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Civil Litigation, Personal Injury

Case clarifies causation conundrum: Shekter

An Ontario Court of Appeal decision will help clarify a long-standing debate in personal injury law, says Toronto litigator Richard Shekter.

“It clarifies to some degree the causation conundrum, which has been vexing lawyers and judges for 50 years,” says Shekter, partner with Shekter Dychtenberg LLP.

“It also provides a considerable degree of clarity to the kinds of questions that juries ought to be asked in the context of a jury trial and I think it will have a salutary effect on how trials are run,” he tells

In the recent case, the court dismissed an appeal of a medical malpractice decision even after finding the trial judge had not given the appropriate questions to the jury.

The court said the jury should have considered whether a delay resulting from the defendants’ breach of the standard of care “caused or contributed” to the plaintiff’s injuries, rather than simply “caused” them.

“I like this decision,” says Shekter, “because it allows me to go to a jury and say, ‘Look, we can establish a failure on each of these people's parts. What we can't do is point to each one individually and say if they hadn't screwed up, this terrible result wouldn't have happened. But we can say that their combined negligence caused this. And it's up to you, ladies and gentlemen the jury, to figure out which defendants caused or contributed to the injury and the damages sustained by the plaintiff.' 

“The fight, in this case, was over that language — 'caused or contributed,'” adds Shekter who comments generally and did not act on the matter.

While the court agreed with the plaintiff’s argument, it did not order a new trial.

“It’s a wonderful win for the plaintiff on a principle of law — the only problem is that his client got shut out because the Court of Appeal said it didn’t matter that the trial judge didn’t articulate it well. The result, the appeal court said, would have been the same,” says Shekter.

The appellant suffered serious injuries arising from complications after routine bowel surgery, according to the decision.

“An anastomotic leak occurred after the surgery, spilling bowel contents into [his] abdominal cavity. (It is not argued that the leak was the result of negligence.),” wrote Justice Peter Lauwers for the appeal court.

“An anastomotic leak must be treated quickly to prevent infection, sepsis and septic shock, but the discovery of the leak was delayed. By the time treatment started, [the plaintiff] was in septic shock. He was then in a coma for weeks and ultimately required amputation of both legs below his knees and all of his fingertips.”

While several health-care professionals were found to have failed to maintain a reasonable standard of care, the breaches did not lead directly to flesh-eating disease, says Shekter.

“Clients often have a hard time with this,” he says. “Just because you’ve got a bad doctor doesn’t mean you’ve got a cause of action.

“The fact is that people go to doctors because they’re sick. The doctor didn’t cause the sickness. The only way you’re going to have a successful action is if you’re worse than you would have been had the doctor not been negligent. Many of the cases I see and evaluate involve bad outcomes where you can’t demonstrate negligence.”  

In the Court of Appeal case, Shekter says the jury determined that “it actually didn’t matter that these particular health-care providers made mistakes. It had no impact on the outcome because the jury found that the necrotizing fasciitis was going to happen in any event.”

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