Nova Scotia Court of Appeal Denies Injured Patient’s Right to Jury Trial

by John McKiggan

Our Court of Appeal recently released a decision upholding the decision of Justice David MacAdam denying a patient who claimed she was the victim of medical malpractice the right to trial by jury.

In Anderson v. QEII Health Sciences Centre, the plaintiff suffered a brain injury which she claimed was due to negligent medical care.

Patient Wanted Jury

She sued the hospital where she was treated and the two physicians who were in charge of her medical care. When she set the matter down for trial she filed a jury notice. In other words, rather than having the trial heard by a judge alone she wanted the opportunity to present her claim to a jury of her peers.

Defendants did want a Jury

The defendants moved to strike the jury notice. In other words, they wanted to force the plaintiff to have her claim heard by judge alone. The defendants claimed that the medical evidence that would be submitted at the trial would be too complicated for the average juror to understand.

Jurors as capable as Judges

Justice MacAdam decided that jurors were just as capable as judges to understand complicated medical evidence.

I am not persuaded that given sufficient time, and an opportunity revisit areas of uncertainty, a jury of seven is not in as good a position to examine, weigh and determine scientific or any other issues, as a judge sitting alone. On what basis a judge, untrained in the scientific or technical area under review, is better qualified to determine whether a person with education and training related to the particular scientific or technical area in question, has acted properly or improperly, is unclear. Nothing in the submissions of counsel, particularly counsel for the individual defendants, satisfies me that this is either probable, or even a serious possibility.

Lack of Time a Disadvantage

However, Justice MacAdam felt that a jury trial would be a significant disadvantage in hearing claims involving complicated expert testimony because judges can take as long as they need to reach their decision whereas jurors are under time pressures.

Justice MacAdam stated:

There is, however, one difference in how a jury, as opposed to a judge alone, would be able to conduct a review of the evidence, including particularly the expert evidence, and the weighing of the submissions of counsel. Although it has been stated a jury can take as long as required, practically, they are limited to making an “almost” immediate decision. Whether it be hours, days, or even, in some cases, a couple of weeks, there are effectively time restraints on their reaching a conclusion.

No Time Limits on Juries

There are no time limits on how long a jury may take to render a decision. Juries can take as long as they need to consider all of the evidence before them. Juries also have the right to return to court to ask for instructions from the judge on any legal issues. Juries even have the opportunity to reply the testimony for various witnesses. They also take all of the medical reports and all other exhibits presented during the trial with them into the jury room.

However, that being said, most juries reach their decision in hours, days or sometimes weeks. Whereas judges in complex claims often take months to consider the evidence and render their decision.

In upholding Justice MacAdam’s decision to strike out the jury notice the Court of Appeal said:

With respect, to suggest, as have the appellants, that this case stands for the proposition that a judge may strike a jury notice simply because it would be more conveniently tried by a judge sitting alone, is a distortion of the carefully crafted and case specific reasoning in the judgment under appeal.

Medical malpractice claims almost always involve numerous experts and complicated medical evidence. However, they are no more complicated then many other types of complex civil litigation.

The simple fact is that medical malpractice claims are often complicated because the defendants make the case complicated. It is that complexity that has led some judges to deny injured victims the right to have their claims heard by a jury.

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