On July 13, 2020, the St. Catharines Standard published Bill Sawchuk’s coverage of the Court of Appeal for Ontario’s decision dismissing the defendant’s appeal in Woods v Jackiewicz. The article ran under the headline “Appeals court upholds $11.1 million verdict against Niagara doctor for not maintaining proper standard of care.” Paul was interviewed for the piece in his capacity as trial and appellate counsel for the plaintiffs.
This is the second of two St. Catharines Standard articles covering the case. The first, on April 15, 2019, reported the original jury verdict at trial and is the subject of a separate post on this site. The two articles together capture the public arc of the litigation from the trial verdict through the appellate affirmance.
The Court of Appeal decision
The Court of Appeal decision is reported as Woods v Jackiewicz Estate, 2020 ONCA 458, a unanimous judgment of the panel. The defendant had appealed the trial verdict on several grounds. The most pointed of those grounds was that the plaintiffs’ causation case suffered from a fatal evidentiary gap: no witness from McMaster Hospital had been called to confirm that the amnioreduction procedure central to the plaintiffs’ theory was being performed at McMaster in July 1991.
The Court of Appeal disagreed. The panel held that the jury’s verdict was reasonable on the expert evidence at trial. Two of the plaintiffs’ obstetric experts, Dr. Barrett and Dr. Farine, had testified that amnioreduction was a straightforward procedure in 1991 and well within the technical capability of any maternal-fetal medicine specialist of the period. Dr. Barrett’s evidence in particular was that the McMaster team performed amniocentesis-based procedures regularly at the relevant time. The defence had called contrary expert evidence on the same question. The Court held that this was a matter for the jury to weigh and that the jury was entitled to prefer the plaintiffs’ experts.
The appellate disposition therefore left the trial judgment intact. The jury’s standard of care findings (the three failures by the defendant obstetrician) and its causation finding (the breaches were a cause of Kelsey’s brain damage) were both undisturbed.
What the article captured
The substantive content of the St. Catharines Standard article was an interview with Paul. Paul’s quoted comment, addressed to the family’s reaction, was that the family was overjoyed with the court’s decision to dismiss the physician’s appeal. The framing was deliberately oriented toward the family rather than toward Paul or the legal technicalities. After nearly a decade of pre-trial litigation, a three-week jury trial, and an appellate proceeding, the practical significance of the decision was that the family’s award of damages was now beyond further appeal as of right and could be paid.
The article also restated the underlying facts for readers who had not followed the trial: the 1991 twin pregnancy, the missed warning signs, the emergency Cesarean section at 27 weeks, and the cerebral palsy that resulted. The plaintiffs were named as Bernice Booth and Michael Woods, the parents of Kelsey Woods, whose cerebral palsy is the consequence of her premature birth.
A note on the headline. The article referred to a $11.1 million verdict. The figure entered in the judgment at trial was $11.5 million, the sum that the parties had agreed before trial as damages contingent on a liability finding. Paul’s own case commentary uses the $11.5 million figure throughout, and that is the gross damages figure of the trial judgment. The article’s $11.1 million figure may reflect an adjusted or net figure after deductions; the published material does not explain the discrepancy. The substantive figure for project purposes is $11.5 million.
Why the appellate affirmance mattered
For the family, the appellate affirmance meant the litigation was effectively over and the damages could be relied on for Kelsey’s lifetime care. For the broader medical malpractice bar in Ontario, the decision is cited for two propositions worth noting.
The first is the appellate deference owed to a jury verdict in a complex medical malpractice trial where the expert evidence was contested. The defendant had argued that the plaintiffs’ case suffered from an identifiable evidentiary gap, and that the trial judge should have so concluded as a matter of law. The Court of Appeal rejected that framing. Where competing expert evidence is properly admitted and the jury has been properly instructed, the appellate court is not the forum to revisit the jury’s weighing of the evidence. The defence position would have required the appellate court to substitute its own assessment of the experts for the jury’s.
The second is the inferential character of causation analysis in delayed-treatment cases. The plaintiffs’ theory was that a timely referral on July 5, 1991 would have led to specialist evaluation, an earlier diagnosis of twin-to-twin transfusion syndrome, the application of amnioreduction to prolong the pregnancy, and the administration of a full course of antenatal steroids. The link between those interventions and the avoidance of Kelsey’s brain injury is an inference rather than a direct demonstration. The trial judge accepted that inferential structure, and the Court of Appeal affirmed that the jury was entitled to do the same. This is the kind of causation reasoning that the Supreme Court of Canada has endorsed across decisions like Snell v Farrell, [1990] 2 SCR 311 and Clements v Clements, 2012 SCC 32: causation in medical malpractice cases is to be approached in a robust and pragmatic way, with reasonable inferences drawn from the evidence rather than scientific certainty demanded as a precondition of recovery.
Where to read
The St. Catharines Standard article is available at stcatharinesstandard.ca.
The fuller case commentary on Woods v Jackiewicz, including the trial-level rulings on the number of experts, demonstrative aids, and defence expert impartiality, is available at paulcahill.ca.
Context
At the time of the July 2020 St. Catharines Standard article, Paul was a partner at Will Davidson LLP. The firm restructured later, and Paul is now a partner at Davidson Cahill Morrison LLP.
In June 2020, the month before the Court of Appeal released its decision, Paul had spoken in detail about the Woods v Jackiewicz trial in a conversation with Chris Rokosh on the Inside Medical Malpractice podcast. That conversation was recorded with the appeal pending; the July 2020 St. Catharines Standard article followed the appellate dismissal. Together, the two pieces of media coverage capture the case as it was understood by the public at the moment of the trial-to-appeal transition.
