A successful plaintiff's appeal in a medical malpractice case

Medical malpractice cases are notoriously difficult for plaintiffs in Ontario.

Today's decision in Randall v. Lakeridge Health Oshawa, 2010 ONCA 537 is a rare example of an appeal by an unsuccessful plaintiff succeeding.

The Court held the appeal must succeed because the trial judge's mode of analysis was flawed in that he decided the issue of causation before adequately considering the standard of care issues raised, with the result that he failed to deal with the appellants' claim properly.  Additionally the trial judge's reasons were insufficient to justify and explain to the appellants why their action was dismissed and do not provide an adequate basis properly to consider the appeal. 

The Court held:

[35]  ... Findings of breaches of the standard of care should be made first, and factual causation analyzed later in light of those findings.  This is most clearly stated in Bafaro v. Dowd (2010), 260 O.A.C. 70 (C.A.), where Laskin J.A. stressed that the question whether the standard of care was breached should be decided before the question of factual causation.  While Bafaro was not available at the time of this decision, the analytic framework has previously been set out as Laskin J.A. notes at paras. 35-36:

[T]he question whether the standard of care was breached should be decided before the question of factual causation.  In other words, the issue of factual causation arises after the trier of fact has found that the defendant breached the standard of care.  That is evident from [Snell v. Farrell, [1990] 2 S.C.R. 311] itself, where Sopinka J.'s entire discussion of causation was predicated on an uncontested finding of negligence against the doctor. 

The distinction between standard of care and causation, and the necessity to determine the former before the latter, is also evident in the recent Supreme Court of Canada judgment on causation, Resurfice Corp. v. Hanke, [2007] 1 S.C.R. 333. 
...

[77]          It was incumbent upon the trial judge to relate the breaches of the standard of care to his conclusion that the respondents' lack of actions did not cause or materially contribute to the injuries.  I would conclude that the trial judge's reasons are inadequate to justify and explain the result, to indicate to the appellants why they lost, to provide a basis upon which this court can properly consider the grounds of appeal, and to satisfy the public that justice has been done. 
...

[78]          The trial judge erred by inverting his analyses of the standard of care and causation.  He failed to make findings regarding the breaches of the standard of care first and then to analyze factual causation later in light of those findings.  Furthermore, his reasons are inadequate to justify and explain his conclusions.  A new trial is necessary.