On April 15, 2019, the St. Catharines Standard reported the jury verdict in a Niagara Region medical malpractice trial under the headline “Jury awards Niagara family $11.5 million in lawsuit against obstetrician.” The case was Woods v Jackiewicz, an obstetric negligence claim arising from a high-risk twin pregnancy in 1991 that produced one severely brain-injured child. Paul was trial counsel for the plaintiffs.
The article ran shortly after the jury returned its verdict at the end of a three-week jury trial. It described the family’s reaction to the verdict, named the plaintiffs and the defendant, and reported the dollar figure of the judgment. Paul was identified as counsel but was not quoted as a media source in the piece; the substantive reflections came from Ms. Booth, the mother of the injured child, on what it had taken to bring the case to trial.
The case in brief
The full case commentary on Woods v Jackiewicz is set out separately on paulcahill.ca. The short version is this. Kelsey Woods was born severely affected by cerebral palsy after a twin-to-twin transfusion syndrome (TTTS) had developed in her mother’s pregnancy and was not recognized or referred in time. The pregnancy ended in an emergency Cesarean section at 27 weeks. Kelsey’s brain injury is the consequence of her prematurity.
The jury, after roughly a day and a half of deliberation, returned a unanimous verdict for the plaintiffs. The jury identified three specific failures by the defendant community obstetrician: the failure to measure and record symphyseal fundal height at all but the last antenatal visit, the failure to perform an ultrasound between 26 and 28 weeks, and the failure on July 5, 1991, in the face of severe abdominal pain, excessive weight gain, and a changed cervix, to refer the mother to a perinatologist or consult with one. On causation, the jury found a causal link between those failures and Kelsey’s brain damage, accepting that the breaches need not have been the sole cause to be a cause. Damages had been agreed before trial at $11.5 million. The judgment was entered in that amount.
What the article captured
The most substantive moment in the St. Catharines Standard piece came from Ms. Booth, who spoke directly to the practical realities of bringing a medical malpractice case in Ontario. She described what it would have cost to litigate the case on an hourly-fee basis and observed that her family could not have afforded that. The contingency-fee arrangement, in which counsel agrees to be paid a portion of the recovery only if the case succeeds, was the mechanism that allowed the case to be brought at all.
That access-to-justice observation is worth pausing on. Medical malpractice cases in Ontario are expensive to investigate, slow to develop, and resolutely defended by the Canadian Medical Protective Association, the national defence association for Canadian physicians. The CMPA’s resources allow defendant doctors to litigate cases to trial without offers to settle, regardless of the underlying medicine. For most families, that economic asymmetry would be insurmountable without a contingency-fee arrangement with experienced plaintiff counsel willing to carry the disbursements and the risk for years before trial.
The family’s observation in the article is not a particular feature of Woods. It applies, in similar terms, to most families bringing medical malpractice cases against CMPA-funded defendants. The St. Catharines Standard piece is one of the relatively rare instances where a successful plaintiff family has used the coverage of the verdict to make the access-to-justice point publicly.
The appeal
The defendant appealed. In July 2020, the Court of Appeal for Ontario unanimously dismissed the appeal and upheld the trial verdict. The Court of Appeal decision is reported as Woods v Jackiewicz Estate, 2020 ONCA 458. The Court rejected the defendant’s principal ground of appeal, which had argued that the absence of a witness from McMaster Hospital was a fatal gap in the plaintiffs’ causation case. The Court held that the jury’s verdict was reasonable on the expert evidence at trial and that the defence’s contrary evidence was for the jury to weigh.
The St. Catharines Standard returned to the case in July 2020 to cover the appeal outcome. That second article is the subject of a separate post on this site.
Context
At the time of the April 2019 verdict and the April 15, 2019 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. The fuller case commentary on Woods v Jackiewicz, including the procedural rulings that shaped the trial and the Court of Appeal’s reasoning on the appeal, is available at paulcahill.ca.
The St. Catharines Standard article is available at stcatharinesstandard.ca.
