The Ontario Court of Appeal recently upheld the jury’s decision in finding an obstetrician liable for the negligent management of a twin pregnancy.
Following a premature birth, one of the twins developed cerebral palsy and quadriplegia. The Plaintiffs sued Dr. Allan Jackiewicz (“Jackiewicz”) in negligence for breaching the standard of care in the management of his patient’s pregnancy. The parties agreed upon damages of $11.5 million prior to the commencement of the trial. The jury found Jackiewicz negligent.
On July 5, 1991, Bernice Booth (“Booth”), who was pregnant with twins, began experiencing severe abdominal pain and excessive weight gain and attended an appointment with Jackiewicz, following which she was sent home.
I thought maybe I was overreacting in asking for help and telling him how much pain I was in and how much weight I put on. He did the eye-roll thing and told me to go home, and that’s what I did. … I wish I had been the age I am now. I question thing. I was 21 years old, vulnerable and naïve.
On July 7, 1991, Booth’s symptoms worsened and she attended Niagara Hospital and was transferred by ambulance to McMaster Hospital. At this time, her cervix was two or three centimetres dilated. At 27 weeks pregnant, Booth delivered her babies by emergency C-section. One of the twins, Kelsey Woods (“Woods”), sustained brain damage.
Following a three-week trial in April of 2019, the jury concluded that Jackiewicz was negligent for failing to arrange for Booth to immediately be seen by a perinatologist, a fetal medicine specialist, following her appointment on July 5, 1991. If she had been seen by a specialist with expertise in high-risk pregnancies, the Twin-to-Twin Transfusion Syndrome (“TTTS”) endangering Booth’s babies would have been detected and treated, avoiding the premature delivery and brain damage suffered by Woods.
Twin-to-Twin Transfusion Syndrome is a rare pregnancy condition that occurs where twins share one placenta and a network of blood vessels that supply oxygen and nutrients vital for development in the womb. Occasionally the vessel connections within the placenta are not evenly distributed and one twin gives away more fluid than it receives and the other receives too much fluid resulting in complications. This condition can be fatal if left untreated.
In 1991, there was only one treatment available for TTTS called amnioreduction, wherein a needle is injected into the amniotic cavity to eliminate some of the excess fluid.
The Plaintiffs called several expert witnesses at trial, including Dr. Barrett, an expert in the management of twin pregnancies. Dr. Barrett testified that amnioreduction was not a complicated procedure and was standard treatment at the time. Dr. Farine, another expert called by the Plaintiffs, also testified that amnioreduction was a procedure often performed for TTTS.
At trial, the jury concluded that Jackiewicz breached the standard of care and that his breach of the standard of care caused Woods to suffer brain damage due to her premature birth.
On appeal, Jackiewicz argued that the trial judge should have instructed the jury on the possibility of drawing an adverse inference against the plaintiffs for failing to call a witness to give evidence as to whether amnioreduction was available at McMaster Hospital in 1991. In addition, Jackiewicz argued that the judge’s charge to the jury was inadequate, unbalanced, contained errors and should have included an explanation that a mere loss of chance to avoid an injury does not establish causation.
The Court of Appeal noted that the test for appellate interference with a jury verdict is high. As the court stated in the case of Parent v. Janandee Management Inc.:
A high degree of deference is given by courts to jury verdicts. A civil jury’s verdict should be set aside only where it is so plainly unreasonable and unjust that no jury reviewing the evidence as a whole and acting judicially could have arrived at the verdict.
The Ontario Court of Appeal dismissed Jackiewicz’ appeal and concluded that he received a fair trial and there were no evidentiary breaches that would negate the finding of medical malpractice by the jury.
The test to determine whether a jury charge is adequate depends on each particular case and is one of fairness. The question is whether the “jury would have understood the issues of fact, the relevant legal principles, how the facts related to the law, and the positions of the parties”. In this context, the appeal court concluded that the jury charge was adequate as the trial judge did not mischaracterize the evidence or favour one party’s evidence above the other.
Jackiewicz’ appeal was dismissed and the jury’s decision was upheld.
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