DATE: 2005-05-26

DOCKET: C41573

COURT OF APPEAL FOR ONTARIO

RE: Denise Ferenczy (Plaintiff/Appellant) – and – MCI Medical Clinics and Dr. Gary Weinstein (Defendants/Respondent)

BEFORE: Cronk, Gillese and Armstrong JJ.A.

COUNSEL: John W. Bruggeman for the appellant William D. Black and Michally Iny for the respondent

HEARD: May 20, 2005

On appeal from the judgment of Justice Fletcher Dawson of the Superior Court of Justice, sitting with a jury, dated February 24, 2004.

E N D O R S E M E N T

[1] This appeal arises from a medical malpractice trial that proceeded before a jury and was presided over by Dawson J. The appellant was treated on one occasion by the respondent, Dr. Weinstein. Dr. Weinstein attempted to aspirate a ganglion cyst on the appellant’s wrist but inadvertently punctured her radial artery. The appellant developed a bruise at the puncture site which she claimed caused ongoing neurological injuries and permanent disability.

[2] The jury dismissed the appellant’s claims in their entirety. They assessed damages, had a finding of liability been made, at nil. The trial judge granted judgment in accordance with the jury verdict and dismissed the action.

[3] The appellant argued two main grounds of appeal. A third ground of appeal, namely, whether the trial judge erred in refusing to qualify Dr. Gideon as an expert witness, was abandoned at the oral hearing of the appeal. Numerous sub-issues were raised under the two main grounds of appeal but were not pursued orally. These reasons speak to the issues that were pursued.

1. The jury’s verdict and assessment of damages

[4] The appellant argues, on a number of grounds, that the jury verdict and assessment of damages were unreasonable and not supported by the evidence. We disagree.

[5] The standard for appellate review of a jury verdict in a civil case is well established and very high. A jury verdict is not to be set aside as against the weight of the evidence unless 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. See McCannell v. McLean, 1937 1 (SCC), [1937] S.C.R. 341.

[6] This case was essentially a credibility battle. Given the inconsistencies in the appellant’s evidence and the fact that much of it was contradicted or unsupported by the medical evidence, the jury was entitled to disbelieve the appellant. There was ample evidence to support the jury’s finding that Dr. Weinstein met the standard of care in his “informed consent” discussions with the appellant. Dr. Weinstein testified that, based on his standard practice, he would have discussed with the appellant the various treatment options and the risks of treating her ganglion cyst, which included the risk of bleeding and infection.

[7] As well, the jury was entitled to conclude that the appellant did not suffer from ongoing problems after the attempted aspiration on February 17, 1999. Consequently, the jury was entitled to reject the appellant’s assertions that she suffered compensable damages.

[8] The fact that the jury reached its verdict and assessments in a short period of time does not, in our view, warrant the conclusion that it failed to act judicially.

[9] Finally, notwithstanding the fact that both counsel put forward amounts as to the quantum of the OHIP subrogated claim, the jury was not bound to accept those figures. The jury was entitled to find that the appellant would have had a surgical excision of the cyst in any event.

2. Alleged misdirections by the trial judge in his charge and recharge

[10] Counsel for the appellant asked the trial judge, before he charged the jury, whether he intended to give the jury a copy of his charge. The trial judge indicated that it was unlikely. The matter was not pursued. We see nothing in this to suggest an error on the part of the trial judge. Indeed, before this court, counsel for the appellant properly conceded that failing to give a copy of the charge to the jury was not a reviewable error. Although there is an emerging practice of giving the jury a copy of the charge, there is no positive obligation on a trial judge to do so.

[11] We also do not accept the appellant’s assertions that the trial judge misstated the extent of Dr. Weinstein’s recollection of the events of February 17, 1999, or that he erred in his comments on Dr. Turley’s evidence. Nor do we accept that the jury was misdirected by the trial judge when he indicated that the photographs adduced by the appellant of her wrist and arm could be considered when assessing her credibility.

[12] Finally, the appellant invites this court to find that the principle enunciated in ter Neuzen v. Korn, 1995 72 (SCC), [1995] 3 S.C.R. 674 applies to the present case. In ter Neuzen, Sopinka J., writing for the court at para. 41, states that there will be situations “where the standard [medical] practice is “fraught with obvious risks” such that anyone is capable of finding it negligent, without the necessity of judging matters requiring diagnostic or clinical experience”.

[13] In our view, this case does not approach the type of circumstance envisioned by the Court in ter Neuzen in which it would be appropriate for a trier of fact to determine the standard of care independently of the expert medical evidence. The standard practice in removal of a ganglion cyst is not one that is “fraught with obvious risks”.

DISPOSITION

[14] Accordingly, the appeal is dismissed with costs, if sought, to the respondent fixed at $7,500.00, inclusive of disbursements and GST.

“E. A. Cronk J.A.”

“E. E. Gillese J.A.”

“Robert P. Armstrong J.A.”