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Medical Malpractice - Delayed Diagnosis & Multiple Tortfeasors

Victor Lewin - Monday, November 27, 2017
“Much judicial and academic ink has been spilled over the proper test for causation in cases of negligence.”1

Sacks v. Ross, 2017 ONCA 773, a recent judgement by the Ontario Court of Appeal, is yet another decision in which the Court considers the proper test for causation, this time in the context delayed diagnosis medical negligence cases involving multiple tortfeasors.

The Plaintiff, Jordan Sacks, (who appealed along with his wife, three children, and parents), suffered serious injuries arising from complications after routine bowel surgery. The evidence at trial demonstrated that discovery of an anastomotic leak, which led to spilling bowel contents into Mr. Sacks’ abdominal cavity, was delayed. Mr. Sacks suffered septic shock and contracted a rare, unrecognized aggressive necrotizing infection (flesh eating disease), ultimately requiring amputation of both legs below his knees and all of his fingertips.

At trial, the jury found five of the defendants breached elements of their respective standards of care. Yet, they did not find that any of the breaches caused the injuries at issue.

On appeal, the Plaintiffs argued that the wrong causation test had been applied and that this mistake was reflected in the jury’s questions and instructions.

The complexity in cases involving a delay in diagnosis with multiple defendants arises from application of the traditional “but for” test outlined by the Supreme Court in Clements v. Clements, 2012 SCC 32, which prescribes that the question to be answered is whether the plaintiff has shown that one or more of the defendants’ negligence was a necessary cause of the injury (Clements, at para 43). Yet, as the Plaintiffs argued in Sacks, using the word “necessary” may confuse jurors, as plaintiffs need not prove that the defendants’ negligence was the sole cause of the injury, just that it was a cause (Athey v. Leonati [1996] 3 S.C.R. 458 at para 17). In delayed diagnosis cases one defendant’s conduct will rarely, if ever, be the sole cause of the injury. Instead, Plaintiffs’ counsel advocated for the jury question to ask whether the defendant “caused or contributed” to the injuries.

The Trial Judge held the Clements wording on causation applied, and the jury was asked to determine whether the conduct of each defendant – on his or her own – was necessary to bring about Mr. Sack’s injuries.

The Court of Appeal agreed with the Plaintiffs regarding which questions should be appropriately posed to a jury under these circumstances. It found “the trial judge should not have rejected the use of the phrase “caused or contributed to” in the formulation of the jury questions and the instructions, and instead to have insisted on the language from Clements” (at para 122).

Nevertheless, the Court of Appeal found that the jury had clearly accepted the defence’s evidence and theory on the cause of Mr. Sacks’ injuries, and thus, notwithstanding having considered (and answered) improper jury questions, the outcome at trial would have been the same.

Cases involving multiple tortfeasors can be challenging for judges and lawyers alike, let alone juries who generally have no legal training. Clear direction from the court on this issue is helpful, particularly for crafting appropriate jury questions in future cases. However, the outcome from the perspective of Mr. Sacks and his family is particularly tough, considering the Court agreed that the jury questions were flawed on the determinative issue – causation.

This issue may well make it to the Supreme Court of Canada, given (i) arguably, it is not possible to know what answers the jury would have given to the correct questions, and (ii) the Ontario Court of Appeal came to the opposite conclusion, in Surujdeo v. Melady, 2017 ONCA 41, wherein it adopted the trial judge’s original questions – similarly worded to those adjudged incorrect by the panel in Sacks.


1Resurfice Corp. v. Hanke, 2007 SCC 7 at para 20 (McLachlin C.J.)

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