether the trial judge also adopted the best practice of providing a written copy of the jury instructions to the members of the jury along with a copy of the set of questions they were to answer.
90In her jury charge, the trial judge described the test for causation in language that echoed Clements:
The plaintiffs must prove on the balance of probabilities that but for the conduct that you have identified as breaching the standard of care, sometimes we call this the "negligent conduct", the injury would not have [occurred].
In an action alleging delay in diagnosis and treatment, such as this one, the plaintiff must establish on a balance of probabilities that the failure to diagnose the anastomotic leak in a timely fashion was a necessary cause of the unfavourable outcome for Jordan. (Emphasis added.)
91She added:
[A] defendant's conduct need not be the sole cause. It does not have to be the most important cause. However, it must have been a necessary cause of the harm. … [T]he plaintiff must show on a balance of probabilities that the injury would not have occurred without the defendant's negligence. (Emphasis added.)
92In concluding her instructions on causation, the trial judge said to the jury:
[Y]ou will be asked to determine the issue of causation for each of the defendants. This means that you must decide on the evidence whether but for the actions of each defendant Jordan would not have suffered the injuries that he did, specifically the multiple surgeries and amputations.
(4) The Arguments on Appeal
93In assessing the adequacy of a jury charge, this court must ask if the jury would have understood the issues of fact, the relevant legal principles, how the facts relate to the law, and the positions of the parties: Surujdeo v. Melady, 2017 ONCA 41, at para. 83.
94The appellants advanced overlapping arguments on the appeal. They contest the adequacy of the wording of the jury questions on causation, and the use of Clements' wording of the "but for" test in the questions and in the jury instructions. To remedy the flaws, they argue that a "global but for" test is required in cases of delayed medical diagnosis and treatment against multiple tortfeasors.
95After discussing the causal reasoning process in such cases, I address the arguments.
(a) The Causal Reasoning Process in Cases of Delayed Diagnosis and Treatment Against Multiple Tortfeasors
96As I stated earlier, this case shows that the trier of fact's cognitive process in reasoning through causation in a delayed diagnosis and treatment case does not unfold as simply as the statements of causation doctrine might suggest.
97The context in such cases is set by the plaintiff's overarching claim that his or her injuries were caused by a delay in diagnosis and treatment. In this case, the appellants' position is that if Mr. Sacks's anastomotic leak had been detected and treated on a timely basis, he would not have suffered his injuries.
98The normal causal reasoning process has three steps, as noted. The first is to determine what likely happened in actuality. The trier of fact must determine, on the evidence, whether the delay in treatment led to the plaintiff's injury, considering only what the plaintiff needed by way of timely diagnosis and treatment in order to avoid injury, and without considering the presence or absence of any breaches of the standard of care.
99The second is to consider what would likely have happened had the defendant not breached the standard of care. If an actual delay led to injury, the plaintiff must establish fault: there was a breach of the standard of care on the part of one or more of the defendants that caused or contributed to the delay in diagnosis and treatment. The third step is to allocate fault among the negligent defendants.
100The analysis of the second and third steps requires the trier of fact to determine sequentially and separately with respect to each event in the chain of events leading to the plaintiff's injury, whether there was a breach of the standard of care on the part of one or more of the defendants that caused or contributed to the delay that led to the injury. The trier of fact, assisted by the trial judge and the parties, must "chunk out," or separate for analytical purposes, the events in the flow, and apply the causal reasoning process to each event in sequence.
101The basic idea is that the jury must analyze each event in the sequence while ignoring any decision it might have made with respect to an earlier event. To illustrate, I pick out two events in this case. The first event was that at 5:08 p.m. on May 16, Nurse Raye-Ilogu entered a blood work order in the hospital computer. She went off duty at 7:50 p.m. The jury was asked to find that she:
Failed to check the laboratory results before the end of her shift;
Failed to confirm the status of the laboratory results and to ensure proper handover.
102The second event was that the results of the blood test were entered into the hospital's computer system at 9:51 p.m. The jury was asked to find that Sunnybrook:
Failed to perform STAT blood test in a timely way;
Failed to follow its own policy regarding turn-around time for STAT blood tests (one hour, says the appellants);
Failed to call the floor or the ordering physician to advise that the results of the stat blood test would be delayed and to advise when the results would become available.
103Regarding the first event, the argument is that had Nurse Raye-Ilogu pursued the blood test results earlier, Sunnybrook staff would have processed the request earlier, perhaps by several hours. It was open to the jury to have found Nurse Raye-Ilogu beached the standard of care in failing to follow up, and to find that, on the balance of probabilities, she contributed to the cumulative delay in diagnosis and treatment.
104In considering the second event, the jury would have been required to ignore its finding with respect to the first event, and to consider Sunnybrook's possible breaches of the standard of care on the facts as they actually occurred, not on the facts that would have occurred if Nurse Raye-Ilogu had pursued the blood test results earlier. In other words, the jury was required to keep its assessment of the two events separate.
105I track through the events of the case in considering how to interpret the jury's answers below. My purpose here, in picking out these two events as examples, is to note that a jury considering a negligence claim against multiple tortfeasors requires careful instructions on the reasoning process it must employ in moving through the events in order to determine causation. The jury charge in this case did not provide such instructions.
(b) Problems with Using the Clements' Wording of the "But For" Test in Jury Instructions
106The appellants concede in their factum that the trial judge "adequately instructed the jury on how to apply the "but for" test to address the problem of factual uncertainty in this case." However, they assert that the trial judge's use of the wording in Clements, particularly with its focus on the word "necessary," introduced a fatal ambiguity into the questions that rendered the jury's answers unreliable. Appeal counsel's submissions echoed and deepened the argument advanced by trial counsel about the wording of the jury questions.
(i) The Basic Factual Question was not Asked
107The appellants submit that the jury was not asked to determine whether there was a delay in the diagnosis and treatment of Mr. Sacks's condition that caused his injuries, quite apart from any negligence, which is the first step in the causal reasoning process. This I infer to be the core of the appeal argument that the questions and instructions were deficient because "the jury never had the opportunity to consider what would have happened but for "the failure to diagnose the anastomotic leak in a timely fashion"".
108I would reject this argument. In my view, that is exactly the import of a statement in the trial judge's instructions, which I repeat:
In an action alleging delay in diagnosis and treatment, such as this one, the plaintiff must establish on a balance of probabilities that the failure to diagnose the anastomotic leak in a timely fashion was a necessary cause of the unfavourable outcome for Jordan.
109It would have been preferable to have included a basic question to this effect in the jury questions (but omitting the word "necessary" as I will explain). The trial judge in Goodwin v. Olupona, 2013 ONCA 259, 325 O.A.C. 245 took a similar approach by first asking: "When did Adam Goodwin sustain his injuries?..." But there is no doubt that in this case the jury was told the crux of the point.
(ii) The Problem of "Circular Causation"
110The appellants submit it was wrong for "the jury [to be] asked to determine whether the conduct of each defendant – on his or her own – was necessary to bring about Jordan's injuries" (emphasis added). More specifically, they argue:
The jury in this case, however, was asked whether Jordan's injuries would have been avoided but for the breaches of each individual defendant, one by one. In light of the evidence at trial about the collective nature of the errors that caused Jordan's injuries, it is understandable that the jury answered "no" to the causation questions posed about each defendant individually. It may well be the case that but for the breaches of Dr. Ross, or Dr. Kanji, or Dr. Bendzsak, or Nurse Li, or Sunnybrook Hospital on their own, Jordan's injuries would not have been avoided. But that is not the question the law requires the trier of fact to consider.
The jury was never asked the crucial question in this case: but for the delay occasioned by the defendants' breaches of the standard of care, would Jordan's injuries have been avoided? Jordan is entitled in law to receive an answer to this question.
111The error, the appellants assert, is that on the facts of this case, "no individual defendant's conduct could be said to have been necessary to cause the harm." The issue arises in cases where: "multiple defendants' collective negligence may create more delay than was actually necessary to cause the injury." They invoke Professor Knutsen's critique of what he dubbed "circular causation" in his 2010 article, at pp. 163,187.
112Counsel stated in oral argument:
In some cases, we say, this is a classic example, one defendant's negligence may not be necessary to bring about an injury when considered in isolation, but it may be necessary to bring about an injury when considered in conjunction with the negligence of other tortfeasors where the cumulative effect of multiple breaches of the standard of care constitutes the necessary cause. In those cases the defendant's negligence is part of the necessary cause even if it is not a necessary cause on its own. We say it doesn't make sense that the plaintiff would be without a remedy at law simply because there's not one individual defendant whose actions alone would have made a difference even if the combined negligence of a group of defendants, in this case members of the healthcare team, caused the injury.
113An example of the basic problem Professor Knutsen calls "circular causation" is found in Michael D. Green & William C. Powers Jr., Restatement of Torts: Liability for Physical and Emotional Harm, 3d ed. (St. Paul, MN: American Law Institute Publishers, 2010), at section 27, illustration 3:
Able, Baker and Charlie, acting independently but simultaneously, each negligently lean on Paul's car, which is parked at a scenic overlook at the edge of a mountain. Their combined force results in the car rolling over the edge of a diminutive curbstone and plummeting down the mountain to its destruction. The force exerted by each of Able, Baker and Charlie would have been insufficient to propel Paul's car pass the curbstone, but the combined force of any two of them is sufficient. Able, Baker and Charlie are each a factual cause of the destruction of Paul's car.
114Professor Jane Stapleton notes that this example shows "a positive contribution which might be unnecessary": "Unnecessary Causes", (2013) 129 L.Q.R. 39. The idea is that each of Able, Baker and Charlie could step out of the causal chain. Each could claim his contribution to have been "unnecessary" to the damage since the force administered by the other two would have sufficed, even though each contributed to the force that caused the damage.
115Professor Stapleton cites this as one of several examples of "the striking outcomes that would flow if the law refused to recognize as 'causal' a positive contribution, albeit unnecessary, to the relevant step in the mechanism by which an indivisible injury occurred." (p. 43). She proposes that:
[the causal test be] framed as no more than whether that factor was a cause of the injury. This catchment is also neatly achieved by the well-known phrase 'caused or contributed to'. The word 'caused' will easily identify necessary factors and the phrase 'contributed to' also accommodates the positive, albeit unnecessary, contributions being discussed here. (p. 45).
116Generally speaking, with respect to delayed diagnosis medical negligence cases involving multiple tortfeasors, it ought not to be possible for any one of the negligent tortfeasors to sidestep liability on the basis that there was sufficient cumulative delay resulting from the negligent acts or omissions of other defendants so that it could not be proven under Clements that the defendant's particular contribution was "necessary" – that the injury would still have been incurred but for the negligent act or omission.
117I note that the formulation preferred by Professor Stapleton is the one set out in the Negligence Act. It is also the way in which the causation test has been described in several cases in the Supreme Court and in this court. See Snell v. Farrell, 1990 CanLII 70 (SCC), [1990] 2 S.C.R. 311, at para 26, and Athey at paras.13 and 17. This court has held that "a plaintiff must prove on a balance of probabilities that the delay caused or contributed to the unfavourable outcome": Cottrelle v. Gerrard, (2003) 2003 CanLII 50091 (ON CA), 67 O.R. (3d) 737 (C.A.) at para. 25, cited in van Dyke v. Grey Bruce Regional Health Centre 2005 CanLII 18841 (ON CA), [2005] O.J. No. 2219 (C.A.) at para. 44; in Beldycki Estate v. Jaipargas, 2012 ONCA 537 at para. 44, in Wilson v. Beck, 2013 ONCA 316 at para. 46, and in Mangal v. William Osler Health Centre, 2014 ONCA 639 at para. 56. It is also consistent with the sample questions in CIVJI and in The Trial of an Action.
118As I interpret Clements, in specifying the "but for" test, McLachlin C.J. used the word "necessary" in a purposive manner in order to underscore the legal requirement for the plaintiff to prove that there was a real and substantial connection between the defendant's breach of the standard of care by an act or omission and the plaintiff's injury. Recall her words in para 8 of Clements: "Inherent in the phrase "but for" is the requirement that the defendant's negligence was necessary to bring about the injury -- in other words that the injury would not have occurred without the defendant's negligence (My emphasis)."
119As is shown by McLachlin C.J.'s alternative wording, it is possible to set the causation test without using the word "necessary" at all. Lord Denning did not use the word in his explanation of the "but for" test in Cork v. Kirby Maclean Ltd. [1952] 3 All E.R. 402 at 407:
If you can say that the damage would not have happened but for a particular fault, then that fault is in fact a cause of the damage; but if you can say that the damage would have happened just the same, fault or no fault, then the fault is not the cause of the damage.
Nor do Allen M. Linden and Bruce Feldthusen use the word in their specification of the test: Canadian Tort Law 10th ed. (Toronto: Butterworths, 2015) at s.4.32 and following.
120The prospect that the word "necessary" in the Clements expression of the "but for" test might conflict with the customary and statutory phrase "caused or contributed to" has not been addressed in the cases. In my view, when the Clements test is understood purposively, there is no conflict. There is no magic in the word "necessary," and it is not obligatory in a jury instruction or question.
121The delayed diagnosis cases involving multiple tortfeasors could present instances of "circular causation" in which the use of the word "necessary", as explained by Professor Stapleton, could create confusion in the minds of the jury and lead to injustice. In such instances it would be better if the word were not used in explaining the "but for" test to the jury.
122In my view, the trial judge should not have rejected the use of the phrase "caused or contributed to" in the formulation of the jury questions and the instructions, and instead to have insisted on the language from Clements. Perhaps, in responding to defence counsel's argument, the trial judge took the view that using the phrase would conflict with the Clements' wording of the "but for" test, particularly in its use of the word "necessary". There is nothing innately confusing about the phrase "caused or contributed to".
(c) The Appellants' Proposed "Global but for" Test
123In contrast to their position at trial, the appellants submit that the questions and instructions were deficient because they did not tell the jury to consider "whether Jordan's injuries would have been avoided but for the defendants' collective negligent conduct." In claims for delayed medical diagnosis and treatment made against multiple defendant tortfeasors, such as this case, the appellants submit the jury should be asked a "global but for" question in order to determine causation:
Here, it is not a question of "which defendant", but of multiple defendants' compounding contributions, no one of which can be considered necessary on its own, but each of which composed part of a necessary cause (the delayed diagnosis).
The only antidote is a "global but for test".
124The appellants now posit two jury questions related to causation, adding a prior question to the one trial counsel proffered:
(1) Have the Plaintiffs proven, on a balance of probabilities, that but for the delay occasioned by the defendants' breaches of the standard of care, the injuries of Jordan Sacks would not have occurred?
If the answer to that question is "yes", in respect of each individual defendant
(2) Did the failure of [that defendant] to meet the standard of care cause or contribute to Jordan Sacks' injuries?
125The appellants base the "global but for" test on Clements. At para. 43 of the decision, McLachlin C.J. noted that in the case of multiple agents or actors, the traditional "but for" test applies, but the question becomes: "whether the plaintiff has shown that one or more of the defendants' negligence was a necessary cause of the injury." Chief Justice McLachlin was referring, in para. 43 of Clements, to her earlier comments, at paras. 39 and 40, where she twice used the expression "viewed globally":
What then are the cases referring to when they say that it must be "impossible" to prove "but for" causation as a precondition to a material contribution to risk approach? The answer emerges from the facts of the cases that have adopted such an approach. Typically, there are a number of tortfeasors. All are at fault, and one or more has in fact caused the plaintiff's injury. The plaintiff would not have been injured "but for" their negligence, viewed globally. However, because each can point the finger at the other, it is impossible for the plaintiff to show on a balance of probabilities that any one of them in fact caused her injury. This is the impossibility of which Cook and the multiple employer mesothelioma cases speak.
The cases that have dispensed with the usual requirement of "but for" causation in favour of a less onerous material contribution to risk approach are generally cases where, "but for" the negligent act of one or more of the defendants, the plaintiff would not have been injured. …The plaintiff effectively has established that the "but for" test, viewed globally, has been met. It is only when it is applied separately to each defendant that the "but for" test breaks down because it cannot be shown which of several negligent defendants actually launched the event that led to the injury. The plaintiff thus has shown negligence and a relationship of duty owed by each defendant, but faces failure on the "but for" test because it is "impossible", in the sense just discussed, to show which act or acts were injurious. In such cases, each defendant who has contributed to the risk of the injury that occurred can be faulted. (Emphasis added.)
126The appellants argue that this court has taken this global approach in delayed diagnosis cases, and cite Cottrelle and the cases following its language of whether "the delay caused or contributed to the unfavourable outcome." Cottrelle involved a single tortfeasor, and Wilson v. Beck did not expressly address the issue. I am unable to agree that this court has at any time adopted the "global but for" test for which the appellants contend.
127Counsel for the hospital respondents submits that the thrust of the language in Clements was to "reinforce the traditional individual 'but for' test" as against the material contribution test.
128It is a fair reading that in both Hanke v. Resurfice 2007 SCC 7, [2007] 1 S.C.R. 333, and Clements, repeated in Ediger v. Johnston 2013 SCC 18, [2013] 2 SCR 98, at para. 2, the Supreme Court was trying to corral the material contribution test that originated with its decision in Athey v. Leonati. Professor Vaughan Black states that Athey "spawned 16 years of confusion." His view is that Clements "has in fact been successful in turning back the causation clock to a more defendant-favouring age": "The Rise and Fall of Plaintiff-Friendly Causation" (2016) 53: 4 Alta. L. Rev 1013, at paras. 18, and 6.
129However, it is not my view, as the hospital respondents suggest, that the appellants are effectively resiling from their position that the material contribution test does not apply in this case. I do not see the "global but for" test as another angle on the material contribution test.
130To reflect the causal reasoning process, I would have framed the jury questions as follows:
(1) Have the Plaintiffs proven, on a balance of probabilities, that a delay in treatment caused Jordan Sacks's injuries?
If the answer to that question is "yes", in respect of each individual defendant:
(2) Have the Plaintiffs proven, on a balance of probabilities, that the delay resulting from [this defendant's] breach of the standard of care caused or contributed to the injuries of Jordan Sacks?
If the answer to that question is "yes", in respect of each individual defendant:
(3) How did [this defendant] breach the standard of care? Please provide clear and specific answers.
The jury instructions would have to be adjusted accordingly. In such instructions the use of the word "necessary" should be avoided in describing the "but for" test.
131This approach does not impose a "global but for" test. The first question in the causal reasoning process is about a plain fact: did the delay cause the injury because treatment came too late? This step requires the trier of fact to consider only what the plaintiff needed by way of timely diagnosis and treatment in order to avoid injury, without considering the presence or absence of any breaches of the standard of care. It is not aimed at and does not determine fault. The second question is whether anyone in the chain of events caused or contributed to the delay, and determines fault. This is a conventional "but for" analysis of each individual's involvement, which avoids giving any defendant the opportunity to make the "circular causation" argument. The "but for" test would be explained in the instructions and adapted to the facts, including the role of acts and omissions. There is accordingly no "global but for" test, just the application of the ordinary "but for" test in the context of a claim for delayed diagnosis in a medical negligence case involving multiple tortfeasors.
132Despite these adjustments, I would reject the appellants' argument that using their proposed "global but for" test for causation, or simply using the common expression "caused or contributed to" in the questions and the instructions, or using the re-framed questions stated above, would have or could have resulted in a different verdict in this case. I base this on my interpretation of the answers the jury gave to the questions asked, which I deal with in the next section of these reasons.
G. Issue Three: Did any legal error respecting the jury questions or the jury instructions deprive the appellant of a fair trial?
133A jury verdict in a civil trial will be set aside only if it is so plainly unreasonable and unjust as to satisfy the court that no jury reviewing the evidence as a whole and acting judicially could have reached it: Goodwin v. Olupona, 2013 ONCA 259, 305 O.A.C. 245, at para. 23. Where there is some evidence to support the verdict, a jury will be accorded a high degree of deference.
134The competing injury causation theories in this case were clearly and unambiguously put to the jury via the evidence and particularly the expert evidence, in jury submissions by the parties, in the trial judge's explanation of the positions of the parties, and in her jury instructions. No one minced words. When contrasted with the answers the appellants asked the jury to make, the answers given by the jury demonstrate that even if the jury questions had been expressed differently, the jury would not have found in the appellants' favour.
135Professor Brown discussed the dynamic by which a trier of fact assesses competing causation theories and makes a choice in his 2011 article, at p. 57:
Specifically, fact-finders infer to the best explanation among a way of competing explanations of the evidence put before the parties. … At the first stage, parties offer competing narrative to account for the evidence (the plaintiff offering versions that address the formal doctrinal of requirements of her claim, and the defendant offering versions that omit at least one of those elements). The second stage sees the fact-finder subjecting those explanations (along with any explanations generated by the fact-finder herself) to consideration for plausibility in relation to the evidence. The fact-finders, in other words, attempt in situations of factual uncertainty, including known unknowns, to make sense of what happened by cobbling together a plausible account that qualifies as the most compelling of the accounts on offer.
136In his 2010 article, at p. 39, Professor Brown pointed out that there is a form of circularity to this reasoning structure, "in that the explanation and the underlying evidence are mutually reinforcing". He observed: "The evidence under consideration justifies the belief that the explanation is correct, while the explanation is used to clarify the evidence".
137I do not consider this element of circularity to be a flaw, but only a feature of the ordinary reasoning process. A person who comes upon a situation and tries to figure out what happened will, from the evidence, generate hypotheses, and will upon investigation and reflection reject some and eventually adopt one that makes the most sense of all of the evidence. The key link in finding cause-in-fact in a legal action, as Professor Brown noted, is that the trier of fact's reasoning process of "constructing and comparing narratives is undertaken with reference to the evidence, free of idiosyncratic value judgments." (p. 39)
138I turn now to set out the jury submissions by the parties, the trial judge's explanation of the positions of the parties, her jury instructions, and the jury's answers.
(1) The Jury Addresses
(a) The Defence Addresses
139The jury heard first from counsel for the Sunnybrook defendants, but his address was not transcribed. The jury next heard from the counsel for the doctors, who said: "There's two different competing causation theories, as you would have gathered from the evidence. … There's a pretty clear dichotomy between what the defence experts say occurred." He put the defence theory forward forcefully:
[I]nside his abdomen where the leak occurred infected his retroperitoneum, the back of his abdomen, which is in behind a lining which must have been breached, infection got in there, infected the muscles in his back and then tracked down, infected the muscles in his thigh, and that was a virulent infection and that was the reason why he got so sick. He didn't get better after he had the surgery on May 17, he actually got worse.
And it's explained for that reason, whereas the plaintiff's position is that – that just didn't happen. The plaintiff says that didn't happen. It was – the delay in getting him back to the operating room that is the cause."
140Defence counsel returned to the theme a number of times in his argument stating, at page 7: "You have to choose between two theories, one of which is a coherent consistent theory presented by the defence experts…versus kind of piece-meal different theories that changed as the trial went on" put forward by the plaintiffs.
141After going through the evidence in detail, defence counsel said to the jury:
What the defence says this represents, as a matter of science, is that, that necrotizing retroperitoneal soft tissue infection was destroying those muscles in his back, retroperitoneum, and thigh already on May 17, and it got a lot worse and stayed very bad for a number of days, and those are the same days that he is profoundly septically ill. He is in profound septic shock, those are the same days where he's requiring massive amounts of vasopressors, which caused the peripheral ischemia, which is what causes his feet to go necrotic.
So, this all ties it together, clearly, in our submission, that – what the defence is saying is – is right and proven by all this clinical data, and – and that – the plaintiffs' experts have zero explanation to the contrary."
142Defence counsel submitted to the jury that the infection was not preventable on the evidence:
There's no causation in the case referable to the defendants' actions. And it's because…it's for this reason, the only witnesses who described that in detail were Dr. Davison and Dr. Zoutman [defence experts], and they both said this was not preventable, for a whole bunch of different reasons, but it was seeded by – early on, by the evening of the 16th, early morning of the 17th, and it – and you couldn't stop that process, because no one knew about it.
(b) The Plaintiffs' Jury Address
143The plaintiffs' trial counsel took the approach that the outcome "represents a total failure of the entire healthcare team and all of its members and parts. It is a total systems failure." (page 137-8) The argument depended on proving that, but for the collective delay in diagnosing and treating, Mr. Sacks's injuries would have been prevented. The position was that if the "leak had been diagnosed on the evening of May 16, and he been taken to the operating room by 1:00 or 2:00 p.m. on May 17, as Dr. Smith testified that the standard of care required, he would not have progressed from infection to severe septic shock."
144Trial counsel went through the medical records at length and urged the jury to make specific findings that the doctors and staff of the hospital, and the hospital itself, had breached the standard of care in a number of ways.
145Trial counsel stated:
And I say to you Dr. Lee [the plaintiffs' expert] was entirely right, even on the late morning of May the 17th, Mr. Sacks' outcome would have been avoided if only he had received the treatment that he should have…because the key is treat intra-abdominal sepsis as quickly as possible and before it leads to septic shock and that's what didn't happen for Jordan. His intra-abdominal sepsis was not treated and it did lead to septic shock, and I say to you that should be the end of the debate, because the delay that occurred, caused, or allowed, Jordan's sepsis to progress to septic shock. The septic shock – I don't think there's any disagreement here, the septic shock caused Jordan's injuries. So, if the delay caused the sepsis to go to septic shock, and septic shock caused the injuries, the delay caused the injuries.
146Like defence counsel, plaintiffs' counsel was clear and forceful:
The defendants say that Jordan developed a virulent aggressive necrotizing infection in his retroperitoneum that was then undiagnosed and untreated until at least June the 4th, I am going to suggest to you that that diagnosis is physiologic nonsense concocted eight years after the fact in an attempt to avoid accountability for their actions.
147Trial counsel challenged strongly the expertise of the defence experts regarding necrotizing fasciitis. He went over the defence evidence in detail. He stated: "the simple reality is Jordan did not have retroperitoneal necrotizing fasciitis in May 2008." He invited the jury to so find: "I am going to ask you to find that Jordan did not have retroperitoneal necrotizing fasciitis in May of 2008."
148As for the existence of retroperitoneal necrotizing fasciitis, the theory advanced by trial counsel was that Mr. Sacks later "got a bug, pseudomonas aeruginiosa." That bug "caused a secondary necrotizing soft tissue infection, and acute surgical emergency." In short, the plaintiff's position was that the necrotizing fasciitis was a later development and would not have occurred had the sepsis been arrested by proper treatment on May 17.
(2) The Jury Instructions
149In her jury instructions, the trial judge went over the positions of the plaintiffs and the defence, which were prepared by them for insertion into the instructions.
150As the very end of her instructions, just before reaching the jury questions, the trial judge summarized the expert evidence, which she had just reviewed:
The plaintiff experts, Dr. Giacomantonio, Dr. Smith, Dr. Rebello, and Dr. Lee and Dr. Krajdn, all said that Jordan's complications following the surgery were caused by the breach of the standard of care of the defendants. The defendant physicians, and hospital, and nurses, called experts whose evidence I have just summarized: Dr. Davison, Dr. Stroz, Dr. Zoutman, and Nurse Burns, and they testified that Jordan's outcome was not caused by anything the doctors and nurses, or the hospital, did or did not do, rather, it was related to the retroperitoneum necrotizing infection that Jordan developed May 16 or May 17.
151The trial judge dealt with causation at several places in her jury instruction. She stated, at page 53:
In order to succeed the plaintiff must also satisfy you that but for the breach of the standard [of care] by one or more of the defendants, it is more likely than not that Jordan, would not have suffered septic shock and would not have had to undergo some 22 surgeries, including the amputations. This is known as the "causation issue".
152She next returned to the issue in discussing the questions:
As I've told you, causation is established if the evidence satisfies you that it is more likely than not that Jordan would not have had the complications and injuries but for the negligent conduct of or breach of the standard of care,… [then]… you must go on to answer question 2b and provide how or in what way the doctor's breach of the standard of care caused Jordan's injuries.
153There were no objections to the jury instruction.
(3) The Jury's Answers
154The competing causation theories were put clearly to the jury via the evidence and particularly the expert evidence, in jury submissions by the parties, in the trial judge's expression of the positions of the parties, and in her jury instructions. The jury's answers must be assessed in that light. The contending positions were sharply differentiated on the evidence.
155In this section of the reasons I set out the flow of events in sequence. The jury's answers must be measured against the findings requested by trial counsel for the appellants. To summarize, the jury found that five of the defendants breached the standard of care, but not Dr. Jeffery Singer nor Nurse Pamela Raye-Illogu. However, the jury did not find that any of the breaches of the standard of care by the defendants caused the injuries for which Mr. Sacks claimed compensation.
156The sequence of relevant events started with Mr. Sacks's surgery on May 13, 2008. Between then and early on May 16, 2008, when his condition started to deteriorate, he developed an anastomotic leak. The appellants do not allege that there was negligence in the surgery or in the fact that the anastomotic leak developed.
157Against this backdrop, the first event to be assessed is Mr. Sacks's presentation of pain and distended abdomen starting at 7:50 a.m. on May 16, when he was under the care of Nurse Raye-Ilogu. At 4:30 p.m. she informed Dr. Bendzsak and Dr. Kanji about Mr. Sacks's pain.
158Concerning this event, with respect to Dr. Bendzsak, the jury was asked to find that she:
Failed to appreciate and/or communicate the nature and urgency of the change in Jordan's condition as of 16:30 on May 16, and the resulting need for follow-up
Failed to ensure that there was appropriate communication to the on-call junior resident about Jordan's change in condition and the fact that a bloodwork order had been made.
159The jury found that:
The new [complete blood count] order on May 16th was to look for an infection which required follow up.
Dr. Bendzsak failed to adequately hand off the responsibility to follow up on the bloodwork, prior to morning rounds.
160With respect to Dr. Kanji, the jury was asked to find that she:
Failed to document any clinical assessment of Jordan at 16:30 on May 16, thereby failing to communicate with the rest of the healthcare team, including the on-call team, of the change in Jordan's condition and his change in management;
Failed to communicate sufficiently or at all with her senior resident, Dr. Bendzsak and/or with Dr. Ross regarding the changes in Jordan's condition including the new complaint of +++ shoulder pain;
Failed to adequately hand over responsibility for follow-up of the bloodwork ordered by her at 16:40 to either Dr. Bendzsak and/or Dr. Singer.
161The jury found only that: "Dr. Kanji failed to document a complete assessment in the chart to assist in the communication of the patient's ongoing care."
162The second event was that at 5:08 p.m. on May 16, at the direction of Dr. Kanji, Nurse Raye-Ilogu entered a bloodwork order in the hospital computer. She went off duty at 7:50 p.m. With respect to Nurse Raye-Ilogu, the jury was asked to find that she:
Failed to check the laboratory results before the end of her shift
Failed to confirm the status of the laboratory results and to ensure proper handover
However, the jury made no adverse findings against Nurse Raye-Ilogu.
163The third event is that the results of the bloodwork were entered into the hospital's computer system at 9:51 p.m. The jury was asked to find that Sunnybrook:
Failed to perform STAT blood test in a timely way;
Failed to follow its own policy regarding turn-around time for STAT blood tests;
Failed to call the floor or the ordering physician to advise that the results of the stat blood test would be delayed and to advise when the results would become available.
164The jury found the following deficiencies respecting Sunnybrook:
The true collect time of the blood was not entered into the system by Sunnybrook Health Sciences Centre.
The hospital did not follow its own "turnaround time policy" when it failed to contact the "floor/requester to advise that results will be delayed."
165The fourth event is that on the evening of May 16, Mrs. Sacks called Dr. Ross at home and expressed concern about Mr. Sacks's condition. Dr. Ross visited Mr. Sacks between 7:30 and 8:00 p.m. that evening. The jury was asked to find that he:
Failed to do a complete assessment of Jordan when he saw him on the evening of May 16;
Failed to investigate Jordan's change in condition on the evening of May 16;
Failed to chart any assessment of Jordan;
Failed to review the medical chart and follow up on stat blood results
166However, with respect to this event, the jury found only that: "Dr. Ross did not communicate appropriately with his team when he failed to document, in the chart, his evening assessment on May 16th."
167The fifth event occurred at 8:00 p.m. on May 16 when Nurse Li first examined Mr. Sacks, and continued throughout her shift. With respect to Nurse Li, the jury was asked to find that she:
Failed to check laboratory results;
Failed to do complete comprehensive chart appropriate assessments of Jordan throughout her shift;
Failed to document and chart appropriately;
Failed to respond to changes in Jordan's condition at 20:00 and to call a physician to assess Jordan;
Failed to respond to the changes in Jordan's condition throughout her shift and to call a physician to assess those changes.
168The jury found only that: "Nurse Lee [sic] failed to complete documentation with a specific failure to record pain scales before administering medication and a failure to record accurate locations of pain."
169The sixth event was Dr. Singer's assessment of Mr. Sacks' in the early morning hours of May 17. The jury was asked to find that he:
Failed to do a complete assessment of Jordan
Failed to review the laboratory results as part of his assessment of Jordan
The jury made no adverse findings respecting Dr. Singer.
170The seventh event occurred at 9:00 a.m. on May 17, when Dr. Ross resumed Mr. Sacks's care. He ordered immediate bloodwork, then a CT scan. Trial counsel requested the jury to find that Dr. Ross failed to start antibiotics in a timely way. The jury found that: "Dr. Ross failed to begin antibiotics within the first hour of recognizing severe sepsis."
171Crucially, the jury did not find that any of the breaches of the standard of care by the defendants caused the injuries for which Mr. Sacks claimed compensation. Given the clarity and vigour of the positions considered by the jury, this is dispositive.
172As I read the jury's answers, the appellants' case foundered at the first logical question in the causal reasoning process: have the plaintiffs proven, on a balance of probabilities, that a delay in treatment led to Jordan Sacks's injuries, considering only what he needed by way of timely diagnosis and treatment in order to avoid the injuries? Although this was not a formal jury question, it tracks the trial judge's instructions, to repeat:
In an action alleging delay in diagnosis and treatment, such as this one, the plaintiff must establish on a balance of probabilities that the failure to diagnose the anastomotic leak in a timely fashion was a necessary cause of the unfavourable outcome for Jordan.
173The jury's answer to that question was plainly "No". Had it been "Yes", then the delays mentioned in the jury's answers would have resulted in positive findings of causation.
174The jury rejected the appellants' causation theory, on the evidence, and accepted the respondents' theory. Not even perfect jury questions and instructions would have changed the verdict.
H. Disposition
175I would dismiss the appeal, with costs, if demanded. The parties have agreed that if the respondents were successful, as they have been, then the appellants would pay $40,000 in costs to the doctors and $30,000 to the hospital defendants, both figures inclusive of disbursements and applicable taxes.
Released:
"OCT -5 2017" "P. Lauwers J.A."
"PL" "I agree C.W. Hourigan J.A."
"I agree M.L. Benotto J.A."
