Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m F E B R U A R Y 2 0 1 8 45 Halpern says judges "give lip service" to the SCC trilogy of cases, but they haven't dealt with the principles and the concepts adequately. One example is the notion that there is no requirement on the part of family members to provide extraordinary care for no compensation. He says it's also a function of lawyers not being as diligent as they can in pre- senting the damages part of these cases. "These cases are so challenging to win on liability and proving the medical part of it that sometimes we lose track of the damages, and I think the way to fix it is to get a consistent application of the principles from the trilogy in all cases across the country. It just hasn't hap- pened." Wagner says there are very few law- yers practising medical malpractice in Altantic Canada — "maybe a handful" on a regular basis — and a lot of it has to do with the cost of litigation. The cost of litigation in a birth trau- ma case in Ontario might cost between $250,000 and $500,000 and the awards generally run in the range of $8 million to $15 million. In Atlantic Canada or other provinces without a strong cul- ture in medical malpractice litigation, those awards can be in the range of $2 million to $6 million. "The disparity can be quite differ- ent and yet on the disbursement side a properly prepared piece of litigation brought to trial still costs a quarter to half a million dollars," Wagner says. The costs, he says, aren't that dif- ferent because the experts are coming from central Canada and so the cost of litigation is the same. Then there are the provinces such as New Brunswick without a right to a jury. "It's a difficult place to plea a medical malpractice case because the judiciary in their decision- making has typically taken a very con- servative line," he says. "In New Brunswick, the defence bar proudly says they can beat every case," says Wagner. "There was a recent birth trauma case that was very tragic and the court decided to follow the experts of the defendants, which is typical." In Nova Scotia, there is the ability to have jury trials, so all medical malprac- tice cases are done before juries. Wagner says the causation ques- tion needs to be further addressed by the Supreme Court. Some PI lawyers say the court has created confusion in recent statements on causation. "One of the big issues is causation — at least 70 per cent of cases are not over the breach of standard of care but over causation questions. When dealing with causation, with the way our medi- cal system is organized where a number of potential players [are] involved in the treatment of an individual, it becomes very problematic in terms of dealing and meeting the threshold of a 'but for' test." Wagner says the SCC should be set- ting some benchmarks for quantifica- tion of cases. One of the big issues is the pain and suffering cap where people are horribly injured with no prospect of recovery and the maximum they can get is $350,000. "Frankly, in this day and age, it's an insult," he says. L E G A L R E P O RT \ P E R S O N A L I N J U RY Available risk-free for 30 days Order online: store.thomsonreuters.ca Call Toll-Free: 1-800-387-5164 | In Toronto: 416-609-3800 © 2017 Thomson Reuters Canada Limited 00248LR-89366-NP Order # L7798-8107-65203 $124 Cerlox Softcover approx. 280 pages December 2017 978-0-7798-8107-9 Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. Compact and easily referenced, the 5th edition offers a quick refresher when evidentiary arguments arise unexpectedly, together with compelling authority for use in argument. This book is an indispensable tool for litigation counsel. Noteworthy new features include: • New references to the latest Supreme Court of Canada decisions • Expanded discussion on such topics as when an answer to a cross- examination question does not constitute evidence, circumstantial evidence, judicial notice, admissions, corroborative evidence, business records, drug recognition experts, foundation for expert opinions, confessions, the best evidence rule, the parol evidence rule, and solicitor- client privilege • Practical, easy-to-understand chapter headings and subheadings organized around the types of evidentiary objections often raised by counsel in court, in chambers, and before administrative tribunals New Edition The Portable Guide to Evidence, 5th Edition Michael P. Doherty, B.A., M.A., LL.B., M.Jur., Ph.D.

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