Appeal Court Upholds Jury Decision in Med Mal Trial: Goodwin v Olupona

by John McKiggan

Judge or Jury?

In most provinces in Canada, it is possible to have a civil case tried by judge alone or by judge and jury. I discussed this recently in an article on my Halifax Personal Injury Lawyer Blog, Do I have a right to a jury trial in personal injury claims?

The Nova Scotia Supreme Court recently stated in Anderson v. Cyr, a claim arising out of a motor vehicle accident:

“…there is a longstanding, traditional and substantive right of a party to a civil action in this province to a jury trial.”

Too complicated for a jury?

However, in the Anderson case, the court decided to strike out a request by the defendant to have the claim hear by judge and jury. Justice Wright decided that the combination of the large number of expert witnesses, the scientific and technical evidence to be submitted, the complicated damages issues and the length of the trial established “cogent” reasons to hold the trial in front of a judge alone.

That is not to say that juries are not capable of making a reasonable and fair decision in long trials with many experts that involve complicated medical and legal issues.

The Ontario Court of Appeal recently faced the question of whether or not they should overturn a jury’s decision in a complicated medical malpractice case: Goodwin v Olupona.


In the summer of 2002, Debra Goodwin gave birth to a twin boy and girl. Unlike his sister, Adam, the baby boy, was injured prior to birth and was subsequently diagnosed with spastic quadriplegia. Mr. and Mrs. Goodwin sued the health professionals and the hospital involved in Adam’s delivery.

Following a 32-day trial, and 8 days of deliberations, the jury found Nurse Burhanpurkar 75%liable and the hospital 25% liable for the injuries. The nurse and hospital appealed the jury’s decision.

The appellants argued the jury’s verdict was unreasonable in that it was not supported by the evidence and that the charge to the jury contained errors.

Court of Appeal

The Court of Appeal began their analysis by recognizing that a jury’s verdict will only be set aside if it is “so plainly unreasonable and unjust as to satisfy the court that no jury reviewing the evidence as a whole and acting judicially could have reached it.”

And that, “where there is some evidence to support the verdict, a jury will be accorded a high degree of deference.”

Expert required to prove standard of care?

The hospital argued that since there was no expert evidence with respect to the hospital’s standard of care, the jury had no basis to conclude the hospital was negligent. However, the Supreme Court of Canada had previously decided that it was open for a jury to find there was a breach of the standard of care without expert evidence (ter Neuzen v. Korn).

The Court of Appeal noted that whether expert evidence would be required turned on whether the nature of the issue could be decided on the basis of knowledge possessed by the jury, or on the other hand, if it required expert evidence because it went beyond the knowledge of the average juror.

Common sense

The Court of Appeal found that the juries finding that a hospital must provide staff and facilities capable of meeting the needs of patients is within the abilities of an average juror.

Seems like common sense right? If you are running a hospital you should ensure the hospital is properly staffed to meet the needs of the patients. Anyone need an expert to tell them that?

The Court of Appeal also rejected the Nurse’s argument that the jury had inadequate evidence to establish causation between her actions and the harm. The Court found that there was such evidence:

[75] In my view, there was evidence capable of supporting the jury’s findings of negligence and causation – that on a balance of probabilities but for Nurse Burhanpurkar’s failure to properly monitor the FHRs, for which the nurse and hospital bear a degree of responsibility, it was likely that Adam’s injury could have been avoided.

With respect to the charge to the jury the Court noted that an appellate court should not hold a trial judge’s charge to a jury to a standard of perfection. Rather the focus should be on whether or not the jury would have properly understood the law. The Appeal Court held that the jury was properly charged with respect to the “but for” test. They additionally found that none of the facts omitted by the trial judge were so important that their omission resulted in a substantial wrong. Finally, the Court concluded that the jury would have understood the law.
The Court of Appeal concluded by noting that the verdict of the jury was entitled to deference.

The appeal was dismissed and the respondents were awarded $40,000.00 in costs.

Common sense

This case is a perfect example of a jury exercising common sense in reaching it’s decision and the Court of Appeal’s ruling in this case simply reflects the fact that just because there may be complicated questions involved in a trial, not all of the answers are complicated.

Sometimes the answers are just common sense.

Here in Nova Scotia, parties to a lawsuit have a longstanding right to a jury trial and deference should paid to the ability of the average juror to hear the evidence and reach a decision that is based both on the evidence and on common sense.

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