Recent Ontario cases apply Armstrong, allowing causation to be determined before standard
This article was produced in partnership with Bogoroch & Associates LLP
According to Ryan Marinacci, associate at Bogoroch & Associates LLP, a 2021 decision from the Supreme Court of Canada represents a pivotal case in medical malpractice law.
“The Supreme Court endorsed the view that trial judges can determine causation before standard of care and look to the nature and severity of the injury when they assess whether the defendant fell below that standard,” says Marinacci of Armstong v. Ward. “It’s the strongest pronouncement of this principle in the Canadian case law — and it’s very helpful to plaintiffs.”
The plaintiff in Armstrong underwent a laparoscopic colectomy after which she developed an obstructed ureter that resulted in further health issues. At trial, the trial judge found the defendant surgeon had failed to stay within appropriate surgical margins and therefore was negligent. On appeal, the majority of the Court of Appeal for Ontario held that the trial judge had erred in the original decision. Justice van Rensburg, however, wrote a strong dissent to that conclusion and would have upheld the trial judgment. The plaintiff sought leave to the Supreme Court and ultimately, the high court allowed the appeal for the reasons of Justice van Rensburg.
One of Armstrong’s most significant contributions is its guidance on the sequence in which courts can evaluate medical negligence. Traditionally, courts assessed the standard of care before determining causation. However, Armstrong permits judges to first establish what happened before assessing whether the medical professional’s actions met the required standard of care.
“Before this case, it was less clear that trial judges could do that and without actually determining what happened as a factual question, it's more difficult for the plaintiffs to establish there was breach or breaches in the standard of care,” Marinacci explains. “Overall, Armstrong strengthens plaintiffs’ ability to establish liability and prove negligence, and its application is already being seen in recent decisions.”
In Szeto v. Kives, the defendant gynecologist had performed a procedure that resulted in the plaintiff’s bowel perforation. The Ontario Superior Court applied Armstrong to determine causation before assessing the standard of care, establishing that the perforation was large enough to have been detected during the procedure. By resolving that factual question first, the plaintiff was able to argue more effectively that the standard of care required the surgeon to check for perforations which they had failed to do in this case, an argument that the court accepted.
Marinacci notes that the plaintiff relied on Armstrong to argue that trial judges should determine what happened before addressing standard of care issues, making it easier to prove negligence.
“The court was able to ask whether the standard required the surgeon to check that particular area, the answer was yes, and she clearly didn’t check because if she had of, she would have identified the perforation,” Marinacci explains.
In another recent decision, Dallner v. Gladwell, the trial judge relied on Armstrong for the proposition that the nature of an injury itself could serve as evidence of a breach of the standard of care.
In Dallner, the plaintiff underwent shoulder replacement surgery during which they suffered a brachial plexus injury so extreme that neither the plaintiff’s expert nor the defense expert had encountered one of its severity before. The plaintiff argued, and the trial judge agreed, that this fact alone was strong circumstantial evidence that the surgeon applied excessive traction to the shoulder during the procedure.
“In a sense, they’re relying on what actually happened to assess the standard of care and it’s thanks to Armstrong the plaintiff was able to make that argument,” Marinacci says. “Before the Supreme Court’s ruling, it was less clear whether trial judges could do that.”
For plaintiff-side lawyers, Marinacci advises keeping Armstrong in mind. To quote from the Dallner decision at para. 53, the judge wrote “I will briefly outline that the most recent Supreme Court of Canada decision on surgical negligence, and that's Armstrong v. Ward. It is central to some of the issues.”
“In any surgical negligence case, plaintiff's counsel should read Armstrong very, very closely,” Marinacci sums up. “It's the leading case.”
