Neinstein's Nicholas Sampson 'expects we'll see more arguments on the issue in light of it'
In the recent appellate decision Hemmings v. Peng, the court upheld the plaintiff’s success at trial but assigned sole liability to one physician instead of preserving the split between two physicians and the hospital. This change is noteworthy because it underscores the nuanced application of legal causation in medical negligence cases, says Nicholas Sampson, associate at Neinstein LLP.
The plaintiff was 29 years old when she experienced a cardiac arrest while undergoing a cesarean section, resulting in permanent brain damage. The lawsuit, which initially named several defendants, focused on determining the liability of the health care practitioners involved in the incident as well as the hospital.
The Ontario Court of Appeal's decision, which ultimately found the anesthesiologist to be solely liable, focused heavily on legal causation, which is distinct from and goes beyond factual or “but-for” causation. The former requires an analysis of whether the defendant's actions are sufficiently connected to the harm suffered by the plaintiff, and this principle can potentially exonerate a defendant even if factual causation is established — which is exactly what transpired in the Hemmings decision.
“It’s particularly intriguing because it highlights a more recent application of the principle, which we don’t often see,” Sampson says, adding it brings him back to examining the elements of negligence in torts class in his law school days. “Despite finding both a breach and factual causation, the court's interpretation of legal causation did not support holding all defendants liable.”
From a practical perspective, Hemmings is notable because of its ramifications: others practicing in the medical malpractice field should be mindful of the ruling going forward because “it brings the principle of legal causation to the forefront, and I expect we’ll see more arguments on the issue in light of it,” Sampson predicts.
Known for its dedication to clients and boasting a strong track record of success, Neinstein took on the complex and high-stakes case at the trial stage with Oakley & Oakley PC, with Duncan Embury, Daniela Pacheco, and Michelle Kudlats of Neinstein as trial counsel. Despite the appeal court’s determination that liability is solely attached to one defendant instead of being split, importantly the plaintiff will still receive the damages agreed to before the original trial began, Sampson notes.
“Appeals create other complexities, but it’s been a long road for the plaintiff and it’s a good result after years of dealing with this,” he says. “It’s a win for the plaintiff and a win for the firm.”
