Samms Estate v. Moolla, [2019] O.J. No. 1484

The Court of Appeal upheld the trial decision in a medical malpractice case, finding that the trial judge did not err when instructing the jury on the applicable Standard of Care. The case offers a refresher on the application of the principles from the case of ter Neuzen v. Korn (common-sense jury view that standard medical practices are themselves negligent).

Background

The family of the deceased (Mr. Samms) brought an action against multiple health professionals, relating to care he received in 2009 and 2010.

In March 2009 Mr. Samms attended a walk-in clinic complaining of left-sided pain. The on-duty physician ordered a CT scan. The CT scan contained a reference to a 'filling defect' in the stomach. The report was forwarded to the walk-in physician and Mr. Samms' regular GP, Dr. Lottering. An appointment was arranged by the GPs office to have Mr. Samms attend a follow-up appointment to discuss the 'filling defect'. The appointment was cancelled due to Dr. Lottering being hospitalized. The rescheduled appointment was also cancelled by Dr. Lottering's office for reasons not evident in the record.

Unfortunately, the appointment was never rescheduled. Between the fall of 2009 and winter of 2010, Mr. Samms was advised to follow up on the CT results with his GP on at least three occasions and did not do so. Finally, Mr. Samms felt a mass in his abdomen and re-attended Dr. Lottering's office on April 20, 2010. He was subsequently diagnosed with cancer and passed away in 2011. Ultimately the jury concluded that the plaintiffs failed to prove that any defendants fell below the standard of care. The appeal was brought only with respect to Dr. Lottering.

Appeal

The appellants argued that the trial judge erred in his instructions to the jury on two points: (a) standard of care; and (b) error of judgment.

On the standard of care they argued that the trial judge erred by instructing the jury that they could not apply their common sense to the issue and had to rely solely on expert evidence. It was also submitted that the jury would not have understood that it could find Dr. Lottering negligent even if he complied with standard practice if that practice was itself negligent. Indeed, with respect to administrative practices and communication with patients, the appellants say that this case "was ripe for the jury's application of common sense in fixing the standard of care". Secondly, the judge erred by inviting the jury to deliberate on error of...