Court File and Parties
COURT FILE NO.: 3846/11 DATE: 2019 04 11 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: KELSEY WOODS, a person under disability by her litigation guardian MICHAEL WOODS, KARLI WOODS, BERNICE BOOTH, AND MICHAEL WOODS, personally, Plaintiffs AND: DR. ALLAN JACKIEWICZ and DR. RONIT MESTERMAN, Defendants
BEFORE: Conlan J.
COUNSEL: Paul Cahill and Samantha Shatz, Counsel for the Plaintiffs Mark Veneziano, Dena Varah and Robert Trenker, Counsel for the Defendant, Dr. Allan Jackiewicz
Endorsement
Objection to the Closing Address to the Jury Delivered by Counsel for the Plaintiffs
The Nature of the Action
[1] The Plaintiffs, members of the Woods family, have sued the Defendant, Dr. Jackiewicz, for negligence.
[2] It is alleged that the Defendant obstetrician breached the standard of care in his management of Bernice’s pregnancy, with twins, in 1991, and that the said conduct caused one of the twins, Kelsey, to incur brain damage (cerebral palsy).
The Issue
[3] The theory of the Plaintiffs is that (i) Dr. Jackiewicz breached the standard of care in several respects, and (ii) that those breaches delayed the diagnosis of a condition called twin to twin transfusion syndrome, which condition if diagnosed earlier would likely have been treated with a technique known as amnioreduction, and such treatment would likely have prolonged the pregnancy and resulted in a normal outcome for Kelsey.
[4] It is undisputed among all of the experts who have testified at trial that there is a link between cerebral palsy and premature birth, and Kelsey was born at about 27 weeks gestation, through an emergency caesarean section.
[5] The most concrete evidence at trial in support of the proposition that amnioreduction would likely have prolonged the pregnancy came from Dr. Barrett, an expert called by the Plaintiffs. Dr. Barrett testified that amnioreduction for Bernice would likely have prolonged the pregnancy by about five weeks or so.
[6] Dr. Cecil Hahn, another expert called by the Plaintiffs, testified that a prolongation of the pregnancy by about five weeks would have probably resulted in Kelsey not having cerebral palsy.
[7] On the issue of causation, which issue is hotly contested in this case, in his closing address to the jury, counsel for the Plaintiffs invited the triers of fact to find in favour of the Plaintiffs even if they conclude that amnioreduction would likely have prolonged the pregnancy but for a shorter duration than five weeks.
[8] Counsel for the Defendant objected to that invitation and requested that this Court provide a remedy. It was first suggested that the Court make it crystal clear to the jury that Dr. Hahn’s penultimate opinion on causation was dependent on the five-week assumption. When it was pointed out that paragraph 69 of the Charge to the jury states precisely that, it was requested that the Court go further and tell the jury that it must find against the Plaintiffs on causation unless it is satisfied that amnioreduction would have prolonged the pregnancy by no less than five weeks.
[9] I declined to give that additional instruction to the jury, but the parties deserve to know why that decision was made.
Reasons for Oral Ruling
The Evidence
[10] I respectfully disagree with counsel for the Defendant that there is no evidence before the jury that any prolongation of the pregnancy less than five weeks would likely have resulted in no brain damage for Kelsey.
[11] A fair reading of Dr. Barrett’s evidence in its totality is that his opinion was that amnioreduction would likely have extended the pregnancy by approximately five weeks, not precisely five weeks or a minimum of five weeks.
[12] Further, Dr. Barrett testified that amnioreduction can reverse the twin to twin condition almost immediately.
[13] Dr. Farine, an expert witness called by the Plaintiffs, testified that he was uncertain how long amnioreduction would have prolonged this pregnancy for Bernice, however, even with that uncertainty, he still opined that it was likely that Kelsey would have had a normal outcome if Dr. Jackiewicz did what he should have done.
[14] In addition to his opinion that, based on the approximate five-week assumption Kelsey would likely have been born without brain damage, Dr. Hahn gave evidence that every week that a pregnancy is prolonged, that is every week less that a baby is born premature, makes a significantly positive difference in the outcome for the baby, including the likelihood of cerebral palsy.
[15] Perhaps more important, near the conclusion of his examination-in-chief, very shortly after he gave his causation opinion and referenced specifically the five-week assumption based on the evidence of Dr. Barrett, Dr. Hahn stated that steroids and a prolonged pregnancy would have markedly reduced the risk of cerebral palsy for Kelsey. That latter comment was not, it seems from a reading of the evidence, contingent on a duration of five weeks.
A Reasonable Inference to be Drawn from the Evidence
[16] On that evidence, collectively, if accepted by the triers of fact, the jury would clearly be entitled to find that amnioreduction would likely have prevented Kelsey’s brain damage even if it resulted in a prolongation of the pregnancy for a duration something less than five weeks.
The Dilemma of Statistics
[17] Counsel submitted that such a finding of fact by the jury would be improper because it would depend on statistical evidence unrelated to this particular case, such as Dr. Hahn’s testimony about the relationship between gestational age and morbidity (including cerebral palsy).
The Law
[18] The Supreme Court of Canada has settled this issue, in Benhaim v. St-Germain, 2016 SCC 48, which case, conveniently for us, dealt with causation in the medical malpractice context.
[19] We glean the following important principles from that decision. General trends in the population, general statistics, are not determinative in particular cases. Of course, however, statistics may be taken into account in deciding causation. “Drawing an inference from a general statistic in a particular case is an inherent, and often implicit, part of the fact-finding process. A statistic alone reveals nothing about a particular case. It must be interpreted in light of the whole of the evidence. This interpretation is the role of the trial judge [or, in our case, the jury], and it is entitled to considerable deference on appeal”. Benhaim, supra, at paragraphs 75, 77 and 78.
The Law as Applied to our Facts
[20] Thus, even if it is true that Dr. Hahn’s evidence about gestational age and morbidity had nothing to do with Kelsey specifically, which when I review the verbatim testimony I think is a highly arguable point, there is nothing wrong with our jury finding facts relevant to causation that are based, in part, on those statistics, provided that there is an evidentiary bridge between the generalities and Kelsey in particular.
[21] The rest of the trial evidence summarized above provides that evidentiary bridge. It is not meant to be a particularly sticky needle to thread.
An Overall Contextual Analysis
[22] The Defendant’s counsel’s objection must be viewed contextually. The Charge to the jury, delivered of course after the closing address on behalf of the Plaintiffs, is replete with references to the five weeks specifically – paragraphs 53, 68, 69, 73, and 77 (the difference between 32 and 27 weeks). The jury will know that the only actual number attached to the alleged prolongation of the pregnancy at the hands of amnioreduction is approximately five weeks (that opined to by Dr. Barrett).
[23] The Charge to the jury also has numerous references to the duty to consider all of the evidence, testimonial and by way of exhibit, adduced by both sides; and the Charge has a detailed description of direct and circumstantial evidence, the need to have inferences be reasonable ones that are derived from actual evidence, and the obligation to avoid speculation and guesswork (paragraphs 20 to 25). I am confident that the jury has the tools needed to understand the principles of evidence.
[24] Further, and this is in no way meant as a knock against counsel on either side, whom are all very impressive litigators, the evidentiary record is chalk-full of studies and literature which have nothing at all to do with Bernice and Kelsey and from which the jury is being asked, implicitly and at times expressly, to infer certain things.
[25] As well, in their own closing address, counsel for the Defendant highlighted for the jury statistical evidence about how amnioreduction can be relatively unsuccessful and how, according to Dr. Mundle, a prolongation of a pregnancy in a twin to twin transfusion syndrome scenario, generally (not necessarily in this case), can be harmful for either or both babies. The only purpose of highlighting that evidence would have been to invite the jury to infer that amnioreduction would likely not have been done for these twins and, even if it had been done, it likely would not have made any positive difference to the outcome for Kelsey.
[26] That is good advocacy; I make no criticism of it. At the same time, however, I find nothing improper about the closing address delivered by counsel for the Plaintiffs. I certainly was not prepared to take away from the triers of fact a route to causation in favour of the Plaintiffs that is available to them on the totality of the evidence.
[27] The nature of the beast is that causation in medical negligence cases is idiosyncratic. There is really nothing like it in law. It almost always involves expert medical evidence, and lots of it. It is almost entirely dependent on circumstantial evidence and the inferences to be drawn from it. It almost always involves statistics because the experts rely on authoritative papers and studies to form their opinions, and those sources almost invariably present statistics extrapolated from case studies.
No Prejudice to the Defendant
[28] It is worth noting that the impugned portion of the closing address delivered by counsel for the Plaintiffs in no way prejudices or creates any unfairness to Dr. Jackiewicz.
[29] The case has been meticulously defended. There has been no strategy throughout the trial to concede the availability and efficacy of amnioreduction for Bernice but simply attack the five-week assumption, for example. Quite to the contrary. If the jury gets past standard of care, the “causation trees” filed by counsel for the Defendant as part of their closing address, which documents the jury has, make it clear the gauntlet that has to be run for the Plaintiffs to succeed on causation. The lack of any further instruction to the jury as requested now, besides the instruction being unnecessary and wrong in law, would make little to no difference to the merits of the Defendant’s case.
Conclusion
[30] I think, respectfully, that the instruction sought by counsel for the Defendant would not be consistent with the evidence at trial, or the law, or the realities of evidence on causation in medical malpractice cases generally. And I do not think that, on an application of Benhaim, supra to our case, such an instruction is appropriate.
[31] I am grateful to counsel for their assistance on this issue.