The Supreme Court of Canada has ruled in favour of a Barrie woman, upholding a local decision that she be awarded $1.3 million for injuries suffered during surgery resulting in the removal of her kidney.
It echoed the endorsement made by an appeal court judge of Barrie Justice Gregory Mulligan’s decision following the original trial.
Karen Armstrong underwent laparoscopic surgery in February 2010 at what was then called Royal Victoria Hospital (RVH). The trial judge found that, during the colonoscopy, Dr. Colin Ward improperly used a cauterizing device and caused a thermal injury.
She experienced abdominal pain after the surgery and her ureter — which carries urine from the kidneys to the bladder — was blocked with scar tissue, severely damaging her left kidney, which was removed the following October.
“This really changes her life; this is the end of the road,” her lawyer, Jan Marin, said of the high court’s decision. “It’s been almost 11 years since the original surgery.”
Marin said Armstrong, who is now 48, isn’t working as a result of the injury and that she requires some assistance. The decision and monetary award means she can now access the help she needs, including hiring a personal caregiver.
Justice Mulligan of the Ontario Superior Court of Justice in Barrie originally decided in favour of Armstrong, but that ruling was overturned by a majority at the Ontario Court of Appeal.
In December 2019, Justice David M. Paciocco, writing for the majority of the Ontario Court of Appeal three-person panel, found the trial judge had erred in defining the standard of care the doctor had to meet, “improperly establishing a standard of perfection” and allowed Ward’s appeal, dismissing the action against him.
Justice Katherine van Rensburg was the lone holdout on the panel and wrote a lengthy opinion about why the decision of the judge in the first instance should stand.
It was that opinion that Supreme Court of Canada Chief Justice Richard Wagner relied upon Monday when he announced simply that the appeal is allowed. It came on the same day, shortly after the hybrid hearing was held.
Both the Healthcare Insurance Reciprocal of Canada (HIROC) and the Ontario Trial Lawyers Association sought intervener status in the case.
“HIROC participated as an intervener because it was important to have clarity on the issues before the court, including the role of an injury when considering whether there was a breach of the standard of care,” said Anna L. Marrison, who represented HIROC.
“With the (Supreme Court of Canada) accepting Justice van Rensburg's reasons from the Court of Appeal, there has been no significant change in the law," she added.
And that was the big fear, said Ron Bohm, representing the trial lawyers.
If the Court of Appeal’s decision against Armstrong were to stand, it could have set a precedent, hampering the ability for others to bring medical malpractice action.
“The Court of Appeal majority decision, in our view, had the risk of making it next to impossible for certain victims of medical negligence to be able to recover damages for their losses, putting up next to impossible hurdles,” said Bohm. “So we were very concerned about the access to justice issue.”
The Court of Appeal seemed to suggest that if a physician conducting surgery says they follow the proper practice and procedures, then relying on the results would be improper for a trial judge, he said.
Because a patient is unconscious during surgery, their version of events during that period is not available, resulting in “a tremendous imbalance” in the possession of information.
Marin said medical malpractice cases are difficult to begin with and costly to bring forward, so only the most serious cases are pursued. If Armstrong had failed to succeed before the top court, it could have blocked further attempts to seek damages for medical errors.
“This case truly underscores the importance of the dissenting opinion,” said Marin, referring to Ontario Court of Appeal Justice van Rensburg’s opinion in dissent, which the Supreme Court accepted in its entirety.
“They adopted her reasons. Clearly it was impactful to them,” added Marin.
Lawyers for the doctor did not respond to requests for comment.
