Ronald Manes

The appellants appealed a jury verdict in a medical malpractice action arising from the death of Kerry Samms from cancer.

The jury found that the defendants, including the family physician Dr. Wilraad Lottering, had not fallen below the standard of care.

The appellants challenged the trial judge's jury instructions on two grounds: (1) the standard of care instruction, arguing the jury was improperly directed to rely solely on expert evidence and could not apply common sense to determine whether standard medical practices were themselves negligent; and (2) the error of judgment instruction, arguing it was inappropriate in a case involving administrative failures rather than clinical judgment.

The Court of Appeal dismissed the appeal, finding that when read contextually, the jury instructions properly conveyed the applicable legal principles and that the jury would have understood they could apply common sense to assess whether standard practices were negligent.

The plaintiff, a golf professional, brought a medical malpractice action against the defendant orthopedic surgeon regarding an elective total wrist fusion surgery.

The plaintiff alleged that the defendant failed to obtain informed consent by not disclosing alternative, less drastic surgical options that would have preserved some wrist mobility, which was essential for his livelihood.

The court found that the defendant breached his duty of disclosure by failing to explore the plaintiff's specific needs, inadequately describing the surgery, and failing to discuss viable alternative procedures like a four-corner fusion or proximal row carpectomy.

The court concluded that both the subjective and objective tests for causation were met, as neither the plaintiff nor a reasonable person in his position would have consented to a total wrist fusion if properly informed.

The plaintiff was awarded $20,000 in general damages and $40,000 for past loss of income.