On October 5, 2023, a motions master of the Supreme Court of British Columbia allowed a lengthy and complex medical malpractice claim to proceed to trial by jury. The Defendants’ motion on the eve of trial to strike the jury was dismissed.
This case is important for lawyers and litigants who may want their medical malpractice lawsuit to be decided by a jury rather than a judge alone.
FACTS
This case arises from the traumatic birth of the Plaintiff on November 10, 1997 at St. Paul’s Hospital in Vancouver, British Columbia.
The Plaintiff, Brennan Robert Lol, was born with a brain injury and suffers from cerebral palsy, seizures, delayed growth, and hypoxic ischemic encephalopathy, all of which have severely affected his speech, cognition, gait, and balance.
The Defendants are the hospital and the various physicians and nurses who provided care before, during, and after the birth.
At the time of his birth, the Plaintiff’s mother was 20 years old and suffered from gestational diabetes, which required insulin intervention starting at 37 weeks. At 40 weeks, she attended at St. Paul’s Hospital where she was admitted and, after some time, delivered her son by spontaneous birth, although after being administered oxytocin to augment labour.
An electronic fetal monitor device (“EFM”) was applied to the mother while in hospital. The interpretation of the EFM as well as other significant medical evidence was anticipated to be extensively explained by various experts at trial. In total, there were 31 expert reports with further reply reports being anticipated.
The experts have various conflicting opinions, including as to liability, causation, the interpretation of the fetal heart tracing on the EFM, causation of the brain injuries, and effect of and/or standard required in respect of the various actions taken throughout the treatment.
In terms of damages, the expert opinions differ as to the level of care and cost for that care for the Plaintiff. The determination of this disagreement will involve significant review of documents given that the time period spans some 26 years since the Plaintiff was born. The range of damages is somewhere under $1 million to over $16 million.
The trial was expected to involve as many 35 witnesses, 27 of which are experts.
DECISION
After considering the arguments made by both sides, Master Robertson made the following ruling with respect to the motion to strike the jury:
… having regard to the various factors, including those set out in Sidhu, while the number and volume of the experts being called upon is considerable, with some conflict in their opinions, I do agree with the plaintiff that the experts and counsel will be able to efficiency simplify matters to enable the jury to retain a sufficient understanding throughout the trial and deliberation through the use of the technology that is now available and through the use of simple tools such as medical glossaries and chronologies that will be available to it, having regard to the limited number of parties involved.
I make this finding having regard to the modern view as to the sophistication of juries and the advancements in trial technology, which will enable the evidence to be presented in real time with the aid of computer images tracking the evidence such as the EFM, in a linear or sequential way that will make sense for the jury.
As a result of the above, this medical malpractice trial was allowed to proceed before a jury.
Decision Date: October 5, 2023
Jurisdiction: Supreme Court of British Columbia
Citation: Lal v Anderson, 2023 BCSC 2038 (CanLII)
