The Wagners - A Serious Injury Law Firm blog shares Personal Injury stories and opinions relevant to Halifax, Nova Scotia residents. Let us know what you think.

Wagners Obtains Seminal Decision on Medical Malpractice Jury Trial

Victor Lewin - Thursday, June 02, 2011

Compartment syndrome is one of the most common complications associated with arm and leg fractures. It results in tissue death from lack of oxygenation. If not properly guarded against, compartment syndrome can result in blood vessels being compressed by the raised pressure within the compartment. Unless it is recognized and treated at an early stage, it can have very serious and permanent consequences. Doctors and nurses responsible for treating patients suffering fractures must be on the lookout for the signs and symptoms of compartment syndrome. Failure to do so is below the standard of care. If compartment syndrome is suspected, doctors must act immediately because waiting can result in grave injuries.

Following a bicycle accident, a five year old child was treated in a Halifax hospital for his arm fracture. The surgery went well. However, in the days that followed, he began to experience increases in pain, pins and needles, and numbness. His fingers became increasingly more swollen. These are signs of the onset of compartment syndrome. Unfortunately, the doctor in charge of his care did not respond in the urgent fashion required. It took three days for nurses and doctors to finally intervene but it was too late. The young boy had suffered irreparable tissue damage to his arm. He grew up with a claw-like, deformed limb and will suffer with functional limitations for the rest of his life.

He brought a law suit against the hospital and his doctor, for failing to recognize and treat the obvious onset of compartment syndrome. The case went to a trial and was heard before a jury. In a civil trial, an injured victim has the burden of proving negligence "on the balance of probabilities". In this case, the jury ought to have asked whether it was "more likely than not" that the boy's doctor was negligent. Unlike criminal trials, the law does not require plaintiffs to prove their case "beyond a reasonable doubt".

Numerous experts testified over a two week period. After this time, before entering into their deliberations, the judge instructed the jury on the burden of proof. On numerous occasions he stated, "if you are in a state of doubt, the plaintiff has not met his burden". Following this instruction, jury was asked to deliberate. After two days of deliberation, they returned with a split verdict. They found that the injured boy had not met his burden.

The lawyers at Wagners appealed the jury charge to the Nova Scotia Court of Appeal. They argued that the boy did not get a fair trial because the jury was instructed on the law in a manner that was fundamentally incorrect. The jury was lead to believe that if there was any doubt, they had to find against the injured boy. The Court of Appeal unanimously agreed that the trial judge had erred. The Court of Appeal found that the case had not been fairly put to the jury. The error in the instruction meant that "there is a very serious likelihood that the jury would have been confused and would have misapprehended the correct standard of proof based on the instructions given to them".

The Court of Appeal found that the Wagners lawyers were correct. The unanimous decision concluded: "there is a serious risk the charge has left the jury with a misapprehension of the proper legal principles to apply in deciding proof, a substantial wrong arises and the appropriate remedy is a new trial".

Sometimes victims injured as a result of someone's negligence will have their claims assessed at trial. It is critical to achieving justice that they receive fair trials. This can only be accomplished if the correct burden of proof is applied. This case successfully argued by the experienced lawyers at Wagners sets a strong precedent that will help ensure that injured victims are treated fairly by the justice system.

Back to blog