MacLean Law’s Surrey Vancouver Medical Malpractice Lawyers took note today of the Supreme Court of Canada’s newest blockbuster 4:3 decision on causation in medical malpractice cases. Surrey and Vancouver medical malpractice injury claims are tenaciously defended by members of the medical profession and the Plaintiff often faces a protracted battle to succeed. Hiring a skilled lawyer familiar with Surrey Vancouver Medical Malpractice cases helps the victim level the playing field against an array of defensive tactics that follow alleged medical malpractice. An important tool in winning these cases is the ability of a trial judge and jury to draw an adverse inference against the defendant doctors, nurses and hospitals. This concept is confusing and the Supreme Court of Canada provided clarity in this week’s blockbuster medical malpractice ruling.
Call us toll free at 1-877-602-9900 to meet with us for free to deal with the often overwhelmingly frightening impact of Surrey or Vancouver medical malpractice on you or a loved one.
Surrey Vancouver Medical Malpractice Lawyers 1-877-602-9900
Medical malpractice victims meet with the compassionate and tireless advocates of our Surrey Vancouver Medical Malpractice Lawyers for free. At that free consultation at any of our 5 BC offices located in Surrey, Vancouver, Richmond, Kelowna or Fort St John, or in Calgary our lawyers will assess whether malpractice has occurred and to then develop a powerful strategy including obtaining the best medical experts to explain to a judge and jury just what went wrong and why there was negligence.
Surrey Vancouver Medical Malpractice Lawyers Explain Difficulties
Our Surrey Vancouver Medical Malpractice Lawyers know any claim will be vigorously defended and one Judge commented on a routine defence approach in the case of Frazer v. Haukioja, 2008 CanLII 68149 :
 The plaintiffs prevailed at trial in this medical malpractice case and recovered a judgment that requires the defendant to pay damages and interest calculated to total $1,914,807.90. Owing to the defendant’s scorched earth policy of putting the plaintiffs to the test of establishing virtually all of their claims on all issues of damages and liability, the trial extended over some 20 days. Central issues were complex and vigorously contested.
The executive summary from an article Law Library of Congress “Medical Malpractice Liability: Canada” sets out the often difficult task Plaintiff’s face in getting justice in these heartbreaking medical malpractice cases:
The CMPA (Canadian Medical Protective Association) has also been criticized for defending medical malpractice suits extremely vigorously and turning down reasonable offers to settle claims to discourage other lawsuits on a number of occasions. One judge reportedly referred to the CMPA as pursuing a “scorched earth policy.” In Canada, a losing party is generally required to pay about two-thirds of a successful party’s legal fees. Since the CMPA often incurs large legal expenses in defending claims, this is an additional disincentive to persons who believe that they have been injured through malpractice from bringing an action for damages.
One other feature of Canadian law that tends to discourage parties from suing physicians for malpractice is that the Supreme Court has set out guidelines that effectively cap awards for pain and suffering in all but exceptional cases. In a trilogy of decisions released in 1978, the Supreme Court established a limit of Can$100,000 on general damages for non-pecuniary losses such as pain and suffering, loss of amenities and enjoyment of life, and loss of life expectancy. The Supreme Court did state that there may be extraordinary circumstances in which this amount could be exceeded, and courts have allowed the figure to be indexed for inflation so that the current suggested upper limit on awards for non-pecuniary losses is close to $300,000. Nevertheless, the flexible cap on non-pecuniary losses is a major disincentive to persons considering whether they should sue a physician for malpractice and for lawyers to specialize in or seek out malpractice cases.
Surrey Vancouver Medical Malpractice Lawyers – Adverse Inference
The decision in Benhaim v. St‑Germain, 2016 SCC 48 is important on the law but one must also remember that the facts of this tragic cases involved a case of misdiagnosed lung cancer that ending up taking the life of the Plaintiff.
Surrey Vancouver Medical Malpractice Lawyers Explain New SCC Ruling
The majority of the Supreme Court Of Canada held that a trial judge in a medical malpractice case is not required to draw an adverse inference of causation in medical liability cases where the defendant’s negligence undermines the plaintiff’s ability to prove causation and where the plaintiff adduces at least some evidence of causation.
The Court decided the trial judge had carefully weighed the evidence as a whole, including the statistical evidence, the evidence specific to the Plaintiff, and the three expert opinions, all of which involved some speculation and held that she made no palpable and overriding error in finding that the plaintiff had failed to establish causation on a balance of probabilities:
This Court’s decisions in Snell v. Farrell,  2 S.C.R. 311, and St‑Jean v. Mercier, 2002 SCC 15,  1 S.C.R. 491, make it clear that in such circumstances, an adverse inference of causation is one that trial judges are permitted to draw. It is not one they are required to draw. I will begin by discussing Snell, in which Sopinka J. examined developments in English tort law that purported to reverse the onus of proving causation in some circumstances. Traditionally, the plaintiff in a common law negligence claim had to prove on a balance of probabilities that, but for the defendant’s negligent conduct, the plaintiff would not have been injured. Sopinka J. stated that his task was “to determine whether a departure from well-established principles is necessary for the resolution of this appeal” (p. 320). Sopinka J. concluded that such a departure was not warranted, provided that the traditional principles are not applied in an overly rigid manner (p. 328).
 First, Sopinka J. held that it is not necessary that the plaintiff adduce expert scientific or medical evidence definitively supporting the plaintiff’s theory of causation, as “[c]ausation need not be determined by scientific precision” (p. 328; see also pp. 330-31). This is because the law requires proof of causation only on a balance of probabilities, whereas scientific or medical experts often require a higher degree of certainty before drawing conclusions on causation (p. 330). Simply put, scientific causation and factual causation for legal purposes are two different things. Factual causation for legal purposes is a matter for the trier of fact, not for the expert witnesses, to decide: Laferrière v. Lawson,  1 S.C.R. 541, at pp. 607-8; see also Sentilles v. Inter-Caribbean Shipping Corp., 361 U.S. 107 (1959), at pp. 109-10.
 Second, in medical malpractice cases, the defendant is often in a better position than the plaintiff to determine the cause of the injury (p. 322). Sopinka J. held that, in such circumstances, the trier of fact may take into account the relative ability of each party to present evidence on a fact in issue:
The legal or ultimate burden remains with the plaintiff, but in the absence of evidence to the contrary adduced by the defendant, an inference of causation may be drawn although positive or scientific proof of causation has not been adduced. If some evidence to the contrary is adduced by the defendant, the trial judge is entitled to take account of Lord Mansfield’s famous precept. [p. 330]
This precept, stated by Lord Mansfield in Blatch v. Archer (1774), 1 Cowp. 63, 98 E.R. 969, at p. 970, is that evidence should be “weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted” (quoted in Snell, at p. 328). An inference of causation is available to trial judges by virtue of the ordinary operation of these principles in the medical malpractice context:
In many malpractice cases, the facts lie particularly within the knowledge of the defendant. In these circumstances, very little affirmative evidence on the part of the plaintiff will justify the drawing of an inference of causation in the absence of evidence to the contrary.
(Snell, at pp. 328-29) The majority of the Court of Appeal relied in large part on this passage to justify its conclusion that Snell created a rule of law that requires an adverse inference of causation in certain circumstances. The inference of causation Sopinka J. described in Snell is one that trial judges are permitted to draw even in the absence of positive or scientific proof. It is not one that they are required to draw once certain criteria are established. The decision on whether to draw such an inference is left to the discretion of the trial judge. Despite using permissive language to describe the adverse inference in Snell, the decision of the majority of the Court of Appeal failed to give effect to the permissive, discretionary nature of that inference.
Surrey Vancouver Medical Malpractice Lawyers Can Help call 1-877-602-9900 Now
In short a judge may not must apply the adverse inference principle in deciding if the defendant was negligent and caused damages to the plaintiff in a Surrey Vancouver medical malpractice claim. Call us immediately to get the help you need as their are time limits for making a medical malpractice claim.