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Medical Malpractice Claim Not Too Complex for a Jury

Howe v. Hwang 2018 BCSC 90 involved a medical malpractice claim where the injured claimant alleged that not only the wrong surgery was performed on her by the defendant doctor, but that the wrong surgery was done incorrectly resulting in life threatening complications and additional surgeries to save her life.

The parties agreed on quantum which is the amount of compensation that the injured claimant was entitled to. The only issue for trial was liability because, despite the disturbing allegations made against him, the defendant doctor argued he was not liable or at fault.

The defendant doctor also argued that the trial should not proceed with a jury and he brought an application to strike the jury so that the trial would proceed by a judge alone. When considering and deciding whether or not a case is appropriate for a jury, the following factors are considered by the presiding judge:

  • the anticipated length of trial
  • the number of experts to be called
  • the volume of expert evidence
  • the nature and character of expert evidence

In considering the facts in this case, the defendant doctor’s application to strike the jury was dismissed on the following grounds:

[42]         It may go without saying that the jury in this case will be required to engage in a prolonged examination of documents, that the resolution of the issues before this jury will require a scientific or local investigation and that the issues are of an intricate and complex nature. Thus my discretion is engaged. 

[43]         Amongst the factors which I have considered in determining that it is appropriate to have this case tried by a judge and jury, I have considered the following:

1.     The anticipated length of the trial.

[44]         The trial will not be a long one. It is presently anticipated by counsel that it will take perhaps ten or 11 days of the three weeks set aside. This reduction in time is primarily the result of the resolution of the claims against Dr. Crowley, and the agreement which has been reached with respect to damages. The jury will not be obliged to retain the technical knowledge they acquire for many weeks before delivering its verdict

2.     The number of experts to be called.

[45]         As I have indicated, the plaintiff will be relying on two experts and the defendant on three.

3.     The volume of expert evidence.

[46]         As is the case with most expert reports, the text is dense and replete with scientific terminology. But in objective terms the reports, as I have indicated, total 32 pages, far from a vast volume of expert reports.

4.     The nature and character of the expert evidence.

[47]         The jury will be obliged to consider conflicting opinion with respect to the conduct of the defendant. I have reviewed the medical reports. While I am untrained in medical matters I have no difficulty in following the rationale expressed by the experts or understanding the terminology used. I cannot see that a jury, properly instructed, will have difficulty in coming to a conclusion on the basis of technical issues alone. The opinions of all five experts are clearly stated and, apparently, objective. Juries are, of course, often called upon to deal with conflicting expert evidence with respect to medical issues in the context of personal injury litigation. I do not regard the terminology which appears in the pleadings or the expert reports as being mysterious or opaque. I am confident that with supplementary assistance from the experts, counsel and the presiding judge, the reports may be appropriately dealt with by a jury.

[48]         In summary, although the jury in this case will be obliged to deal with technically demanding scientific medical issues and unfamiliar terminology, as well as the conflicting evidence of experts, I am not satisfied that those considerations put this case beyond the range of functions credited to juries in our system.

[49]         As previously indicated to counsel, the application is dismissed.

Tags: Jury, Medical Malpractice

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"Jacqueline A. Small is a personal injury lawyer with over 15 years of experience and a partner with Holness Law Group."

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