J. IN THE SUPREME COURT OF NOVA SCOTIA Citation: McLellan v. Shea Malik, 2004 NSSC 255 Date: 20041018 Docket: SN 111374 Registry: Sydney Between: Kenneth A. McLellan and Sadie McLellan and Marian McLellan v. Tina Louise Shea and Dr. H. G. Malik Respondent Judge: The Honourable Justice F.B. William Kelly Heard: October 13, 2004, in Sydney, Nova Scotia Written Decision: December 6, 2004 Counsel: Harvey M. MacPhee, for the plaintiffs Brian W. Downie, for Dr. H.G. Malik Robert M. Purdy, Q.C. for Tina L. Shea By the Court (Orally): [1] The applicant, Mr. Kenneth McLellan, was injured in single motor vehicle accident shortly after midnight on November 26, 1998, while riding in vehicle operated by one defendant, Ms. Tina Louise Shea. The accident is substantially based on injuries he received in the accident and, more specifically, on the treatment provided to him by the other respondent, Doctor H.G. Malik, at the Cape Breton Regional Hospital in Sydney, Nova Scotia. [2] Doctor Malik now applies, pursuant to s. 34 (a)(ii) of the Judicature Act R.S.N.S. 1989, c. 240, to set aside the Jury Notice filed by the applicants. The application was heard at Sydney on October 13, 2004. The other Applicants in the action are Mr. McLellan’s wife, Sadie McLellan, and his mother, Marion McLellan, who died after the commencement of the action. Counsel for the Applicants advises that he had not been made aware of the death of Marion McLellan until the hearing of this application. He indicated he needs to further consider the effect of her death on the action before taking any steps in response to this information. do not consider this uncertainty will affect the outcome of this application such that should not proceed to decision on this time. [3] The claim against the other defendant, Ms. Shea, was dismissed by Court Order dated March 21, 2001. However, she is still party by virtue of her cross-claim against Doctor Malik and his cross-claim against her. Her counsel has advised the Court in writing he would not appear at this hearing to make submissions but that his client desires the matter to be heard by jury. [4] In Marshall v. Curry (No. 2), 1933 CanLII 346 (NS CA), [1933] D.L.R. 198 (N.S.S.C.), Chisholm C.J. concluded that “[i]f the trial requires scientific investigation, think it must be conceded that the investigation cannot conveniently be made with jury” (p. 200). This decision was subsequently affirmed (see pp. 200-201). Since that time the education and experience of the average juror has improved considerably and it has been acknowledged by our courts that some level of complex and scientific evidence could comfortably be left with the jury. In the modern era, an established authority in this province with respect to striking jury has been the decision of Hallet, J., as he then was, in Leadbetter v. Brand (1980), 37 N.S.R. (2d) 660 (T.D.), where he stated that: “the degree of complexity is the key issue in an application to strike on that ground” (para. 8; emphasis in original). He concluded that the judge hearing the matter must review the relevant facts to assess whether or not the party who served the notice should be deprived of his or her prima facie right to jury trial (at para. 8). [5] Further, in MacIntyre Nova Scotia Power Corp.(1995), 1995 CanLII 4399 (NS SC), 145 N.S.R. (2d) 209 (S.C.) Tidman J. expanded this obligation at paragraph 14: The “degree of complexity” ... relates not only to the expert evidence per se, but also encompasses the extent and type of other evidence to be offered and the complexity in relating and applying all of the evidence to the issues before the court. [6] It is not disputed that the right of party to civil jury pursuant to the Judicature Act is right of substance, not to be easily set aside by the Court. This principle is well expressed in Neelands and Neelands v. Haig (1957), 1957 CanLII 357 (ON CA), D.L.R. (2d) 165 (Ont. C.A.), at p. 167: The right of party to trial with jury is substantive one. The defendant in this case gave notice of trial by jury, and he is not lightly to be deprived of his right to have the trial proceed in that way. trial Judge has wide, and indeed one might say an absolute, discretion as to the mode of trial, but his power to decide whether case should be tried with jury or without jury is one that cannot be exercised arbitrarily or capriciously. It must be exercised in judicial manner and there must be sufficient reason to deprive party of the substantive right to trial in the manner chosen by him.... In Leadbetter, supra, Hallett J. cited the Alberta decision in Wenger v. Marien (1977), 1977 CanLII 584 (AB QB), 78 D.L.R. (3d) 201 (Alta. S.C.T.D.), where Milvain C.J.T.D. discussed the problems that can arise in medical malpractice cases. Hallett J. said, at paragraph 7: In Alberta party has right to jury trial as in Nova Scotia.... [Milvain C.J.T.D.] considered number of cases dealing with the question of scientific investigation. He came to certain “definite conclusions” which he stated as follows [at p. 205]: (1) Section 32(2) [of the Alberta Jury Act] confers discretionary power that must be exercised judicially and which should not be cabined and confined within rigid rules. (2) The situations envisaged in the subsection require wide rather than restricted interpretation. (3) jury is suitable tool for determining common sense matters but not those of more complex nature. (4) Cases involving negligence of professional people bring into play determination beyond that of the reasonably prudent man in his actions, to that of the properly trained and careful professional. (5) In general, consideration of evidence where professional negligence is in issue falls into two important aspects. One aspect is as to what all of the relevant facts are and in the second place as to what are the requirements which must be met by the professional and what departure amounts to negligence. (6) That it is certain the search for evidence in any action involving the professional conduct of doctor does involve complicated and difficult scientific investigation, both from the point of view of determining and understanding the relevant facts as to what happened and from the point of view of determining whether there has been departure from professional skill, knowledge and care. [7] would also refer to Vaninetti Victoria General Hospital and Huestis (1994), 1994 CanLII 4260 (NS SC), 135 N.S.R. (2d) 385 (S.C.), where Gruchy J. said, at para. ... am sure that (to use the words of MacDonald J. in Young et al. v. St. Rita Hospital and Critchley (1985), 68 N.S.R. (2d) 293 (T.D.), ... ...a jury's discernment of the issues will improve when the jargon of the medical experts is reduced to terminology more easily understood". Grant, J. made much the same point in Heartz v. Halifax Infirmary and Attia (1990), 1990 CanLII 4149 (NS SC), 99 N.S.R. (2d) 317 ... when he said that, "Much of the terminology used is of Latin or Greek derivation; however, the terms can be readily translated into lay term." tried the latter case and my observation was that the jury appeared to experience no difficulty. had similar experience with the case of Upham v. You (1990), 1990 CanLII 4147 (NS SC), 101 N.S.R. (2d) 376.... [8] It remains fore me to review the submissions of the parties and the materials presented at the hearing, most significantly the affidavits of counsel with attached medical and actuarial evidence, to determine if this material is of such complexity and of such technical nature that it could not be fully assessed by properly informed jury. [9] In the particular context of this application, follow number of authorities in citing with approval the words of Rogers J. in Myra v. Langille (1987), 80 N.S.R. (2d) 135 at paragraphs 13 to 17: 13. Not all malpractice suits, perhaps not even the majority, involve that kind of complexity, although with technical expert testimony, that jury cannot come to grips with the evidence with which they have been presented, particularly with the help of counsel and the court directing their attention to the relevant evidence and law, and particularly if they have the necessary time to deliberate. 14. In my view, reasonably educated and informed jury is just as capable, perhaps even more so, because there are seven of them, of assessing expert medical testimony, as single judge. This is so, particularly if that evidence is presented to it, as it should be, in way that reasonably educated and informed group of lay people can understand it. No more is done when single judge hears the case. The judge is not an expert in medicine when he hears medical malpractice suit and must assess what are often conflicting medical opinions without medical expert's background. He is faced with the same difficulties jury is faced with when medical evidence is introduced. He and they must assess the evidence, the weight of it, the conflicts in it, and make findings with respect to it. 15. Complicated medical evidence is often presented in criminal jury trials, yet the trials go forward and the juries deal with the issues raised by that evidence. 16. The knowledge of no profession which deals with the public should be clothed in so much mysterious complexity that it cannot be explained in understandable terms to reasonably intelligent jury of fellow citizens. 17. In applications to strike out jury notice otherwise properly made judge must weigh the complexity of the evidence that will be adduced at trial against the longstanding, traditional and substantive right of applicant in Nova Scotia to jury trial. There must be cogent reasons to remove case from jury. [Emphasis in original.] [10] would suggest that many medical malpractice suits, almost all of which involve expert medical reports with associated records and comprehensive actuarial reports, should not be beyond the capacity of civil jury. In most cases, as here, they will be handled by competent and experienced counsel who are skilled at presenting such evidence to judge or jury. If, at trial, the judge considers the case is becoming too complex, she or he may sever part of the case or, if necessary, may refuse to leave the case to the jury. [11] Most of the facts relating to causation in this matter appear to be agreed upon or not in significant dispute. The principal dispute relates to the medical condition of Mr. McLellan in the period before his treatment by Dr. Malik, the doctor’s medical involvement with the patient and the patient’s medical condition after Dr. Malik’s treatment. ACCIDENT AND MEDICAL SUMMARY [12] will give an overview of the facts relating to causation. Mr. McLellan was injured in motor vehicle accident at approximately 12:30 a.m. on November 26, 1998 when the vehicle in which he was passenger (driven by Ms. Shea) apparently hit an ice patch and went off the road near Ingonish Beach, Nova Scotia. It was reported that he was able to “walk away with assistance” from the accident scene and he, along with Ms. Shea, was driven by passerby to residence where he spent an uncomfortable night. Around 8:05 the next morning he attended at the Buchanan Memorial Hospital, where it was reported that he walked into the emergency room and had the use of all four extremities. Because he complained of severe cervical pain and other symptoms, cervical x-ray was taken which revealed C-6 subluxation on C-7, and spinous process fracture; in effect, broken neck. The physician placed him in cervical collar and arranged transport to the Cape Breton Healthcare Complex in Sydney later that day. [13] During transport Mr. McLellan was observed to be capable of limited movement of his limbs. In Sydney he came under the care of Dr. Malik, who instituted cervical traction to reduce the spinous dislocation, process that appears to have brought the spine into reasonable alignment. Subsequently, at about 3:00 p.m. on November 26, it was reported that he had some sensations in all of his limbs, but some muscle reflex was diminished, as was pin prick perception in both hands. Dr. Malik observed the injured area at about 8:00 p.m. using an x-ray device which apparently, in this case, produced no record. He determined from this observation that he should operate, and did so the following day, November 27. understand that the purpose of the operation was to stabilize the injured site by the application of internal fixators or clamps. When Mr. McLellan was in the recovery unit after this surgery nurse noted that he was not moving his legs and Doctor Malik was called again. myelogram indicated complete blockage in the upper thoracic area, apparently indicating complete C6 quadriplegia. [14] The next day Mr. McLellan was flown to the Queen Elizabeth II Health Science Centre in Halifax, where an M.R.I. imaging sequence revealed C6/7 acute disk herniation which caused displacement of the spinal cord. Another operation resulted in the removal of the clamps inserted by Dr. Malik. Other procedures were performed, including internal fixation by lens plate and screws. Despite this intervention, Mr. McLellan was discharged many weeks later from the Q. E. II Rehabilitation Centre with the same diagnosis as the admission diagnosis: “traumatic C6-7 facet dislocation (C6 fracture) with C6 quadriplegia.” CONSIDERATION [15] The burden of proof in an application to strike jury is on the applicant to show that there are cogent reasons to do so: Atkinson v. Flynn et al. (1998), 1998 CanLII 6303 (NS CA), 170 N.S.R. (2d) 385 (C.A.) at para. 5. Counsel for the applicant submits that the action will involve complex medical questions and notes that the medical charts exceed 1,500 pages, but it appears that the more relevant hospital records are less than 100 pages. Volume is relevant in assessing complexity but, as Grant J. said in Corkum v. Sawatsky et al. (1992), 1992 CanLII 4653 (NS SC), 113 N.S.R. (2d) 406 (S.C.T.D.) at paragraph 34: “The volume of the material in itself is not the determining factor. Here, however, much of it is contradictory and all of it is complex.” Grant J. concluded that the expert evidence was of such complexity that it should be assessed by judge and not jury. He considered splitting the two elements of the trial between the judge and the jury, noting that there may be circumstances where it would be equitable to split, but said he had “not been asked to do so” (para. 37). [16] In Corkum, supra, damages included ten disputed appraisals of property along with several reviews of these appraisals, one by consulting economist, all lengthy. This expert evidence was in addition to the assessment of damages to an applicant totally disabled from employment as well as the usual medical evidence. In these somewhat unusual circumstances Grant J. struck the jury in part because he was not the trial judge. As in the present proceeding, the trial judge was not yet appointed. Grant J. commented that the trial judge should normally deal with an application to strike (para. 35). [17] Counsel in the present matter agree that the length of the trial will be approximately three weeks. They appear to agree that the essence of the liability issue will be limited in time (since the medical interventions occurred within two to three days), in the most relevant anatomical area (the thoracic vertebrae region of the spinal column) and in the number of medical personnel involved in the relevant interventions. [18] The medical experts will mainly focus on the interventions of physicians and neurosurgeons at the medical centres at Neil’s Harbour, Sydney and Halifax. The principal subject matter will be the interventions of Doctor Malik and of the personnel at the Q.E.II Health Sciences Centre, particularly the neurological surgeon, Doctor R.O. Holness. [19] Counsel for the respondent proposed that the causation issue could be set out as follows (I paraphrase): was Mr. McLellan’s dramatic result caused by or contributed to by Doctor Malik’s operation to insert pressure clamps in the presence of an undetected disk hernia? The respondent’s expert reported in an opinion letter that he believed the spinal cord injury was exacerbated during the surgery, resulting in quadriplegia. The medical report of the defendant’s expert (dated June 14, 2004) indicated that he believed “there were three major contributing factors that combine to precipitate it. 1. congenitally narrow spinal canal. 2. C6/7 herniation and, 3. Insertion of the clamp fixating devices.” presume his reference to the fixating devices are those inserted by Doctor Malik. [20] understand that the position of the respondent/applicant is that Doctor Malik, when presented with the x-ray evidence of C6 dislocation on the C7 and the C6 spinous process fracture, should have used further radiological investigation to determine if there was disk herniation or other impingement into the spinal canal. The submission is that he should have used more appropriate imaging device before operating or, failing access to such device, transport Mr. McLellan to Halifax where such imaging devices were available. [21] The position of the applicant/defendant is that, because Mr. McLellan presented with very unstable dislocation and was at high risk for neurological injury, it would have been dangerous to transport him to Halifax in that condition, and that his medical intervention demonstrated an acceptable standard of care given the imaging resources available to him. [22] In my opinion much of the factual material relating to these issues is not substantially contested, but the opinions of the opposing medical experts will be a major area of contention at trial. [23] It is my opinion these issues are no more complex than most causation issues presented in medical malpractice cases. The three opinion letters provided by the respective medical experts consists of total of nine pages and appear to agree on most of the facts upon which their contradictory opinions rely. am satisfied that jury will be capable of dealing with the medical evidence. [24] The other major matter to be considered in this application is the potential evidence relating to damages. The applicant/defendant submits that this evidence will be so technical and complex that, combined with the evidence relating to causation, it will be of such complexity and volume that it should be taken from the jury. Mr. McLellan has advanced substantial claim, including pain and suffering, past and future cost of care, loss of income and amenities and interest on those claims, as well as costs. [25] substantial part of these claims will be based on the report of Linda Stanley, M.S.W., R.S.W., consultant in rehabilitation and cost of future care. This is 17-page report, including 15 pages of analysis of Mr. McLellan’s pre-injury personal profile (including his medical history), summary of the accident, diagnosis and treatment as well as post-injury complications. It also gives the reporter’s assessment of his present functional abilities and his present daily living activities. Finally the report deals with his current management and care, including medications. Each category concludes with her recommendation of methods to assist him in coping with his limitations in the future. Attached to the report is breakdown and explanation of cost projections and summary of the costs of these recommendations, extending to ten pages. further five-page appendix deals with information about spinal cord injury, which assume is the technical medical information that the reporter used for reference. [26] In my opinion, none of this material appears to be unusually complex. It is the usual type of analysis expected with most claims, particularly those involving significantly disabling injuries. [27] do not doubt counsel for Doctor Malik when he claims that many of the reporter’s assumptions will be challenged. The applicant’s expert reports differ somewhat in their conclusions, but this is not unexpected, as Mr. McLellan’s income was not regular, consistent one. They agree, however, that the source of his income was fishing, employment insurance benefits and the operation of camp ground, as well as whale-watching tour operation. In any event one could also expect that the assumptions of report by Brian A. Burnell of Burnell Actuarial Consulting Inc. would be challenged in the same way. The report provides an opinion of the value of Mr. McLellan’s past and future losses. As have stated above, reports such as these are not unusual nor unexpected in such cases and are helpful to the trier of fact in considering variations from the amounts claimed, after hearing directions by the trial judge as to relevant evidence and law and after receiving argument by counsel. have reviewed these reports in detail. [28] Counsel for Dr. Malik advises that an expert report from an economist will be presented at trial in support of his client’s position. This will add to the complexity but have no basis to determine that this report will add substantially to the complexity of the evidence. [29] After considering the issues involved in this case and the nature of the medical and actuarial evidence that will likely be adduced, am satisfied that jury would be capable of understanding the issues. I conclude that the evidence will not be so complex and scientific that the applicant’s substantive right to a trial by jury should be denied. To do justice to all of the parties, including those other than Mr. McLellan and Dr. Malik, find that there are not sufficiently cogent reasons to set aside the jury in this case. [30] Consequently, the application of the defendant, Dr. Malik, to set aside the jury notice is dismissed with costs of $2,500 and disbursements relating directly to the application.
The defendant doctor in a personal injury case applied to set aside the Jury Notice filed by the plaintiff. Application dismissed; the evidence would not be so complex and scientific that the plaintiff's substantive right to a jury trial should be denied. Although the medical charts exceeded 1500 pages, the more relevant hospital records were less than 100 pages; the essence of the liability issue would be limited in time, in the most relevant anatomical area and in the number of medical personnel involved in the relevant interventions; the factual material did not appear to be in dispute; and the issues were no more complex than most causation issues presented in medical malpractice cases.