CITATION: McDonald-Wright v. O’Herlihy, 2007 ONCA 89
DATE: 20070213
DOCKET: C43587
COURT OF APPEAL FOR ONTARIO
SIMMONS, GILLESE and JURIANSZ JJ.A.
B E T W E E N :
BEAU McDONALD-WRIGHT and MISHKA McDONALD minors by their Litigation Guardian, Audrey McDonald, DOUGLAS WRIGHT, SIMONE McDONALD, TRILANE TENN and the said AUDREY McDONALD personally
Susan M. Chapman
for the appellants
(Appellants)
Frank J. McLaughlin
Christopher A. Wayland and
- and -
Sarah W. Corman
for the respondent, P.J. O’Herlihy
P. J. O’HERLIHY, R. SEN, A. P. DI PIERDOMINICO, MED‑SCAN ULTRASOUND SERVICES LTD. and MENOTTI MAZZUCA
V. Ross Morrison
for the respondents
Med-Scan Ultrasound Services Ltd.
And Menotti Mazzuca
(Respondents)
Heard: January 29, 2007
On appeal from the judgment of Justice Joan L. Lax of the Superior Court of Justice, sitting with a jury, dated February 18, 2005, and the ruling dated April 26, 2005, with reasons reported at [2005 CanLII 13806 (ON SC)](https://www.canlii.org/en/on/onsc/doc/2005/2005canlii13806/2005canlii13806.html), 75 O.R. (3d) 261.
GILLESE J.A.:
[1] Following a five-week trial presided over by Lax J., a jury found that there was no negligence on the part of the respondents, Dr. Patrick O’Herlihy, and Mr. Menotti Mazzuca, that caused or contributed to the inability of the appellant, Audrey McDonald, to terminate her pregnancy at or about 22 weeks gestation.
[2] This is an appeal from the jury verdict and from the trial judge’s subsequent decision that there were no outstanding legal issues requiring adjudication.
[3] For the reasons that follow, I would dismiss the appeal.
BACKGROUND
[4] Beau McDonald-Wright was born on December 25, 2000, with a rare congenital abnormality known as “frontal encephalocele,” a neural tube defect. Audrey McDonald is Beau’s mother. She was referred to the respondent, Med-Scan Ultrasound Services Ltd., by her family doctor for a second trimester fetal ultrasound on September 18, 2000. Menotti Mazzuca is an ultrasound technician and the owner of Med-Scan. He performed the ultrasound on Ms. McDonald. He took a series of still images that he provided to the respondent, Dr. Patrick O’Herlihy, along with a completed worksheet on which he had recorded his observations. Dr. O’Herlihy is a radiologist with over twenty years’ experience. He had worked with Mr. Mazzuca, who had been a medical doctor in Italy, for more than thirteen years.
[5] The primary liability issue at trial was whether the performance of the fetal ultrasound study by Mr. Mazzuca, and its interpretation by Dr. O’Herlihy, fell below the standard of care applicable to each of them at the relevant time.
[6] In addition to a “wrongful birth” claim by the mother, the appellants brought a “wrongful life” claim on behalf of the fetus. The “wrongful birth” claim was not controversial. However, at the opening of trial, the respondents brought a Rule 21 motion to strike the “wrongful life” claim. The trial judge dismissed the motion and allowed the claim to proceed to trial so that it could be decided on the basis of a full factual record.
[7] The jury was never instructed on the two claims because the trial judge conducted the trial on the understanding that the underlying legal differences between the claims were relevant only to damages. In the end, because of the jury verdict of no negligence on the part of either Dr. O’Herlihy or Mr. Mazzuca, the trial judge held that the legal questions surrounding a “wrongful life” claim were moot and did not warrant determination as they would have no practical effect.
[8] Shortly after the trial commenced, Mr. Mazzuca brought a motion to discharge the jury on the ground of complexity. The appellants supported the motion; Dr. O’Herlihy opposed it. The trial judge reserved on the motion on the basis of prematurity. The trial proceeded to completion and, following the jury’s verdict, the trial judge released reasons in which she dismissed the motion.
[9] A factual issue arose during the trial. Mr. Mazzuca testified that he left the examination room during the course of performing the fetal ultrasound in order to consult with Dr. O’Herlihy about his suspicion of an abnormality of the fetal face. He said that Dr. O’Herlihy instructed him simply to complete the examination. Dr. O’Herlihy testified that no such conversation occurred. The appellants’ counsel cross-examined Dr. O’Herlihy on his OHIP billing in relation to the ultrasound, putting it to Dr. O’Herlihy that he had in fact billed for an appointment during which he had “participated” in the appellant mother’s examination. Dr. O’Herlihy’s trial counsel objected, at the end of his examination, on the ground that the records had not been produced and, as they were not privileged, could not be used as of right to impeach credibility. The trial judge instructed the jury to disregard this evidence.
[10] The appellants argue that the trial amounted to a miscarriage of justice because the trial judge failed to render reasons in a timely manner with respect to the motion to strike the jury and failed to ensure that the wrongful life claim was adjudicated. They also argue that the trial judge erred in excluding evidence of the OHIP billing. Consequently, they say that the jury verdict must be set aside and a finding of negligence against some or all of the respondents substituted or a new trial ordered.
ALLEGED MISCARRIAGE OF JUSTICE
Motion to Strike the Jury
[11] The motion to strike the jury was argued on the first morning of trial. On considering the motion, the trial judge was of the view that, in accordance with authority,[^1] the appropriate way to proceed was to reserve on the motion.
[12] After the jury rendered its verdict, the trial judge issued reasons that addressed a number of matters, including the motion. She explained that she initially reserved because, when the motion was brought at the commencement of trial, she did not know whether the assessment of damages would be factually complex as well as legally complex. Nor did she know whether the medical evidence would be too difficult for the jury.
[13] In her reasons for refusing to discharge the jury, the trial judge began by reviewing the applicable legal principles. She noted that this court has made it clear that a trial judge must have substantial reasons to displace a litigant’s prima facie right to trial by jury. Further, although a trial judge has a wide discretion on a motion to strike a jury notice, the moving party has a substantial onus because trial by jury is a fundamental right. See Hunt (Litigation guardian of) v. Sutton Group Incentive Realty Inc. (2002), 2002 CanLII 45019 (ON CA), 60 O.R. (3d) 665 ) (C.A.).
[14] The trial judge explained her assessment of the medical and other evidence and stated that as the evidence unfolded, it did not appear to be very different from the kind of evidence commonly dealt with by civil juries in medical and personal injury cases. She was “confident” that the jury, properly instructed, was in as good a position as she to decide the factual issues and that none of the evidence was beyond the jury’s comprehension.
[15] The trial judge also considered the character of the jury and concluded that the jurors were dedicated, took their responsibilities seriously and had the benefit of experienced counsel who knew their cases thoroughly and were exceptionally skilled at presenting evidence before a jury.
[16] I see no error in the approach followed by the trial judge. On the contrary, this approach conforms with the guidance of this court in Migos, supra, and served the interests of justice. Nor do I see any error in the legal principles articulated by the trial judge or their application. Her reasons are a model of clarity and demonstrate that she fully and fairly considered the applicable legal principles and competing considerations in respect of all of the parties.
The “wrongful life” claim
[17] Similarly, I see no error in the way in which the trial judge dealt with the issues surrounding the “wrongful life” claim.
[18] The trial judge concluded that liability questions could be put to the jury and fairly determined by them without instruction on “wrongful life”. Even if the appellants’ trial counsel misunderstood how the trial judge intended to proceed, as was alleged before this court, there was no error or miscarriage of justice. The respondents owed the same duty of care and were held to the same standard of care in respect of the appellant mother and the fetus. The jury’s task was to resolve the factual elements common to both causes of action. Its determinations were conclusive of liability, causation and the assessment of damages in both causes of action. In light of the manner in which the appellants’ case was put to the jury, there can be no question but that the jury was fully aware of the existence of the infant appellant’s claim.
[19] In the circumstances, I see no error in the trial judge permitting the jury to determine the allegations of negligence without instruction on the legal differences between a “wrongful life” and a “wrongful death” claim. Nor do I see any basis for interfering with the trial judge’s determination that, given the jury verdicts, the legal issues were rendered moot.
Exclusion of the OHIP Billing
[20] I see no error in the trial judge’s ruling on this matter. Dr. O’Herlihy did not prepare or submit the OHIP billing. As the evidence on the record is that the clinic performed those functions, I see no basis on which to view the billing as a prior statement by Dr. O’Herlihy. Thus, it is difficult to see how the apparently erroneous billing could be used to impeach Dr. O’Herlihy.
[21] Further, Dr. O’Herlihy testified that he could not recall whether he was in the clinic on the day in question. Even assuming that Dr. O’Herlihy was aware of the specific OHIP code that had been billed, the OHIP bill does not contradict his evidence concerning whether he was at the clinic on the day on which the ultrasound was performed.
[22] Finally, neither Mr. Mazzuca nor Dr. O’Herlihy testified that Dr. O’Herlihy performed some of the procedure or reviewed any of the images before the appellant mother left. The OHIP billing code in question covers the situation where the radiologist is present in the clinic during the examination and does one of these activities, that is, either performs some of the procedure or reviews the images before the patient leaves the clinic. As the evidence of the OHIP billing supports neither Mr. Mazzuca’s nor Dr. O’Herlihy’s version of events, it is irrelevant to the credibility dispute between them.
CONCLUSION
[23] It is not completely clear whether the appellants argue also that the jury verdict was perverse. To the extent that they argue that, in light of Mr. Mazzuca’s evidence, the verdict is unreasonable because it found none of the respondents liable, I disagree. It was clearly open to the jury to reject Mr. Mazzuca’s evidence that he identified a suspected abnormality in the fetal face. Moreover, there is ample evidence on the record to support the jury verdict.
[24] Accordingly, the appeal is dismissed with costs, if demanded, to Dr. O’Herlihy fixed at $20,000 and to Med-Scan and Mr. Mazzuca fixed at $1,200, both such amounts are inclusive of GST and disbursements.
RELEASED: February 13, 2007 (“JS”)
“E. E. Gillese J.A.”
“I agree Janet Simmons J.A.”
“I agree R. G. Juriansz J.A.”
[^1]: This court stated in Migos v. Zurich Indemnity Co. of Canada, [2000] O.J. No. 3540 and Sloane v. Toronto Stock Exchange (1991), 1991 CanLII 7315 (ON CA), 5 O.R. (3d) 412 that it is generally preferable for a trial judge to hear some evidence before deciding whether the jury should be discharged. If the evidence, as it unfolds, is overly complex, some or all of the issues may be removed from the jury’s consideration.