Court Refuses to Fast Track Nova Scotia Medical Malpractice Claim of Elderly Plaintiff – Langille v. Dzierzanowski
The Supreme Court of Nova Scotia just released its decision in Langille v. Dzierzanowski .
The plaintiff, Walter Murray Langille, is 91 years old. He filed a medical malpractice claim against the defendants alleging they removed part of his colon because they mistakenly diagnosed him with colon cancer.
Application to Action
This case is of interest because it was started as an Application under Nova Scotia’s new Rules of Court. The defendants brought a Motion to convert the Application to an Action.
Under Nova Scotia Civil Procedure Rule 5, Applications are intended to be:
“…a speedy, flexible alternative to a trial”.
A claim filed by Application must be heard by the court no more than 25 days after the claim is filed.
Court Has Broad Powers
Under Rule 5, judges are given broad powers to manage the progress of an Application the claim including ordering disclosure, permitting or limiting certain types of discovery, ordering cross examination to take place outside of court, limiting the time for cross examination, setting dates for filing of affidavits and briefs, scheduling a hearing and providing any necessary directions to expedite the claim.
Defendants Request Means 4 Year Delay
In the Langille case the defendant doctors brought a Motion to convert the Application to an Action. This would mean that the claim would progress as a standard claim and a trial in the matter would likely not happen for at least 4 years.
The plaintiff filed expert evidence from an actuary indicating there was a 75% chance the plaintiff would die before the case came to trial if the claim was delayed.
Justice Kennedy acknowledged that, given the age of the plaintiff, the time involved in getting the claim to trial was:
“…a real and legitimate factor in this proceeding”.
Claim Too Complicated to be Fast Tracked
The doctors argued that the medical malpractice claim was “too complex” to proceed other then by Action.
Doctors Say They Want a Jury
Chief Justice Kennedy noted at paragraph 8 of his decision:
“The doctors have indicated that credibility will be an issue and that expert evidence will be involved. Subsequently, they wish to have a trial by jury.”
Nova Scotia’s Rules of Court do not allow claims that are brought by Application to be heard by a jury.
Chief Justice Kennedy decided to grant the defendnats motion to convert the Application to an Action, despite the delays that would cause in getting the case to trial. His Lordship concluded, at paragraph 32:
“It would be unreasonable to deprive the doctors of their right to a jury trial, a prima facie right commonly protected in this jurisdiction and a process well suited to determining the resolution of the issues of fact that can be anticipated at this trial.”
Pain & Suffering Claims Die With the Victim
Under Nova Scotia’s Survival of Actions Act, non-pecuniary claims (in other words, claims for compensation for “pain and suffering”) die with the victim. In other words, if the plaintiff, Mr. Langille, passes away before his trial, his medical malpractice claim is not likely to proceed since the majority of his claim would be for compensation for his past pain and suffering.
It is ironic that one of the significant reasons that the court gave for converting the claim to an Action, and the delays that will create, was the fact that the defendants claimed they want a jury trial.
As any medical malpractice lawyer can tell you, it is extremely unusual for defendants in a medical malpractice claim to want a jury trial. In fact, it is common for doctors and hospitals to claim that medical malpractice cases are too complicated for a jury.
See for example the following Nova Scotia cases where defendant doctors tried to strike out a Jury Notice filed by the plaintiff in a medical malpractice claim:
You get the idea.
Will Doctors Continue to Insist on a Jury Trial?
If the plaintiff, Mr. Langille, manages to beat the odds and survive until his trial, it will be interesting to see if the doctors insist on their right to a jury when it is actually time to go to court.