Posted: May 15, 2017
By: Steve Rastin

In February 2005, Rossana Surujdeo became very ill and was taken to a Brampton hospital, where she died the following morning. An autopsy revealed that Ms. Surujdeo died of myocarditis, due to an inflammation of the heart muscle which was caused by a viral illness. Her husband subsequently filed a civil suit against the four physicians who treated his wife, as well as the hospital and two other hospital staff members. When the trial commenced, the action proceeded against only two of the physicians – the emergency physician and the respirologist.

The two central issues during the trial were Test Results and Causation. The first issue concerned whether the standard of care required that the physicians actively seek out the results of two key laboratory tests (for lactate and arterial blood gases) that were completed for Mrs. Surujedo the night she was admitted to the hospital. The second issue concerned whether there was anything the physicians reasonably could have done to avoid Mrs. Surujedo’s death, given the aggressive form of her viral myocarditis, the short amount of time they had to diagnose and treat her condition, and the lack of specific required treatment at the hospital.

At the conclusion of the trial, the jury found the defendants liable for the plaintiff’s death in the amount of $600,000 in damages, and the trial judge awarded $450,000 in costs. In Surujdeo v. Melady, the defendants filed an appeal to set aside the judgement, in which they put forward five main allegations:

1.   Regarding the Test Results issue, the appellants (the defendants) argued that the trial judge made the following errors: (a) he allowed the plaintiff/respondent to conduct written discovery of the appellants at the start of the trial; (b) he limited the appellants’ ability to present evidence from their experts on the discovery answers; (c) he limited the appellants’ ability to present evidence about a hospital policy on the Communication of Critical Values; and (d) he did not properly charge the jury on the issue.

2.  The legal instruction given by the trial judge to the jury on the Causation issue was flawed and unbalanced.

3.  The trial judge incorrectly stated the legal test for Causation in the verdict questions he provided to the jury.

4.  The trial judge gave an incorrect response to a question posed by the jury regarding how many jurors are required to agree with each answer to the verdict sheet questions.

5.  The trial judge refused the appellants’ request to poll the jury.

The appellants’ first argument stemmed from an issue that arose on the first day of the trial when the appellants wanted to testify about what they knew or didn’t know about the ordered Test Results. Respondent’s counsel objected, contending that the appellants' pleading had not addressed the delivery of the test results and they (the plaintiff/respondent) had no opportunity to fully examine the issue. The trial judge ordered the appellants to submit to further discovery on this issue, in the interest of fairness to both parties. The judge also ordered the respondent to provide the appellants’ counsel with a list of discovery questions, to which the appellants were required to provide answers. The appellants argued that the trial judge erred in making this decision. Although the appellants withdrew their argument before the date of the appeal hearing, Justice Brown felt compelled to comment that a trial judge has the power to allow further discovery and he believed the order did not cause any prejudice to either appellant; therefore, the trial judge was not in error.

In a second argument on Test Results, the appellants asserted that the trial judge improperly prevented them from obtaining or citing relevant evidence, in three ways. They were precluded from presenting evidence of their personal knowledge of relevant events. Their experts were not allowed to provide relevant supplementary opinion evidence. Finally, they argued that they were unfairly limited in the scope of their cross-examination of one of the experts called by the respondent.  Justice Brown disagreed with the appellants’ assertion that they were unfairly restricted in giving evidence of their personal knowledge of test results and on how they relied on Hospital and nursing staff to inform them on these results. Justice Brown found that this argument was not supported by the court transcripts, where it was revealed that the trial judge did in fact allow both appellants to give evidence in the four areas sought by their counsel.  

The appellants argued that the trial judge erred when he prevented their experts from providing relevant supplementary opinion evidence on the question of whether the physicians were responsible for obtaining the lactate and ABG test results, as part of their ongoing assessment of the plaintiff. The appellants' experts did not comment on this question in their pre-trial reports, but both experts served short supplementary reports during the trial which addressed this issue.  Respondent’s counsel objected to the presentation of this new expert opinion evidence during the trial and the trial judge sustained this objection, on the grounds that experts may not proffer new opinions when testifying before a jury.  It was noted that the respondent’s medical experts had raised this issue before the trial, but the appellant’s medical experts failed to respond in their pre-trial documents, and it was now too late to do so. The trial judge also objected when the experts attempted to point a finger at the Hospital nurses, which was not allowed based on a Consent Dismissal Order favouring the Hospital.  Justice Brown found no error in any of these decisions reached by the trial judge. Justice Brown asserted that a trial judge has the discretion to prevent experts from testifying on a matter that was not referred to in their reports and also to grant permission for the filing of supplementary expert reports after the timelines stated in the Rules of Civil Procedure.

The appellants further alleged that the trial judge erred when he prohibited them from cross-examining the plaintiff’s expert on Hospital policy and on the standard practice used by physicians in communicating test results, including whether nurses normally notified a physician of material lab results.  The trial judge limited this one area of questioning because  it could potentially take the evidence into a topic that the judge determined was “not appropriately discovered on” at this point in the action. In his review of the court transcripts, Justice Brown rejected the appellants’ argument and pointed out that the appellants did not pursue objections on this issue following discussion by the opposing counsels and also, both parties appeared to reach an acceptable solution during the trial.  In addition, the appellants agreed to release the Hospital from the action and in so doing, they were precluded from laying blame on the Hospital and nursing staff. Finally, Justice Brown stated, while other trial judges may have allowing limited questioning on Hospital Policy, the trial judge did not commit an error in principle by setting boundaries for cross-examination.

The appellants claimed that the trial judge made three errors in his instructions to the jury on the Test Results issue, which limited their ability to present evidence.  The first is the fact that the trial judge improperly commented on the state of the evidence with regards to this issue.  Secondly, they alleged the judge misstated the legal test for the standard of care and the respondent’s onus pertaining to proof of causation. Finally, they suggested trial judge failed to properly communicate the appellants’ evidence and position on the issue, which resulted in an unbalanced charge.  Justice Brown disagreed with the appellants on each of these assertions.

The appellants also asserted that the trial judge improperly led the jury to a conclusion that the defendants failed to address the Test Results issue, particularly when the defendants did not appropriately reconcile the fact that neither of the physicians obtained, or was aware of, the ABG and lactate test results.  However, on this and other related decisions, Justice Brown found that the trial judge made no error and was not leading the jury but rather, he repeatedly instructed the jury that they, not he, were responsible for deciding the case on the facts.

At one point in the trial, the trial judge clarified the difference between an error in professional judgement and negligence, to the jury.  The appellants claimed that the judge’s choice of wording misstated the onus of proof when he stated, “...if the erroneous diagnosis might have been otherwise…” if the physicians made use of all available information or if they sought additional tests. The appellants argued that he should more properly have said “likely should have changed the diagnosis”.  Justice Brown noted that the appellants’ suggestion of wording may be more appropriate given the circumstances; however, it is the overall effect of the instructions to the jury that is relevant and an appeal court cannot examine, in isolation, every minute detail of instruction (R. v. Araya (2015)).

In his charge to the jury, the trial judge repeatedly emphasized that it wasn’t enough for the jury to believe the respondent had established that the appellants had fallen below the standard of care, but the jury must believe, on a balance of probabilities, that the victim would not have died were it not for the substandard care she received.  Justice Brown concluded again that the trial judge made no error in his instructions to the jury, and the trial judge clearly defined the standard of care to which physicians are held. Further, Justice Brown found that the court transcripts did not support the appellants’ assertion that the trial judge devoted a disproportionate amount of time to the evidence presented by the respondent on the Test Results issue, and failed to articulate the appellant’s position.

Another argument put forward by the appellants was that the trial judge’s instructions to the jury on the issue of causation was lacking in terms of the amount of time he devoted to this important issue and was also incomplete, unbalanced and biased in favour of the respondents.  On this argument, Justice Brown stated that brevity in jury instructions is desirable (R. v. Daley (2007) and further, the relevant test is whether the judge’s charge was fair and adequate in terms of presenting the evidence in a manner that allows a jury to fully appreciate the issues in question, as well as the defence presented (R. v. Rodgerson (2015)).

In the current case, Justice Brown found that the fairness of the trial judge’s instructions on causation must consider the closing submissions given by the appellants’ counsel, where the latter exhaustively discussed the respondent’s theory of five key steps that form a “chain of causation” and the fact that the respondents can only establish a breach in the defendants’ standard of care if they prove each of the five key steps probably occurred.  Justice Brown noted that, in his charge on the issue of standard of care and again in his section on causation, the trial judge drew attention to the 5 part analysis discussed by the appellants. Justice Brown concluded that the trial judge properly and adequately instructed the jury on the legal principles of causation and also drew their attention to the material evidence that pertained to this issue.

On one of the appellant’s criticisms of the trial judge’s instructions and wording to the jury, Justice Brown found that the trial judge, in fact, erred in law; however, Justice Brown concluded that the error did not justify a new trial.  The error was made when the trial judge approved a jury question for the appellants that did not reflect the appropriate ‘but for’ causation test, but instead, asked if the physician’s breach in standard of care was a cause’ of the plaintiff’s death.  However, Justice Brown concluded that the trial judge’s error did not result in a miscarriage of justice or a substantial wrong because he accurately and thoroughly informed the jury on the ‘but for’ causation test on several occasions, including in his first instruction, when he reviewed the jury questions, in response to a jury question, and before the jury retired to deliberate.

When giving instructions to the jury on ‘the requirement to agree’, the appellants submitted that the trial judge erred in his response to one of the questions posed by the jury regarding how to answer the particulars part of the questions. The jury had already been informed that unanimity was not necessary for a verdict and that it is sufficient if only five out of the six members agree, pursuant to the Courts of Justice Act, s.108(6). However, the jury asked for further clarification on whether five out of six of them also had to agree on the reasons for their decision or if they were allowed to come to the decision for different reasons. The trial judge instructed the jury to simply list out their reasons for their decision.

Justice Brown agreed with the trial judge’s instruction to the jury and rejected the appellants' argument for a number of reasons. First, the standard practice in negligence cases in Ontario is to require the jury to answer specific questions and not to deliver a general verdict. Further, the Courts of Justice Act states only that it is sufficient for five jurors to agree on a question and where more than one question is submitted, the same five do not have to agree on all the questions.  Also, each juror has the right to arrive at a conclusion through their own evidentiary route and may rely on different facts than another juror.

The final ground in the appellants’ appeal concerned the fact that the trial judge denied their request to poll the jury after the verdict was announced, on the grounds that polling “flies in the face of” section 108(6) of the Act.  Justice Brown stated that the trial judge was mistaken in believing that section 108(6) prevents polling of a jury.  Although the Courts of Justice Act and the Rules of Civil Procedure do not explicitly authorize judges to poll juries in civil actions, a judge may poll a jury on their verdict or answers when there is a concern whether five jurors agreed on the response to a ‘bottom line’ question. Nevertheless, Justice Brown ruled that the trial judge made the correct decision because the appellants' reasons for requesting a polling of the jury was an impermissible one. That is, the appellants requested the polling to ensure agreement by five of the jurors on each of the elements of the breach in standard of care and causation, which is without legal relevance given that each juror may arrive at an answer based on different facts in evidence.

For all the above grounds, Justice Brown dismissed the appeal.

The legal steps in proving a case of negligence can be complicated and demanding, particularly in medical malpractice actions.  At Rastin & Associates, our legal team has substantial experience helping accident victims and their families file negligence claims and you can be assured that we will apply all of our considerable resources and attention towards successful resolution of your case. If you were injured and are considering claiming compensation against a negligent party, call Rastin & Associates for a frank assessment of your case.

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