COURT FILE NO.: C-449-14
DATE: 2019/10/29
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Maria Angelica E. Uribe, Ricardo Adolfo Uribe and Elijah Richardo Uribe, a minor, by his litigation guardian, Maria Angelica E. Uribe
Plaintiff
– and –
Dr. Nickoli Tsandelis
Defendant
Graham M. Bennett, Greg A. Carr, for the Plaintiff
Darryl A. Cruz, Christine Wadsworth, for the Defendant
HEARD: October 23, 2019
Turnbull J.
Introduction
[1] This motion arose in an ongoing trial for medical negligence. In this case, the minor plaintiff Elijah Uribe suffered permanent and severe brain damage at birth. The plaintiffs alleged that the defendant Dr. Tsandelis, the attending obstetrician and the Grand River Hospital and/or its nurses were responsible for the infant plaintiff’s injuries.
[2] At the outset of trial, the defendant Dr. Nikoli Tsandelis (“Dr. Tsandelis”) was the only remaining Defendant. Prior to trial, the Plaintiffs settled their claim against Grand River Hospital and the nurses (collectively the “Settled Defendants”) via a Pierringer Agreement. The defendant Dr. Tsandelis has cross claimed against the “Settled Defendants” and that action is a live one at the trial. The “settled defendants” have not participated in this trial. The live issues at trial are standard of care, causation, and apportionment between Dr. Tsandelis and the “Settled Defendants”. The quantum of damages has been agreed to.
[3] Prior to the commencement of the defendant’s case, the parties argued this motion on the appropriate wording of the questions to be put to the jury. I requested sample jury questions from both parties. Their sample questions largely mirrored one another, with some minor differences which were resolved at the time of oral submissions on October 23, 2019. All issues were resolved except one – the phrasing of the jury question on causation.
[4] In the brief reasons that follow, I have concluded that the conventional “but for” test must apply and that the phrase “cause or contributed to” need not be used.
The Proposed Jury Question for Causation
[5] The plaintiffs, in their written factum, submitted that the proposed formulation of the causation question should be:
If your answer to question 1 is yes [re: standard of care], have the plaintiffs proven on a balance of probabilities that Dr. Tsandelis’ breach of the standard of care caused or contributed to Elijah’s injuries? (Emphasis Added)
[6] The defendant, in their written factum, countered the plaintiffs’ proposed formulation of the causation question with:
If your answer to question 1(a) is yes, have the Plaintiffs proven on a balance of probabilities that Elijah’s brain damage would not have occurred without that breach of the standard of care?
The Plaintiffs’ Position
[7] The plaintiffs’ position is that the Supreme Court of Canada in Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, at para 13, (“Clements”), affirmed the use of the phrase “caused or contributed to” in certain circumstances. This language, they submit, is appropriate in circumstances where it is impossible to determine which of a number of negligent acts by multiple actors in fact caused the injury, but it is established that one or more of them did in fact cause it. They referenced the concept of circular causation.
[8] The plaintiffs rely on the recent Court of Appeal for Ontario decision in Sacks v. Ross, 2017 ONCA 773, 283 A.C.W.S. (3d) 740, (“Sacks”), which affirmed the use of “cause or contributed to” in medical malpractice cases involving multiple tortfeasors. They further directed me to the decision of Cheesman et al v. Credit Valley Hospital et al, 2019 ONSC 4996, (“Cheesman”), wherein Koehnen J. also endorsed the use of the “caused or contributed to” phrase. Their position is that in the current case, the alleged negligence of the various defendants overlaps and this may allow the defendants to point the finger at each other, thus escaping liability.
[9] In oral submissions, the Plaintiffs submitted that the phrase “cause or contributed to” makes the test for causation more understandable for the jury. They reiterated that the jurisprudence arising from Sacks and Cheeseman should be followed.
The Defendant’s Position
[10] The Defendant submits that the “but for” standard of causation is the presumptive test – one that should only be departed from in exceptional circumstances. The material contribution test may only be applied where it is impossible for the plaintiff to prove the defendant’s negligence caused the injury on a “but for” standard. The defendant references Cook v. Lewis, 1951 CanLII 26 (SCC), [1951] S.C.R. 830, for the classic example of when the facts of a case make it impossible to apply the “but for” test. Their position is that the trier of law must determine which of the two causation tests should apply, but that only one should apply.
[11] In Surujdeo v. Melady, 2017 ONCA 41, 274 A.C.W.S. (3d) 780, (“Surujdeo”), the Court of Appeal for Ontario held that the trial judge erred in law by approving jury questions which used the phrase “a cause”. The court concluded that this did not reflect the “but for” standard. I was also directed to the recent decision of Cheung v. Samra, 2018 ONSC 3480, 294 A.C.W.S. (3d) 190, where the trial judge rejected the proposed use of the phrase “cause or contribute to” in the jury questions.
[12] It is the Defendant’s position that using the phrase “cause or contributed to” includes two tests for causation. They find such a phrase to be conceptually and grammatically problematic and submit that this would only serve to further confuse the jury. In their view “caused” and “contributed’ are two different concepts. They submit that using the word “contributed” is problematic for two reasons:
a. It is a separate test for causation – namely, material contribution.
b. It confuses the concepts of causation and the apportionment of damages.
[13] Counsel for defendant submitted that simply because there are several parties, it does not mean that the “but for” standard is inapplicable. They reiterated that the “material contribution” standard is only applicable in cases where it is clearly impossible to apply the “but for” standard.
[14] They submit that the decisions of Cole Parliament et al. v. D.W. Conley and V. Park, 2019 ONSC 3996, 308 A.C.W.S. (3d) 218, and Cheesman, relied on by the plaintiffs, are wrongly decided. Furthermore, they assert that the comments of Lauwers J.A. in Sacks, regarding the phrase “cause or contributed to” were all obiter.
Analysis
[15] In the factual matrix of this case, the Sacks approach upon which the plaintiffs urge the use of causal terminology of “cause or contributing” is not required. In my view the factual matrix is not so confusing that the conventional “but for” test cannot be applied in this case even though there are multiple defendants.
[16] The issue in this case relative to the defendant Dr. Tsandelis is whether he breached the standard of care in his treatment of the plaintiff prior to delivery, and in particular, immediately after receiving a phone call from the obstetrical nurse around 10:05am. In particular, did he breach the standard of care in the following respects:
a. by not immediately telling the nurse to make all preparations necessary for a prompt delivery which would have included getting the operating room reserved and set up and notifying the required nurses and anaesthetic and pediatric services.
b. immediately returning to the hospital to personally examine his patient and be available to respond to any further fetal heart decelerations.
c. In delegating authority to the obstetrical nurse to recommence the use of oxycotin in her discretion without advising her that in his view, 15-20 minutes should pass before the further administration of the drug.
[17] The theory of the plaintiffs is that had the defendant done a and b, he would have been present when the fetal heart decelerations began to again become evident on the fetal heart monitoring slip around 10:16am or 10:17am and when the heart rate precipitously decelerated at 10:18am. At that point, it is argued that Elijah could have been delivered expeditiously because the scheduled caesarian section of another patient at 10:30am would have been postponed at the time of his instructions which should have been given during the10:05 phone call with the obstetrical nurse.
[18] In other words, the plaintiffs’ theory is that Elijah’s brain damage would not have occurred but for the breach of the standard of care by Dr. Tsandelis.
[19] Because of the Pierringer agreement, it is only the defendant Dr. Tsandelis who is cross claiming against the Grand River Hospital and its nurses. The cross claim is based on the allegation that the nursing staff were too slow moving the plaintiff to the operating room from her delivery room and as a result the C-section performed by Dr. Tsandelis was delayed which caused Elijah’s brain damage. The alternative claim against the hospital is that its employees failed to have the required operating room available and set up for the crash C-section and the attendant delay caused the child’s injuries.
[20] In my view, these are rather discrete and separate factual situations which the jury will have to analyze. I do not feel that it will cause confusion for the jury by using the “but for” test slightly modified in accordance with the suggestions by counsel for the defendant.
[21] In this case, the jury will be asked, depending on answers given to the questions on standard of care and causation, to allocate a percentage of liability to each party. They will understand that it is open to them to find contributory negligence if they consider it appropriate on the evidence. In my charge to the jury, I can explain that it is open to the jury to find that Dr. Tsandelis’ breach(es) of the standard of care may not be the only cause of Elijah’s brain injury and that the jury is allowed to conclude that the nurses and/or the hospital also caused the child’s brain injuries. They will see from the questions given to them that if they find both parties did cause damage, they will be obliged to allocate the degree of responsibility.
[22] I accept the submissions of the defendant that the helpful comments of Lauwers J.A. and the Court of Appeal were made in obiter, and clearly intended to assist trial judges in appropriate cases – this is not one of them. He emphasized that it is important for trial judges to tailor the questions to the specific findings of fact to decide the case and that they should be expressed as simply and clearly as possible.
[23] The causation question which will be put to the jury, both with respect to the defendant Dr. Tsandelis and with respect to the nurses and Grand River Hospital shall be the following:
2(a): If your answer to question 1(A) is yes, you must answer the following question.
Have the plaintiffs proven on the balance of probabilities that but for the breach(es) of the standard of care by Dr. Tsandelis, Elijah would not have suffered brain damage?
Answer: yes: _______ no: _______
2(b): If your answer to question 2(a) is yes, how did Dr. Tsandlis’ breach(es) of the standard of care cause Elijah’s brain damage? Please provide clear and specific answers.
4(a): If your answer to question 3(A) is yes, you must answer the following question.
Has the defendant proven on the balance of probabilities that but for the breach(es) of the standard of care by the hospital and/or the nurses, Elijah would not have suffered brain damage?
Answer: yes: _______ no: _______
4(b): If your answer to question 4(a) is yes, how did the breaches of the standard of care of the hospital and/or the nurses cause Elijah’s brain damage? Please provide clear and specific answers.
Turnbull J.
Released: October 29, 2019.
COURT FILE NO.: C-449-14
DATE: 2019/10/29
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Maria Angelica E. Uribe, Ricardo Adolfo Uribe,
Elijah and Richardo Uribe, a minor, by his litigation guardian, Maria Angelica E. Uribe
- and –
Dr. Nickoli Tsandelis
RULING ON MOTION
Turnbull J.
Released: October 29, 2019