It is extremely rare for a judge in Ontario to overrule the decision of a jury.
However, that is precisely what happened in the recent case of Salter v. Hirst. Recently, the Court of Appeal upheld the trial judge’s decision and set out strict requirements for proving causation in medical negligence cases.
In the Salter case, George Salter came to the hospital with severe abdominal pain. Over the course of 3 days in hospital, Salter began vomiting and passing blood. Finally, he began to lose feeling in his lower extremities. Dr. Jason Hirst was the doctor responsible for Salter’s care in hospital. After three days in hospital, Dr. Hirst had Salter transferred to another hospital for more investigation. At the second hospital, Salter underwent emergency surgery that left his legs paralyzed.
Salter sued Dr. Hirst for negligence. He alleged that Dr. Hirst’s failure to transfer him sooner was negligent and that, if he had been transferred sooner, he would have recovered the use of his legs.
After a long trial, the jury found that Dr. Jason Hirst was negligent for failing to transfer George Salter sooner as Salter alleged. The jury also found that Dr. Hirst’s negligence caused Hirst’s paralysis.
Dr. Hirst asked the trial judge to overrule the jury’s decision.He argued that even if he had been negligent, there was no evidence that the delayed transfer caused or contributed to Salter’s paralysis. The trial judge agreed. The judge referred to Rule 52.08 of the Rules of Civil Procedure, which states:
where there is no evidence on which a judgment for the plaintiff could be based or where for any other reason the plaintiff is not entitled to judgment, the judge shall dismiss the action.
Salter’s lawyers appealed. However, the Ontario Court of Appeal held that the trial judge had made the correct decision and dismissed the appeal. In doing so, the Court of Appeal noted that it was not enough for Salter to show that the delay cost him a chance of recovery, since the loss of chance is not compensible in medical malpractice cases. Rather, Salter had to prove that if Dr. Hirst had not been negligent, he would have avoided the paralysis of his legs.
The Salter case is a reminder of the complexity of medical malpractice cases and the care that must be taken to prove every element of such cases.
