On March 1, 2024, the Court of Appeal for Ontario ordered a new trial in a birth injury medical malpractice claim that had been dismissed by a trial judge after she discharged a civil jury from their obligation to decide the case.
FACTS
In 2014, the appellants sued the respondents St. Michael’s Hospital (Toronto) and various other physicians and health care professionals for medical malpractice arising from the traumatic birth of their son.
The appellants alleged that the attending obstetrician should not have ruptured the mother’s amniotic sac because she either knew or should have known that the baby’s head was not sitting low in the pelvis and that, in so doing, she caused a brain injury.
The family chose to have a civil jury trial decide their lawsuit. During the 25-day trial, the jury heard evidence from eight fact witnesses and nine expert witnesses concerning whether the respondents caused the child’s brain injury by breaching the standard of care.
At the close of trial, the respondents claimed that the closing address of the family’s lawyer inappropriately appealed to the jury’s sympathies and referred to the opening address of those respondents’ counsel as evidence instead of anticipated evidence.
The trial judge stated that she could remedy these comments by telling the jury how to deal with their emotions and that the opening address is only anticipated evidence, but then invited the respondents to submit any additional objections in writing.
The respondents submitted 39 objections to the closing, including numerous allegations that the lawyer for the family made assertions without evidentiary foundation or misstated the evidence. The trial judge heard oral submissions concerning these objections, and the family submitted that the comments were not prejudicial. Neither party asked the trial judge to discharge the jury. Nevertheless, the trial judge discharged the jury at the close of submissions and announced that she would decide the case herself.
The following week, the trial judge released five-paragraph reasons for her decision to discharge the jury, which are reported at 2021 ONSC 7381.
The reasons attached the respondents’ list of objections but did not explain which challenged comments were prejudicial and why. Despite this, the trial judge concluded that the family’s lawyer made many improper comments that were cumulatively impossible to correct and required discharging the jury because any corrective instruction would have been “unwieldy and ineffective.”
The trial judge then later dismissed the medical malpractice lawsuit in its entirety. In her reasons for judgment, she found that the respondents neither caused the child’s brain injury nor, aside from the obstetrician’s failure to document her actions, breached the standard of care.
The Court of Appeal found that more than 90% of trial judge’s reasons were copied verbatim or substantially verbatim from the respondents’ submissions.
DECISION
The Court of Appeal determined that the trial judge had failed to provide adequate reasons to explain her decision to take away the Plaintiffs’ right to a jury trial.
While the trial judge concluded that the lawyer for the family made improper comments to the jury that could not be corrected, she neither explained which comments were improper and why, nor why directing the jury to disregard any improper comments would have been insufficient.
The Court of Appeal concluded that the trial judge’s inadequate reasons prevented meaningful appellate review as to whether the trial judge’s decision to discharge the jury was proper.
A trial by jury is a fundamental right. The Court of Appeal was not convinced that the jury would have inevitably rejected the family’s medical malpractice lawsuit as the trial judge did. As such, a new trial was ordered.
Decision Date: March 1, 2024
Jurisdiction: Court of Appeal for Ontario
Citation: Penate v. Martoglio, 2024 ONCA 166 (CanLII)
