Personal Injury

When to choose a jury in a medical malpractice case: Cahill

By Mia Clarke, AdvocateDaily.com Associate Editor

In complicated medical malpractice cases, the plaintiff’s lawyer often struggles with the decision of whether to take the case to a jury, Toronto personal injury lawyer Paul Cahill writes in The Lawyer’s Daily.

“You know that it is going to be a hard-fought battle with a multitude of experts offering competing opinions on standard of care and causation. So, when does it make sense to ask for a jury versus a judge?” writes Cahill, partner with Will Davidson LLP, in the online legal publication.

He notes that juries weren’t always permitted in medical malpractice cases, as was discussed in this 1983 decision.

“In the decades that followed this decision, however, there has been a clear trend to allow juries in medical malpractice cases. In the very recent birth injury medical malpractice case … Justice Darla Wilson denied the defence motion to strike the jury on the basis of complexity,” writes Cahill.

He quotes from Wilson’s decision: “… the complexity of a case is a proper consideration in determining whether a jury notice should be struck. Complexity relates not only to the facts and the evidence, but also to the legal principles that apply to the case. It is a reversible error for a trial judge to strike a jury notice on the basis that it would be too difficult to explain the law to the jury. Trial judges must know the law and to be able to explain it to a jury.”

In some circumstances, says Cahill, it makes sense to choose a jury rather than judge alone.

“Having recently completed a compromised baby jury trial in Kitchener, Ont., I would make the following observations from this experience that I would argue favour juries in many medical malpractice claims:

  • The public, which would include your jury pool, has a fascination with doctors and medicine. Just think of the multitude of widely popular TV shows that revolve around the personal and professional lives of doctors. This translates into a jury that will likely be highly engaged in the subject matter.
  • Jurors can empathize with the experience of being a patient. They can, sometimes even from personal experience, understand how complaints to a doctor might be dismissed or overlooked.
  • Jurors have the benefit of not becoming bogged down in technical legal considerations. At the end of the case, jurors are really asked to simply apply their common sense to the evidence and collectively come to a fair verdict. When you have a bunch of doctors testifying, seemingly in contraction with each other, it is only through the application of common sense that a fair verdict can be reached.

“Another advantage to jury trials is that you receive a decision much faster than with a judge — within hours or days of closing argument.”

Plus, if you succeed at trial, courts of appeal are loath to overturn a jury’s decision, notes Cahill.

He writes that in this case, the Ontario Court of Appeal stated: “the standard of review of civil jury verdicts is exceptionally high. A civil jury’s verdict should be set aside only where it is so plainly unreasonable and unjust that no jury reviewing the evidence as a whole and acting judicially could have arrived at the verdict.

Cahill also cites p. 34: “A new trial should be ordered only where the jury seems to have confused the issues at trial, it is doubtful whether the jury paid attention to the real point in issue, and the questions answered or unanswered leave the real issue in doubt and ambiguity ...”

Despite the deference given to jury decisions, he says not all medical malpractice cases are ideal for this mode of trial.

“Certainly, juries should be avoided in highly complicated cases that involve intricate theories of liability and a multitude of parties and counsel,” he writes. “In such cases, there is a much higher probability that the jury will simply become overwhelmed and confused. Furthermore, such cases tend to take longer to litigate, which can work a hardship on jurors and in turn, potentially disengage them from the process.”

Cahill says it’s important to weigh each case individually.

“In my view, a jury should be seriously considered where you have a sympathetic plaintiff and a common-sense theory of liability that can be explained to a lay person using simple language,” he says. “In such cases, juries are well positioned to fairly and quickly decide your case, and with clear answers, protect you against an appeal.”

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