Gluckstein Lawyers’ SCC win brings clarity to issues in medical malpractice law

The decision is important for tort law generally but medical malpractice law specifically

Gluckstein Lawyers’ SCC win brings clarity to issues in medical malpractice law

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On January 18, in Armstrong v. Ward, the Supreme Court of Canada allowed Armstrong’s appeal, siding with her counsel Ryan Breedon and Jan Marin.

“Its an important decision for tort law generally but medical malpractice law specifically,” Marin says, adding that as amazing as the win felt the call to her client when all was said and done was even better.

“It’s going to make a difference in her life. As lawyers we look at the precedent set by cases and know the legal import, but we cannot forget about the person sitting behind it — and this is such great news for her.”

The plaintiff and appellant in this case is Karen Armstrong, who was severely injured during a laparoscopic colectomy in 2010 and ultimately had to have a kidney removed months later due to an injury suffered during the surgery. As Armstrong’s counsel, Marin alleged the surgeon, Dr. Colin Ward, brought the surgical instrument too close to Armstrong’s left ureter — the duct that drains urine from the kidney to the bladder — causing damage that led to an eventual stricture of the ureter. Although Ward denied breaching the standard of care, the trial judge found that he had breached the standard and awarded damages to Armstrong.

Ward appealed the trial decision. The majority of the three-judge panel at the Ontario Court of Appeal overturned the trial judgment, finding the trial judge erred in law in identifying and applying the standard of care. Indeed, on the findings of fact he did make, had the trial judge applied the law correctly, he would have found that Dr. Ward is not liable.” The finding of liability was set aside and Armstrongs action against Ward was dismissed. Despite her colleagues’ decision, Justice Katherine van Rensberg took the time to write a fulsome dissenting opinion and Marin is “convinced the dissenting opinion got the attention of the Supreme Court.”

The Supreme Court hears matters of national importance and only about 10% of cases that seek leave to the court receive it. The Supreme Court will not be releasing a full written decision as they have endorsed Justice van Rensburgs dissenting opinion from the Ontario Court of Appeal.

The decision is important. Justice van Rensburg’s decision recognizes that in many medical negligence actions, determining “what happened” or causation is necessary in order to determine whether the standard of care was met. For this reason, it is permissible to consider causation first in the right case. 

With respect to the burden of proof, the decision makes clear that a plaintiff is not required to address potential or alternative theories not raised by the defendant, and importantly, when a defendant argues alternative causation theories, they must be supported by the evidence adduced at trial. According to Marin “had the majority decision been allowed to stand, many meritorious medical negligence claims would have faced insurmountable obstacles.”

In her dissenting opinion, Justice van Rensberg quoted from Rowlands v. Wright where the court of appeal held “there is a difference between using the appropriate technique and executing it properly.” For Marin this is important, particularly as the majority opinion could be read as holding that a physician need only try to meet the standard of care.

The result, according to Marin, is justice done.

“From the moment we read the dissenting reasons of Justice van Rensberg we felt strongly that she got it right. We’re glad the Supreme Court agreed.”

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