In the recent birth trauma case of Cheung v. Samra,[1] the Ontario Court of Appeal set aside an order for a new trial by a lower court Judge and awarded the plaintiffs $14.9 million in damages. In doing so, the Court reaffirmed the long-standing principle of respecting jurors’ verdicts and acknowledged that they are laypeople without legal training. The decision serves as an important reminder that jurors are not expected to provide detailed explanations for their decision, particularly when there may be different routes of reasoning that could lead to the verdict.
In the case at hand, Ms. Rhonda Cheung was diagnosed with intrauterine growth restriction during her pregnancy. In April 2006, Ms. Cheung presented to the hospital but was discharged despite concerning test results. She returned the next day with vaginal bleeding and underwent an emergency c-section. At birth, the baby was pale, limp and blue, and for “28 minutes she had almost no heartbeat; her first breath was at 30 minutes of age.”[2] She required extensive resuscitation efforts. Eventually, in May 2006, she was discharged from the hospital with a good prognosis. However, in July 2006, the baby suffered a seizure and was diagnosed with hypotonic cerebral palsy and developmental delay, rendering her permanently disabled - unable to walk, talk or eat, and needs assistance with all of her activities.
At trial, the Judge instructed the jury to determine whether the defendant physician had breached the standard of care and, if so, whether the breach caused the infant's brain damage. The jury was asked to provide their reasons. Ultimately, the jury found that the defendant had breached the standard of care by failing to deliver the baby sooner. In answering the causation question, the jury found that the breach in the standard care caused the infant’s brain damage.
However, according to the trial Judge, the jury did not refer to the medical evidence in support of their finding and “failed to explain the physiological mechanism of the injury.” The jury did not explain how the negligence led to the damage. As such, the trial Judge refused to grant judgment to the Plaintiffs and ordered a new trial.
The Plaintiffs appealed the decision. The majority of the Divisional Court upheld the decision to order a new trial. However, the dissenting Judge noted that “the answers to the question were conclusory but were not inconsistent with the verdict.”[3] He concluded that the defendants were not entitled to reasons for the decision from the jury and had suffered no injustice in not receiving them. The conclusory nature of the answers did not mean that they were non-responsive or wrong or that they applied a wrong principle.
The Court of Appeal for Ontario allowed the appeal, set aside the trial Judge’s order requiring a new trial, and granted judgment to the Plaintiffs.
The appellate Court found that the trial Judge was wrong to refuse to give effect to the jury verdict and emphasized that “jurors are lay persons who cannot be expected to craft reasons with the detail expected of the judiciary”.[4] The trial Judge had not asked the jury to identify the “mechanism of injury” or sequence of events that led to the brain damage. Rather, the jury was instructed to explain how the breach led to the outcome. The jury was advised that they could draw an inference of causation “through the application of reason and common sense”.[5] The jurors understood that their answers should be brief and provided answers that reflected their findings of negligence.
The Court of Appeal held:
Where there are, as here, multiple reasoning paths that could lead to a finding of causation, asking for particulars may undermine the integrity of the jury’s verdict more by infelicities of expression than any real concern for the merits of the jury’s decision or reasoning and may stretch the limits of what a jury can reasonably be expected to give by way of reasons.[6]
This is an important decision that clarifies the expectations imposed on jurors in answering questions in medical malpractice cases. There is the presumption that juries understand and apply the instructions provided by trial judges, and their answers are the result of a proper consideration of the evidence. Answers by a jury should be given the fullest possible effect.
[1] Cheung v. Samra, 2022 ONCA 195
[2] Ibid, Para 4.
[3] Ibid, Para 34.
[4] Ibid, Para 67.
[5] Ibid, Para 67.
[6] Ibid, Para 71.
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