



COURT OF APPEAL FOR ONTARIO

CITATION: Woods v. Jackiewicz, 2020 ONCA 458

DATE: 20200713

DOCKET: C66929

Juriansz, Pardu and Huscroft
    JJ.A.

BETWEEN

Kelsey
    Woods, a person under disability by her litigation guardian, Michael Woods,
    Karli Woods, Bernice Booth,
and Michael Woods, personally

Plaintiffs (Respondents)

and

Dr. Allan Jackiewicz
and Dr. Ronit Mesterman

Defendants (
Appellant
)

Thomas J. Curry,
Mitchell
C. Brown, Mark Veneziano, Dena
    Varah and Robert Trenker, for the
appellant

Christopher Morrison
and
Paul Cahill, for the respondents

Heard: June 19, 2020 by video conference

On appeal from the judgment of Justice Clayton Conlan of the Superior
    Court of Justice, sitting with a jury, on April 12, 2019.

Pardu
    J.A.:

I.

Overview

[1]

The appellant physician appeals from an award of
    damages against him for negligent management of a twin pregnancy following a
    jury trial. He does not challenge the jury finding that he did not meet the
    standard of care, but he submits that the jury verdict on causation was
    unreasonable. He says there was a critical gap in the evidence on causation. He
    says further, that the trial judge ought to have instructed the jury that it
    could draw an adverse inference against the respondents because they did not
    call a witness to deal with the gap the appellant identifies in the evidence.
    He submits that the charge to the jury was inadequate, unbalanced and contained
    errors. He submits that, although the trial judges instruction on causation
    was legally correct, the trial judge erred in failing to further explain that a
    mere loss of chance to avoid an injury that does not satisfy the but for test
    does not establish causation.

[2]

I do not accept these arguments and would
    dismiss the appeal.

II.

Factual background

[3]

Ms. Booth was pregnant with twins. She saw the
    appellant for an unscheduled appointment on July 5, 1991, as she was
    experiencing severe abdominal pain and excessive weight gain. The appellant
    sent her home to rest. When the symptoms became worse, she went to Niagara
    Hospital on July 7 which arranged for her immediate transfer by ambulance to
    McMaster Hospital. By then, her cervix was two or three centimetres dilated.
    Doctors there delivered the babies by emergency C-section at 27 weeks into the
    pregnancy. As a result of the premature birth, one of the twins, Kelsey Woods,
    sustained brain damage.

[4]

The jury found that the appellant was negligent
    for, among other things, failing to arrange for her to be seen immediately by a
    perinatologist  a fetal medicine specialist  on July 5. The theory of the respondents
    case was that if she had been seen on July 5, 1991 by specialists at a tertiary
    center with expertise in high-risk pregnancies, like McMaster Hospital, then the
    Twin-to-Twin Transfusion Syndrome (TTTS) imperilling the babies would have
    been detected and treated, and the premature delivery and the brain damage to
    Ms. Woods would have been avoided.

[5]

TTTS is a rare complication of twin pregnancies.
    One twin gets too much fluid, while the other gets too little. The twin getting
    excess fluid continues to urinate, creating a large volume of amniotic fluid
    around it. This large volume of fluid compresses the other twin who gets less and
    less fluid. Untreated, this condition is usually fatal for both. The respondents
    experts testified that there was effectively only one treatment in 1991:
    amnioreduction, a procedure where a needle is inserted into the amniotic cavity
    to remove some of the excess fluid. If this was not possible, the only other
    option was an emergency C-section, which at this gestational age could have
    catastrophic consequences.

[6]

The matter went to trial in 2019. It was a
    two-issue case:

1.

Did the appellant breach the standard of care?

2.

If yes, did his breach of the standard of care cause the brain
    damage that Ms. Woods sustained because of her premature birth?

[7]

The jury answered, yes, to both questions. As
    indicated above, the appellant does not challenge the jurys conclusion that he
    breached the standard of care and limits his appeal to issues related to
    causation.

Evidence and arguments relating to the respondents
    theory of causation

[8]

Ms. Booth would have gone to McMaster Hospital,
    at least initially, had she been referred to specialists on July 5. The
    causation issues related to the availability of effective treatment for TTTS at
    McMaster Hospital at that time.

[9]

Dr. Barrett, an expert in management of twin
    pregnancies called by the respondents, testified that removal of excess fluid
    from the amniotic cavity was not a complicated procedure and that 
[a]ny
    maternal-fetal medicine should do it.
He said it was first
    developed in the 1940s and became widespread in the 1980s and 1990s. If for some
    reason McMaster Hospital could not do it in order to treat TTTS, the patient
    could have been sent to Toronto for the procedure.

[10]

Dr. Barrett testified that in 40% of cases, this
    procedure would resolve the TTTS entirely, and allow the pregnancy to continue
    normally to term. In other cases, it would prolong the pregnancy, allow the
    twins more time to develop, and allow effective use of steroids. The use of the
    procedure would have immediate beneficial effect. Dr. Barrett testified that
    amnioreduction was a standard treatment of TTTS in 1991, noting, We were
    doing it all the time and I think the evidence is pretty clear that we knew it
    got better results than doing nothing. Dr. Barrett disagreed when it was
    suggested to him that the appellants expert Dr. Mundle would say that there
    was limited availability of amnioreduction, and that Ms. Booth would not have had
    the treatment if she had been referred to McMaster Hospital on July 5.

[11]

Dr. Barrett testified that TTTS develops rapidly
    and that the mothers presentation on July 5 would have been materially
    different from her condition on July 7.

[12]

Dr. Barrett testified that had amnioreduction
    been performed on July 5, the pregnancy would have been prolonged by about 5
    weeks, and in addition there was a further 40% likelihood that the TTTS would
    have resolved completely. According to other expert evidence, a five-week
    extension of the pregnancy would have avoided the brain damage.

[13]

Dr. Farine, another expert for the respondents, testified
    that in Hamilton they did amnios all the time, though he did not have direct
    knowledge of whether McMaster Hospital did amnioreduction to treat TTTS at the
    time. He testified that amnioreduction was generally used to treat pregnancies
    where the baby had too much fluid on board. When counsel put to him that Dr.
    Mundle would say that Ms. Booth would not have received amnioreduction if
    referred on July 5 or earlier because there was limited availability of
    amnioreduction in 1991, Dr. Farine disagreed. Dr. Farine responded,

[I]f youre
    perinatologist and you have two hands, you can do an amniocentesis. So each one
    of the perinatologists and probably some of the generalist[s] in Mac could have
    done it So in the 1991 there was no reason not to embark on it and its easy
    to do

[14]

The appellants expert, Dr. Mundle, ultimately
    said that his feeling was that McMaster Hospital did not offer amnioreduction
    for TTTS at that time. He explained that when he arrived in Ontario in 1997,
    McMaster Hospital was not doing it. However, by 1997 laser treatment for this
    condition had become available and was a more effective treatment.

[15]

The appellant distinguishes withdrawal of
    amniotic fluid for diagnostic purposes, amniocentesis, and withdrawal of
    amniotic fluid in single-baby pregnancies where there is too much fluid, from
    amnioreduction to treat TTTS. He submits that neither Dr. Farine nor Dr.
    Barrett were able to opine as to whether this treatment for TTTS was available
    at McMaster Hospital on July 5, 1991. Dr. Farine was familiar only with the
    practices at his own hospital. Dr. Barrett came to Canada after 1991, and when
    asked if he knew whether McMaster Hospital was offering the treatment for TTTS,
    he responded, I dont know exactly. I wasnt working there.  I would assume
    it couldve - it wouldve been. Its not a complicated procedure. Any
    maternal-fetal medicine should do it.

[16]

The appellant argues that without evidence from
    someone at McMaster Hospital that amnioreduction was available there for
    treatment of TTTS, the respondents case on causation had to fail. He says this
    absence of evidence amounted to a fatal gap in the respondents case and made
    the jury verdict on causation unreasonable.

[17]

The appellant introduced expert evidence
    supporting his position, but the jury did not accept that evidence. Since the
    appellant challenges the jury verdict on the ground that it was unreasonable,
    the focus on appeal is on whether there was evidence which could support the
    jurys decision.

The jury answers on causation

[18]

The jury answered yes to the question, If
    your answer to question 1 (a) [was there a breach of the standard of care?] is
    YES, have the plaintiffs satisfied you on the balance of probabilities that,
    but for the breach of the standard of care, [Ms. Woods] would not have
    sustained brain damage?

[19]

In response to the further question, how did [the
    appellants] breach of the standard of care cause [Ms. Woodss] brain damage?,
    the jury responded as follows:

We recognize that the breach of the standard
    of care may not be the sole, exclusive, or entire cause of the brain damage.
    However, we do believe there is a causal link between the breach in standard of
    care and the brain damage. The breach is Dr. Jackowitz [sic] failure to refer
    Ms. Booth to a perinatalogist [sic] or consult a perinatalogist [sic] on July
    5th.

In consequence,

- she did not receive specialist perinatal
    care in a timely fashion.

- this would have included an earlier
    diagnosis of TTTS.

- amnioreduction as a treatment for TTTS.

- timely
    administration of a full course of steroids to improve lung development.

III.

Issues

[20]

The appellant raises the following issues:

1.

Was the jurys verdict unreasonable because
    there was no evidentiary basis to support the jurys verdict on causation?

2.

Did the trial judges charge to the jury contain
    legal errors on the issue of causation that resulted in a substantial
    miscarriage of justice?

a.

Did the trial judge err by refusing to instruct
    the jury that they were permitted to draw an adverse inference from the
    respondents failure to call any witness from McMaster Hospital to give
    evidence on the availability of amnioreduction in 1991?

b.

Did the charge give disproportionate weight to
    the respondents experts or mischaracterize the expert evidence?

c.

Did the trial judge err by refusing to instruct
    the jury that a mere loss of chance is not compensable at law?

IV.

Analysis

(1)

Was the jurys verdict unreasonable because
    there was no evidentiary basis to support the jurys verdict on causation?

[21]

The appellant contends that there was an insufficient
    basis to conclude that his failure to refer Ms. Booth to a perinatologist on
    July 5 caused the premature birth and the brain damage. He argues that even if
    he had referred her, there was inadequate evidence that amnioreduction would
    have been performed at McMaster Hospital in a manner that would have avoided
    the injury.

[22]

The test for appellate interference with a jury
    verdict is high. As noted in
Parent v. Janandee Management Inc.
, 2017
    ONCA 922, at para. 26:

A high degree of
    deference is given by courts to jury verdicts. A civil jury's verdict should be
    set aside only where it is so plainly unreasonable and unjust that no jury
    reviewing the evidence as a whole and acting judicially could have arrived at
    the verdict.

[23]

Hourigan J.A. described the high degree of
    deference owed to jury verdicts in
Stilwell v. World Kitchen Inc.
,
    2014 ONCA 770, 327 O.A.C. 146, at para. 36:

The appropriate degree of judicial deference
    to be applied in the consideration of jury answers and verdicts was described
    by Laskin C.J.C. in his dissent in
Wade v. C.N.R.
, 1977 CanLII 194
    (SCC)
,
[1978] 1 S.C.R.
    1064
, at pp. 1069-1070
:

Appeal Courts
    do not fine-comb jury answers but accord them the respect of a common sense
    interpretation even where there may be some ambiguity in the answers. It is
    always timely to be reminded that juries do not write reasons for judgment, and
    their answers must be taken against the background of the evidence from which
    they are entitled to select, without manifesting their selection, what is
    credible, what is significant, what is persuasive to them. It is very often
    easy for an appellate Court, in the leisurely scrutiny of the transcript, to
    find significance in pieces of evidence to contradict jury findings, and in so
    doing to usurp the jurys function. What an appellate Court may believe from a
    reading of the transcript may be the very things which a jury disbelieved or believed
    in part only. It is one thing to interfere with a jurys verdict where there is
    simply no evidence to support its findings or to support a critical one; it is
    a different thing, and not to be encouraged, to interfere with its findings
    where there is evidence, however slight, on which they may be based, but where
    because of offsetting evidence a question of credit and weight arises. These
    are matters for the jury alone.

[24]

Here it was open to the jury to infer that had Ms.
    Booth been referred to McMaster Hospital on July 5, 1991, amnioreduction would
    have been performed to effectively treat the TTTS. McMaster Hospital was a
    tertiary centre specializing in high-risk or problem pregnancies. The jury
    could infer that the easy-to-perform treatment would have been administered,
    given that there was no other treatment available other than a potentially
    catastrophic early C-section. The respondents experts provided a basis from
    which the jury could infer that the TTTS would have been successfully treated at
    McMaster Hospital in 1991. The jury rejected the appellants experts feeling
    that amnioreduction was not offered at that time at McMaster Hospital. There
    may have been any number of reasons why the jury preferred the evidence of the respondents
    experts. It was open to them to do so and conclude that the treatment would have
    been administered and would have avoided the brain damage on the balance of
    probabilities.

[25]

Trial counsel for the appellant acknowledged
    this in his submissions to the jury when discussing Dr. Barretts evidence with
    them:

He maintained the
    position that amnioreduction would have been done and would have extended the
    pregnancy on five - for five weeks. And thats what you must accept if you, if
    you are going to accept that causation has been proven, but Im going to urge
    you not to accept that. Im going to urge you not to accept the opinion of Dr.
    Barrett for six reasons.

(2)

Did the trial judges charge to the jury contain
    legal errors on the issue of causation that resulted in a substantial
    miscarriage of justice?

[26]

The appellant argues that the jury charge
    contained multiple significant misdirections and non-directions that together
    amounted to a substantial miscarriage of justice.

(a)

Did the trial judge err by refusing to instruct the
    jury that they were permitted to draw an adverse inference from the
    respondents failure to call any witness from McMaster Hospital to give
    evidence on the availability of amnioreduction in 1991?

[27]

The trial judge did not err in deciding not to
    instruct the jury that they could draw an adverse inference from the failure of
    the respondents to call a witness from McMaster Hospital to testify about whether
    amnioreduction was used to treat TTTS at the time. Either party could have
    called that evidence if they thought it was important: see
Lambert v. Quinn
,
1994 CanLii 978 (ONCA), 110 D.L.R.
    (4th) 284, at pp. 287-88.

(b)

Did the charge give disproportionate weight to the
    respondents experts or mischaracterize the expert evidence?

[28]

The appellant submits that significantly more
    space in the jury charge was devoted to the respondents evidence, even though
    the cases at trial for the appellant and the respondents were nearly equal in
    length. In particular, the summary did not include the cross-examination of Dr.
    Barrett.

[29]

The appellant further submits that the jury
    charge misrepresented the evidence by describing Dr. Farine as testifying that [a]mnioreduction
    was available in Hamilton in 1991, when Dr. Farine only testified that McMaster
    Hospital would have been technically capable of performing amnioreduction, not
    that it was actually being performed there at that time to treat TTTS. Similarly,
    the appellant submits that the trial judge misdescribed Dr. Barretts evidence
    as being that [a]mnioreduction was available at the time, when his actual
    opinion was that McMaster Hospital could have and should have performed
    amnioreduction in 1991, not that it would do so. The appellant asserts these
    statements were misleading and do not reflect the fact that neither expert was
    present at McMaster Hospital and they could not directly attest to whether
    amnioreduction was being performed at McMaster Hospital in 1991 to effectively
    treat TTTS.

[30]

I do not accept these submissions. In my view, the
    jury charge was fair and balanced. There is no sense that the trial judge put
    his thumb on one side or another of the scale. He did not unfairly
    mischaracterize the evidence.

[31]

The trial judge did not review the evidence in
    great detail and he told the jury that his references to the evidence would be
    brief. There were seven days of evidence. Counsel for the appellants closing
    submissions lasted about 3.5 hours. The respondents addressed the jury for
    about 1.5 hours. The jury charge was given the day after submissions. The trial
    judge told the jury, we have heard two very thorough, well-prepared, very
    well-presented addresses on both sides, and he thanked all counsel who had
    provided closing addresses. He told the jury This case has been presented to
    you in a fair and thorough manner.

[32]

While some judges might have reviewed the
    evidence in more detail, I cannot conclude that the trial judge erred in his
    approach to the review of the evidence. He had to decide what was required to
    enable the jury to assess the evidence in light of the course the trial had
    taken. I am not persuaded that the jury was not equipped to make a decision
    about the conflicting evidence on causation.

[33]

As noted in
Surujdeo v. Melady
, 2017
    ONCA 41, 410 D.L.R. (4th) 538, at para. 82:

The adequacy of a
    jury charge on a particular issue is not assessed by comparing the number of
    words the trial judge devoted to the issue as compared to others.
Indeed,
    brevity in a jury charge is desired
:
R. v. Daley
,
2007 SCC
    53
,
[2007]
    3 S.C.R. 523
, at para.
56. Rather, the
    extent to which a judge must review the evidence depends upon the particular
    case. The test is one of fairness. The charge will be adequate when the judge
    puts the evidence to the jury in a manner that will allow it to fully
    appreciate the issues and the defence presented:
R. v. Rodgerson
,
2015 SCC
    38
,
[2015]
    2 S.C.R. 760
, at para. 30
. [Emphasis
    added.]

[34]

Accordingly, an appeal court must assess the
    adequacy of a charge in the context of the entire trial and ask if the jury
    would have understood the issues of fact, the relevant legal principles, how
    the facts related to the law, and the positions of the parties: see
Caza v.
    Kirkland and District Hospital
,
2003
CanLII
    39169 (ON CA)
,
172 O.A.C. 388
, at para. 34
.

[35]

Following delivery of the jury charge, counsel
    for the appellant asked that excerpts of the cross-examination of Dr. Barrett
    be given to the jury so that they could look at them while deliberating,
    together with copies of documents the appellant had used as demonstrative aids
    during the closing address to lend force and clarity to his arguments. The trial
    judge acceded to this request, over the objections of the respondents, even
    though it gave relative added weight and prominence to the appellants
    arguments with the jury. There is no reason to believe that the jury did not
    have all the information the appellant thought important. The jury deliberated
    for just over one day. They had the written charge with them in the jury room.

[36]

As for mischaracterization of the expert
    evidence, I am satisfied that the statements challenged by the appellant, when
    read in their full context, would not have misled the jury. It would have been
    clear to the jury that Dr. Barrett and Dr. Farine were not at McMaster Hospital
    in 1991, and that their views were not based on direct knowledge. It would have
    been clear that their views arose from the opinion that, in 1991, use of a
    needle to remove amniotic fluid was a relatively simple and well-known
    procedure, and it was the only option for TTTS.

[37]

The trial judges description of Dr. Barretts
    and Dr. Farines evidence was comparable to his summary of Dr. Mundles
    evidence:

Dr. William Mundle, an expert
    witness, testified that amnioreduction was experimental in the early 1990s. His
    feeling is that it was not available at McMaster in 1991.
His opinion
    is that even if [Ms. Booth] had been transferred to McMaster before July 7,
    1991, even as early as June 27th, or on July 5th, the result would likely have
    been the same. No amnioreduction would have been offered. No full dose (48
    hours) of steroids would have been administered.
An emergency c-section
    would have been performed.

[38]

The trial judge did not qualify this summary of
    Dr. Mundles views with a warning that Dr. Mundle lacked direct experience of
    McMaster Hospital in 1991. Dr. Barretts and Dr. Farines views were no more
    overstated than Dr. Mundles. Dr. Barrett and Dr. Farine, like Dr. Mundle, provided
    opinions on the availability of amnioreduction at McMaster Hospital in 1991
    based on their medical knowledge, experience, and training, not direct
    knowledge of the Hospital at the time. This was abundantly clear to the jury,
    who had recently heard during the trial that none of these experts were at
    McMaster Hospital in 1991.

(c)

Did the trial judge err by refusing to instruct the
    jury that a mere loss of chance is not compensable at law?

[39]

The trial judges instruction on causation was
    legally correct:

Causation is
    established where the Plaintiffs prove on a balance of probabilities that the
    Defendant doctor caused the injury. The test you must apply is the but for
    test, which requires the Plaintiffs to show on a balance of probabilities that
    the injury, the brain damage (cerebral palsy), would not have occurred but for
    the breach of the standard of care by [the appellant].

He told the jury what proof on the
    balance of probabilities meant:

When I say that a
    party has the burden of proof of satisfying you of something, this means that
    you must be persuaded of that proposition on a balance of probabilities. That
    means more likely or more probable than not.

[40]

No one had suggested that a mere loss of a
    chance to avoid injury was sufficient to establish causation. The appellant
    does not claim that a lost chance standard was put to the jury, or that the
    correct standard was not conveyed. He points only to the complexity of the case
    and the centrality of causation as reasons why this further direction was
    necessary.

[41]

I see no error in the trial judges decision to
    refrain from embarking on a discussion of loss of chance, which would have
    risked adding unnecessary complexity and confusing the jury.

[42]

Overall, I am not persuaded that there was any
    material misdirection or non-direction by the trial judge that warrants
    appellate intervention.

V.

Disposition

[43]

Accordingly, I would dismiss the appeal.

[44]

Counsel may make brief written submissions as to
    the costs of the appeal, due from the respondents within 15 days following the
    release of these reasons, and from the appellant within 10 days thereafter.

Released: July 13, 2020

RGJ

G.
    Pardu J.A

I
    agree R.G. Juriansz J.A.

I
    agree Grant Huscroft J.A.


