COURT OF APPEAL FOR ONTARIO
Juriansz, Pardu and Huscroft JJ.A.
BETWEEN
Kelsey Woods, a person under disability by her litigation guardian, Michael Woods, Karli Woods, Bernice Booth, and Michael Woods, personally
Plaintiffs (Respondents)
and
Dr. Allan Jackiewicz and Dr. Ronit Mesterman
Defendants (Appellant)
Thomas J. Curry, Mitchell C. Brown, Mark Veneziano, Dena Varah and Robert Trenker, for the appellant
Christopher Morrison and Paul Cahill, for the respondents
Heard: June 19, 2020 by video conference
On appeal from the judgment of Justice Clayton Conlan of the Superior Court of Justice, sitting with a jury, on April 12, 2019.
I. Overview
1The appellant physician appeals from an award of damages against him for negligent management of a twin pregnancy following a jury trial. He does not challenge the jury finding that he did not meet the standard of care, but he submits that the jury verdict on causation was unreasonable. He says there was a critical gap in the evidence on causation. He says further, that the trial judge ought to have instructed the jury that it could draw an adverse inference against the respondents because they did not call a witness to deal with the gap the appellant identifies in the evidence. He submits that the charge to the jury was inadequate, unbalanced and contained errors. He submits that, although the trial judge’s instruction on causation was legally correct, the trial judge erred in failing to further explain that a mere loss of chance to avoid an injury that does not satisfy the “but for” test does not establish causation.
2I do not accept these arguments and would dismiss the appeal.
II. Factual background
3Ms. Booth was pregnant with twins. She saw the appellant for an unscheduled appointment on July 5, 1991, as she was experiencing severe abdominal pain and excessive weight gain. The appellant sent her home to rest. When the symptoms became worse, she went to Niagara Hospital on July 7 which arranged for her immediate transfer by ambulance to McMaster Hospital. By then, her cervix was two or three centimetres dilated. Doctors there delivered the babies by emergency C-section at 27 weeks into the pregnancy. As a result of the premature birth, one of the twins, Kelsey Woods, sustained brain damage.
4The jury found that the appellant was negligent for, among other things, failing to arrange for her to be seen immediately by a perinatologist – a fetal medicine specialist – on July 5. The theory of the respondents’ case was that if she had been seen on July 5, 1991 by specialists at a tertiary center with expertise in high-risk pregnancies, like McMaster Hospital, then the Twin-to-Twin Transfusion Syndrome (“TTTS”) imperilling the babies would have been detected and treated, and the premature delivery and the brain damage to Ms. Woods would have been avoided.
5TTTS is a rare complication of twin pregnancies. One twin gets too much fluid, while the other gets too little. The twin getting excess fluid continues to urinate, creating a large volume of amniotic fluid around it. This large volume of fluid compresses the other twin who gets less and less fluid. Untreated, this condition is usually fatal for both. The respondents’ experts testified that there was effectively only one treatment in 1991: amnioreduction, a procedure where a needle is inserted into the amniotic cavity to remove some of the excess fluid. If this was not possible, the only other option was an emergency C-section, which at this gestational age could have catastrophic consequences.
6The matter went to trial in 2019. It was a two-issue case:
Did the appellant breach the standard of care?
If yes, did his breach of the standard of care cause the brain damage that Ms. Woods sustained because of her premature birth?
7The jury answered, “yes”, to both questions. As indicated above, the appellant does not challenge the jury’s conclusion that he breached the standard of care and limits his appeal to issues related to causation.
Evidence and arguments relating to the respondents’ theory of causation
8Ms. Booth would have gone to McMaster Hospital, at least initially, had she been referred to specialists on July 5. The causation issues related to the availability of effective treatment for TTTS at McMaster Hospital at that time.
9Dr. Barrett, an expert in management of twin pregnancies called by the respondents, testified that removal of excess fluid from the amniotic cavity was “not a complicated procedure” and that “[a]ny maternal-fetal medicine should do it.” He said it was first developed in the 1940s and became widespread in the 1980s and 1990s. If for some reason McMaster Hospital could not do it in order to treat TTTS, the patient could have been sent to Toronto for the procedure.
10Dr. Barrett testified that in 40% of cases, this procedure would resolve the TTTS entirely, and allow the pregnancy to continue normally to term. In other cases, it would prolong the pregnancy, allow the twins more time to develop, and allow effective use of steroids. The use of the procedure would have immediate beneficial effect. Dr. Barrett testified that amnioreduction was a “standard” treatment of TTTS in 1991, noting, “We were doing it all the time and I think the evidence is pretty clear that we knew it got better results than doing nothing.” Dr. Barrett disagreed when it was suggested to him that the appellant’s expert Dr. Mundle would say that there was limited availability of amnioreduction, and that Ms. Booth would not have had the treatment if she had been referred to McMaster Hospital on July 5.
11Dr. Barrett testified that TTTS develops rapidly and that the mother’s presentation on July 5 would have been materially different from her condition on July 7.
12Dr. Barrett testified that had amnioreduction been performed on July 5, the pregnancy would have been prolonged by about 5 weeks, and in addition there was a further 40% likelihood that the TTTS would have resolved completely. According to other expert evidence, a five-week extension of the pregnancy would have avoided the brain damage.
13Dr. Farine, another expert for the respondents, testified that in Hamilton “they did amnios all the time”, though he did not have direct knowledge of whether McMaster Hospital did amnioreduction to treat TTTS at the time. He testified that amnioreduction was generally used to treat pregnancies where the “baby had too much fluid on board”. When counsel put to him that Dr. Mundle would say that Ms. Booth would not have received amnioreduction if referred on July 5 or earlier because there was limited availability of amnioreduction in 1991, Dr. Farine disagreed. Dr. Farine responded,
[I]f you’re perinatologist and you have two hands, you can do an amniocentesis. So each one of the perinatologists and probably some of the generalist[s] in Mac could have done it… So in the 1991 there was no reason not to embark on it and it’s easy to do…
14The appellant’s expert, Dr. Mundle, ultimately said that his “feeling” was that McMaster Hospital did not offer amnioreduction for TTTS at that time. He explained that when he arrived in Ontario in 1997, McMaster Hospital was not doing it. However, by 1997 laser treatment for this condition had become available and was a more effective treatment.
15The appellant distinguishes withdrawal of amniotic fluid for diagnostic purposes, amniocentesis, and withdrawal of amniotic fluid in single-baby pregnancies where there is too much fluid, from amnioreduction to treat TTTS. He submits that neither Dr. Farine nor Dr. Barrett were able to opine as to whether this treatment for TTTS was available at McMaster Hospital on July 5, 1991. Dr. Farine was familiar only with the practices at his own hospital. Dr. Barrett came to Canada after 1991, and when asked if he knew whether McMaster Hospital was offering the treatment for TTTS, he responded, “I don’t know exactly. I wasn’t working there. … I would assume it could’ve - it would’ve been. It’s not a complicated procedure. Any maternal-fetal medicine should do it.”
16The appellant argues that without evidence from someone at McMaster Hospital that amnioreduction was available there for treatment of TTTS, the respondents’ case on causation had to fail. He says this absence of evidence amounted to a fatal gap in the respondents’ case and made the jury verdict on causation unreasonable.
17The appellant introduced expert evidence supporting his position, but the jury did not accept that evidence. Since the appellant challenges the jury verdict on the ground that it was unreasonable, the focus on appeal is on whether there was evidence which could support the jury’s decision.
The jury answers on causation
18The jury answered “yes” to the question, “If your answer to question 1 (a) [was there a breach of the standard of care?] is YES, have the plaintiffs satisfied you on the balance of probabilities that, but for the breach of the standard of care, [Ms. Woods] would not have sustained brain damage?”
19In response to the further question, “how did [the appellant’s] breach of the standard of care cause [Ms. Woods’s] brain damage?”, the jury responded as follows:
We recognize that the breach of the standard of care may not be the sole, exclusive, or entire cause of the brain damage. However, we do believe there is a causal link between the breach in standard of care and the brain damage. The breach is Dr. Jackowitz [sic] failure to refer Ms. Booth to a perinatalogist [sic] or consult a perinatalogist [sic] on July 5th.
In consequence,
she did not receive specialist perinatal care in a timely fashion.
this would have included an earlier diagnosis of TTTS.
amnioreduction as a treatment for TTTS.
timely administration of a full course of steroids to improve lung development.
III. Issues
20The appellant raises the following issues:
Was the jury’s verdict unreasonable because there was no evidentiary basis to support the jury’s verdict on causation?
Did the trial judge’s charge to the jury contain legal errors on the issue of causation that resulted in a substantial miscarriage of justice?
a. Did the trial judge err by refusing to instruct the jury that they were permitted to draw an adverse inference from the respondents’ failure to call any witness from McMaster Hospital to give evidence on the availability of amnioreduction in 1991?
b. Did the charge give disproportionate weight to the respondents’ experts or mischaracterize the expert evidence?
c. Did the trial judge err by refusing to instruct the jury that a mere loss of chance is not compensable at law?
IV. Analysis
(1) Was the jury’s verdict unreasonable because there was no evidentiary basis to support the jury’s verdict on causation?
21The appellant contends that there was an insufficient basis to conclude that his failure to refer Ms. Booth to a perinatologist on July 5 caused the premature birth and the brain damage. He argues that even if he had referred her, there was inadequate evidence that amnioreduction would have been performed at McMaster Hospital in a manner that would have avoided the injury.
22The test for appellate interference with a jury verdict is high. As noted in Parent v. Janandee Management Inc., 2017 ONCA 922, at para. 26:
A high degree of deference is given by courts to jury verdicts. A civil jury's 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….
23Hourigan J.A. described the high degree of deference owed to jury verdicts in Stilwell v. World Kitchen Inc., 2014 ONCA 770, 327 O.A.C. 146, at para. 36:
The appropriate degree of judicial deference to be applied in the consideration of jury answers and verdicts was described by Laskin C.J.C. in his dissent in Wade v. C.N.R., 1977 CanLII 194 (SCC), [1978] 1 S.C.R. 1064, at pp. 1069-1070:
Appeal Courts do not fine-comb jury answers but accord them the respect of a common sense interpretation even where there may be some ambiguity in the answers.… It is always timely to be reminded that juries do not write reasons for judgment, and their answers must be taken against the background of the evidence from which they are entitled to select, without manifesting their selection, what is credible, what is significant, what is persuasive to them. It is very often easy for an appellate Court, in the leisurely scrutiny of the transcript, to find significance in pieces of evidence to contradict jury findings, and in so doing to usurp the jury’s function. What an appellate Court may believe from a reading of the transcript may be the very things which a jury disbelieved or believed in part only. It is one thing to interfere with a jury’s verdict where there is simply no evidence to support its findings or to support a critical one; it is a different thing, and not to be encouraged, to interfere with its findings where there is evidence, however slight, on which they may be based, but where because of offsetting evidence a question of credit and weight arises. These are matters for the jury alone.
24Here it was open to the jury to infer that had Ms. Booth been referred to McMaster Hospital on July 5, 1991, amnioreduction would have been performed to effectively treat the TTTS. McMaster Hospital was a tertiary centre specializing in high-risk or problem pregnancies. The jury could infer that the easy-to-perform treatment would have been administered, given that there was no other treatment available other than a potentially catastrophic early C-section. The respondents’ experts provided a basis from which the jury could infer that the TTTS would have been successfully treated at McMaster Hospital in 1991. The jury rejected the appellant’s expert’s “feeling” that amnioreduction was not offered at that time at McMaster Hospital. There may have been any number of reasons why the jury preferred the evidence of the respondents’ experts. It was open to them to do so and conclude that the treatment would have been administered and would have avoided the brain damage on the balance of probabilities.
25Trial counsel for the appellant acknowledged this in his submissions to the jury when discussing Dr. Barrett’s evidence with them:
He maintained the position that amnioreduction would have been done and would have extended the pregnancy on five - for five weeks. And that’s what you must accept if you, if you are going to accept that causation has been proven, but I’m going to urge you not to accept that. I’m going to urge you not to accept the opinion of Dr. Barrett for six reasons.
(2) Did the trial judge’s charge to the jury contain legal errors on the issue of causation that resulted in a substantial miscarriage of justice?
26The appellant argues that the jury charge contained multiple significant misdirections and non-directions that together amounted to a substantial miscarriage of justice.
(a) Did the trial judge err by refusing to instruct the jury that they were permitted to draw an adverse inference from the respondents’ failure to call any witness from McMaster Hospital to give evidence on the availability of amnioreduction in 1991?
27The trial judge did not err in deciding not to instruct the jury that they could draw an adverse inference from the failure of the respondents to call a witness from McMaster Hospital to testify about whether amnioreduction was used to treat TTTS at the time. Either party could have called that evidence if they thought it was important: see Lambert v. Quinn, 1994 CanLii 978 (ONCA), 110 D.L.R. (4th) 284, at pp. 287-88.
(b) Did the charge give disproportionate weight to the respondents’ experts or mischaracterize the expert evidence?
28The appellant submits that significantly more space in the jury charge was devoted to the respondents’ evidence, even though the cases at trial for the appellant and the respondents were nearly equal in length. In particular, the summary did not include the cross-examination of Dr. Barrett.
29The appellant further submits that the jury charge misrepresented the evidence by describing Dr. Farine as testifying that “[a]mnioreduction was available in Hamilton in 1991”, when Dr. Farine only testified that McMaster Hospital would have been technically capable of performing amnioreduction, not that it was actually being performed there at that time to treat TTTS. Similarly, the appellant submits that the trial judge misdescribed Dr. Barrett’s evidence as being that “[a]mnioreduction was available at the time”, when his actual opinion was that McMaster Hospital could have and should have performed amnioreduction in 1991, not that it would do so. The appellant asserts these statements were misleading and do not reflect the fact that neither expert was present at McMaster Hospital and they could not directly attest to whether amnioreduction was being performed at McMaster Hospital in 1991 to effectively treat TTTS.
30I do not accept these submissions. In my view, the jury charge was fair and balanced. There is no sense that the trial judge put his thumb on one side or another of the scale. He did not unfairly mischaracterize the evidence.
31The trial judge did not review the evidence in great detail and he told the jury that his references to the evidence would be brief. There were seven days of evidence. Counsel for the appellant’s closing submissions lasted about 3.5 hours. The respondents addressed the jury for about 1.5 hours. The jury charge was given the day after submissions. The trial judge told the jury, “we have heard two very thorough, well-prepared, very well-presented addresses on both sides”, and he thanked all counsel who had provided closing addresses. He told the jury “This case has been presented to you in a fair and thorough manner…”.
32While some judges might have reviewed the evidence in more detail, I cannot conclude that the trial judge erred in his approach to the review of the evidence. He had to decide what was required to enable the jury to assess the evidence in light of the course the trial had taken. I am not persuaded that the jury was not equipped to make a decision about the conflicting evidence on causation.
33As noted in Surujdeo v. Melady, 2017 ONCA 41, 410 D.L.R. (4th) 538, at para. 82:
The adequacy of a jury charge on a particular issue is not assessed by comparing the number of words the trial judge devoted to the issue as compared to others. Indeed, brevity in a jury charge is desired: R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 56. Rather, the extent to which a judge must review the evidence depends upon the particular case. The test is one of fairness. The charge will be adequate when the judge puts the evidence to the jury in a manner that will allow it to fully appreciate the issues and the defence presented: R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760, at para. 30. [Emphasis added.]
34Accordingly, an appeal court must assess the adequacy of a charge in the context of the entire trial and ask if the jury would have understood the issues of fact, the relevant legal principles, how the facts related to the law, and the positions of the parties: see Caza v. Kirkland and District Hospital, 2003 CanLII 39169 (ON CA), 172 O.A.C. 388, at para. 34.
35Following delivery of the jury charge, counsel for the appellant asked that excerpts of the cross-examination of Dr. Barrett be given to the jury so that they could look at them while deliberating, together with copies of documents the appellant had used as demonstrative aids during the closing address to lend force and clarity to his arguments. The trial judge acceded to this request, over the objections of the respondents, even though it gave relative added weight and prominence to the appellant’s arguments with the jury. There is no reason to believe that the jury did not have all the information the appellant thought important. The jury deliberated for just over one day. They had the written charge with them in the jury room.
36As for mischaracterization of the expert evidence, I am satisfied that the statements challenged by the appellant, when read in their full context, would not have misled the jury. It would have been clear to the jury that Dr. Barrett and Dr. Farine were not at McMaster Hospital in 1991, and that their views were not based on direct knowledge. It would have been clear that their views arose from the opinion that, in 1991, use of a needle to remove amniotic fluid was a relatively simple and well-known procedure, and it was the only option for TTTS.
37The trial judge’s description of Dr. Barrett’s and Dr. Farine’s evidence was comparable to his summary of Dr. Mundle’s evidence:
Dr. William Mundle, an expert witness, testified that amnioreduction was experimental in the early 1990s. His feeling is that it was not available at McMaster in 1991. His opinion is that even if [Ms. Booth] had been transferred to McMaster before July 7, 1991, even as early as June 27th, or on July 5th, the result would likely have been the same. No amnioreduction would have been offered. No full dose (48 hours) of steroids would have been administered. An emergency c-section would have been performed.
38The trial judge did not qualify this summary of Dr. Mundle’s views with a warning that Dr. Mundle lacked direct experience of McMaster Hospital in 1991. Dr. Barrett’s and Dr. Farine’s views were no more overstated than Dr. Mundle’s. Dr. Barrett and Dr. Farine, like Dr. Mundle, provided opinions on the availability of amnioreduction at McMaster Hospital in 1991 based on their medical knowledge, experience, and training, not direct knowledge of the Hospital at the time. This was abundantly clear to the jury, who had recently heard during the trial that none of these experts were at McMaster Hospital in 1991.
(c) Did the trial judge err by refusing to instruct the jury that a mere loss of chance is not compensable at law?
39The trial judge’s instruction on causation was legally correct:
Causation is established where the Plaintiffs prove on a balance of probabilities that the Defendant doctor caused the injury. The test you must apply is the “but for” test, which requires the Plaintiffs to show on a balance of probabilities that the injury, the brain damage (cerebral palsy), would not have occurred but for the breach of the standard of care by [the appellant].
He told the jury what proof on the balance of probabilities meant:
When I say that a party has the burden of proof of satisfying you of something, this means that you must be persuaded of that proposition on a balance of probabilities. That means more likely or more probable than not.
40No one had suggested that a mere loss of a chance to avoid injury was sufficient to establish causation. The appellant does not claim that a “lost chance” standard was put to the jury, or that the correct standard was not conveyed. He points only to the complexity of the case and the centrality of causation as reasons why this further direction was necessary.
41I see no error in the trial judge’s decision to refrain from embarking on a discussion of loss of chance, which would have risked adding unnecessary complexity and confusing the jury.
42Overall, I am not persuaded that there was any material misdirection or non-direction by the trial judge that warrants appellate intervention.
V. Disposition
43Accordingly, I would dismiss the appeal.
44Counsel may make brief written submissions as to the costs of the appeal, due from the respondents within 15 days following the release of these reasons, and from the appellant within 10 days thereafter.
Released: July 13, 2020
“RGJ”
“G. Pardu J.A”
“I agree R.G. Juriansz J.A.”
“I agree Grant Huscroft J.A.”
