COURT OF APPEAL FOR ONTARIO
CITATION: Henry v. Zaitlen, 2024 ONCA 243
DATE: 20240405
DOCKET: C70442
Roberts, Coroza and Gomery JJ.A.
BETWEEN
Sean Omar Henry personally and as Estate Trustee for the Estate of Sandy Robinson, deceased
Plaintiffs (Respondents)
and
Dr. Marshall Zaitlen, Dr. Edgar Jan, Dr. Joseph Fairbrother, Dr. Hilarie Louise Sheehan, Dr. Vera Bril, Dr. Robert Kurtz, Dr. John Doe, Jane Doe, Joan Doe, William Osler Health Centre – Brampton Civic Hospital and University Health Network – Toronto General Hospital
Defendant (Appellant)
Frank McLaughlin, Stephanie Sugar and Christine Windsor, for the appellant
Barbara A. MacFarlane and Michael Hodgins, for the respondent
Heard: January 18, 2024
On appeal from the judgment of Justice Andrew A. Sanfilippo of the Superior Court of Justice, dated February 14, 2022, entered in accordance with the verdict of the jury dated December 13, 2021.
Gomery J.A.:
[1] In this medical malpractice case, Dr. Marshall Zaitlen appeals from the judgment, entered in accordance with the jury’s verdict, holding him liable for damages suffered by his former patient, Sean Henry. The appellant contends that the jury’s finding that he breached the applicable standard of care is plainly unreasonable and unjust. He also contends that the jury’s explanations for its conclusions reveal that it did not act judicially. He asks that the judgment be set aside. If the judgment as a whole is not set aside, the appellant argues that the damages awarded for Mr. Henry’s future income loss are unreasonable and should be reduced or set aside.
[2] I would dismiss the appeal, for the reasons that follow.
Mr. Henry’s medical history
[3] On July 22, 2010, Mr. Henry was diagnosed with a spinal dural arteriovenous (“SDAV”) fistula in his thoracic spinal cord. An SDAV fistula is an abnormal connection between a vein and artery that impairs the flow of blood and nutrients to the spinal cord. It is a potentially serious but rare condition, particularly for a person in his thirties like Mr. Henry when it was diagnosed.
[4] Mr. Henry had come under the care of Dr. Zaitlen, a neurologist, in late January 2010. On January 27, 2010, Mr. Henry attended in the emergency room of the Brampton Civic Hospital (the “Hospital”) complaining of lower back pain, numbness down the left leg and pelvic area, and difficulty urinating and voiding. Magnetic resonance imaging (MRI) of his lumbar or lower spine showed enhancement of the conus (the terminal end of the spinal cord) and of the cauda equina nerve roots below the conus. Dr. Dilip Wali, an internal medicine specialist, examined Mr. Henry on January 28, 2010, and was of the view that his condition warranted further neurological assessment and treatment. In his consultation note, he wrote that he had arranged for Dr. Zaitlen to see Mr. Henry “on an urgency basis”.
[5] Dr. Zaitlen saw Mr. Henry for the first time on January 29, 2010. In the report he prepared that day, Dr. Zaitlen described the case as an “[e]mergency referral … for a new onset sensory loss over the perineum and the bowel and bladder and sensory and motor loss over the lower limbs”. He noted that there was “no exposure, injury or infections or anything else we could find as a trigger”. Based on the January 28 MRI report, Dr. Wali’s consultation report, Mr. Henry’s history and symptoms, and a physical and neurological examination, Dr. Zaitlen considered that there were four possible explanations for Mr. Henry’s complaints: trauma, infection, inflammation, or cancer. Dr. Zaitlen sent Mr. Henry for a lumbar puncture to obtain a sample of his spinal fluid and wrote that he would follow up with him.
[6] Dr. Zaitlen saw Mr. Henry for a second time on February 12, 2010, two weeks after the first visit. Mr. Henry reported pain, particularly in the lower back, hip, and armpit. Mr. Henry’s symptoms had not resolved but were, according to Dr. Zaitlen’s note that day, “at least stable”. Spinal fluid testing had ruled out cancer and narrowed the likelihood of infection. There was little evidence of trauma. Although Mr. Henry had a high white cell count, he did not have meningitis. Some test results were still pending. Dr. Zaitlen did not order further tests at the February 12, 2010 appointment, instead electing to continue to follow up with Mr. Henry to assess him clinically.
[7] Dr. Zaitlen saw Mr. Henry for a third time on March 5, 2010. Mr. Henry continued to have numbness in his saddle area, muscle twitching and spasms, stiffness in his lower back, pain in his hip and buttock, and sensory discomfort in his leg. His symptoms were still neither worsening nor getting any better, in Dr. Zaitlen’s view. Mr. Henry continued to suffer from an “unusual condition”, the diagnosis for which remained unclear. Dr. Zaitlen ordered five more tests, including a repeat MRI of Mr. Henry’s lower back and an MRI of his head and cervical or upper spine. He also referred Mr. Henry to Dr. Vera Bril, a neurologist specializing in autoimmune inflammatory disease.
[8] Dr. Zaitlen remained Mr. Henry’s primary neurologist notwithstanding the referral to Dr. Bril. Mr. Henry was also seeing other medical professionals, including a family doctor.
[9] Mr. Henry underwent an MRI of his head and cervical spine on March 14, 2010, the results of which were normal. He underwent a second MRI of his lower spine the next day, which showed the same abnormality of the conus and cauda equina nerve roots seen on the lumbar MRI in late January. Dr. Hilarie Sheehan, the radiologist who interpreted the March 15 MRI results, noted in her report that Mr. Henry was “not improving” and that his condition remained undiagnosed. Since his head and cervical spine had been evaluated, she wrote that “formal imaging of the thoracic spinal cord may also be warranted to exclude abnormality at that level.”
[10] On March 23, 2010, Mr. Henry returned to the Hospital’s emergency room. According to the ER record, he reported an “acute worsening” of the numbness and leftness in his left leg, leaving him able to walk only with difficulty. He also reported an episode of difficulty voiding, a problem which he said had happened on and off since late February 2010. After Mr. Henry was examined by an ER physician, he was discharged home for continued follow up with Dr. Zaitlen.
[11] Dr. Zaitlen received the March 14 and 15 MRI results, a copy of Dr. Sheehan’s report, and a copy of the March 23 ER record. He also received the results of a bone scan and gallium scan he had ordered on March 5, both of which were normal. He did not take any steps to contact Mr. Henry or have him reattend, nor did he order any further investigations, notably an MRI of Mr. Henry’s thoracic (or mid-level) spine.
[12] Mr. Henry attended at Dr. Bril’s office at the Toronto General Hospital on June 2, 2010. Dr. Zaitlen had provided her with his January and February consult notes, the January and March MRI results, and the results of the spinal fluid tests. He did not provide her with a copy of his March 5 record, or the March 23 ER admission note, or otherwise advise her that Mr. Henry had gone to the ER that day with an “acute worsening” of some symptoms.
[13] A clinical fellow working with Dr. Bril obtained a history from Mr. Henry. It did not refer to Mr. Henry’s March 23 visit to the ER. Dr. Bril performed a neurological examination, reviewed the history obtained from the clinical fellow, and reviewed the records that Dr. Zaitlen had sent to her. In her consultation report to Dr. Zaitlen, she noted that Mr. Henry had had a respiratory tract infection about five months earlier and subsequently began to exhibit the symptoms brought to him under Dr. Zaitlen’s care. She concluded that Mr. Henry was suffering from post-infectious myelopolyradiculopathy, an inflammatory reaction to an infection. She recommended treatment with anti-inflammatory intravenous immunoglobulins, or IVIG.
[14] Dr. Zaitlen accepted Dr. Bril’s diagnosis. On July 12, 2010, Mr. Henry began the first of five days of IVIG treatment at the Hospital. Following the first session, Mr. Henry had lower limb weakness and incontinence. He returned to the Hospital by ambulance after being sent home earlier that day. He was sent for another MRI of his lower spinal cord, which showed an increased swelling of the conus.
[15] Mr. Henry returned to the Hospital for the second IVIG treatment on July 13, 2010. His condition deteriorated again afterwards, and he was brought to see Dr. Zaitlen in a wheelchair. This was the first time that Mr. Henry had seen Dr. Zaitlen since March 5. Dr. Zaitlen prescribed a steroid injection to address Mr. Henry’s ongoing lower limb weakness.
[16] Mr. Henry had his third IVIG treatment on July 14, and again experienced lower limb weakness and incontinence. After the fourth treatment on July 15, Mr. Henry was unable to walk. Dr. Zaitlen discontinued the IVIG therapy and started Mr. Henry on a six-day course of intravenous steroid therapy. Mr. Henry was then sent home to have the steroids administered via home care.
[17] Mr. Henry’s condition continued to deteriorate. He had lower limb weakness, loss of bladder and bowel control, and pain and unusual sensations up to the level of his belly button. On July 20, 2010, Mr. Henry returned to the Hospital by ambulance, now in a state of paraplegia.
[18] Since Dr. Zaitlen was on vacation, Mr. Henry was assessed by another neurologist, Dr. Michael Angel. Dr. Angel conducted a lumbar puncture and ordered an MRI of Mr. Henry’s thoracic spine, given his “clear upper motor neuron features”. The radiologist who interpreted the MRI on July 20, Dr. Robert Kurtz, found the results were “highly suspicious for a dural AV fistula within the mid thoracic region” and another consulting neurologist, Dr. Brian Best, agreed. Mr. Henry was sent to the Toronto Western Hospital. The SDAV fistula diagnosis was confirmed on July 22 with a further MRI and consultation with an interventional neuroradiologist, Dr. Timo Krings.
[19] The fistula in Mr. Henry’s spine was surgically repaired on July 25, 2010. Mr. Henry underwent physical therapy and recovered his ability to walk. When examined on July 2019, however, his legs remained weak and spastic. He had difficulty walking and little stamina or tolerance of exercise. He also had severe problems with bladder and bowel control and severe constipation. At the trial in late 2021, Mr. Henry testified that he still had nerve pain in his legs and pelvis and leg spasms. His gait remained uneven, because his left leg was much weaker than his right, and he required help over distance. He continued to have bowel and bladder symptoms that significantly impacted his day-to-day activities. He required ongoing therapy and medication. He had not returned to work.
The trial of the action
[20] Mr. Henry and his spouse sued Dr. Zaitlen and others involved in his care in 2012. The action had been discontinued or dismissed against all defendants except Dr. Zaitlen by the time a trial took place in November and December 2021 before the trial judge and a jury.
[21] The trial lasted over three weeks. The respondents’ experts on liability and causation included Dr. Gordon Young, a neurologist, and Dr. Donald Lee, a neuroradiologist. Dr. Krings, the interventional neuroradiologist who repaired the fistula, testified as a participant expert. The defence called three expert neurologists on the issue of liability and causation: Dr. Daniel Wong, Dr. Mark Tarnopolsky, and Dr. Gerald Brock. Dr. Zaitlen and Dr. Bril also testified. No radiological or neuroradiological experts were called by the defence. Other ordinary and expert witnesses were called by the parties to testify about Mr. Henry’s recovery, the impact of his injuries, his past and future care costs, and his past and future income loss.
[22] Based on closing arguments, the respondents’ theory of liability was that Dr. Zaitlen breached the standard of care by failing to investigate the cause of Mr. Henry’s condition after receiving Dr. Sheehan’s report suggesting thoracic spinal cord imaging in mid-March 2010 and learning of Mr. Henry’s trip to the emergency room with worsening symptoms a week later. Had thoracic spinal cord imaging been performed at that time, or at any time prior to July 2010, Mr. Henry’s SDAV fistula would have been detected and diagnosed before he became paraplegic, and he would have recovered much more function after the fistula was repaired.
[23] The defence took the position that Dr. Zaitlen did not breach the standard of care of a reasonable neurologist, given the difficulty in diagnosing an SDAV fistula, the rarity of this condition in a man of Mr. Henry’s age, the absence of specific clinical symptoms suggesting an SDAV fistula prior to July 2010, and aspects of Mr. Henry’s presentation inconsistent with this diagnosis. At worst, Dr. Zaitlen’s failure to order thoracic imaging was an error of judgment. The defence also disputed Mr. Henry’s claim that he was unable to return to work.
[24] The trial judge gave the jury lengthy instructions, which reflected the parties’ submissions at the pre-charge conference. The instructions included a summary of the evidence.
[25] After deliberating for three days, the jury returned a verdict in the respondents’ favour. It awarded Mr. Henry general damages, past income loss, future income loss and future care costs totaling just under $1.5 million. It awarded the Estate of his late wife, Sandy Robinson, just over $158,000 in damages for loss of care, guidance and companionship, and for past value of loss of housekeeping and maintenance. The trial judge entered judgment based on this verdict (save for an adjustment of the damages awarded to Ms. Robinson’s Estate for past loss of housekeeping and maintenance, which the parties agreed should be reduced), plus pre-judgment interest, subrogated claims, and costs.
The grounds of appeal
[26] The appellant effectively raises three grounds of appeal:
(i) The jury’s finding that he breached the standard of care is unreasonable and unjust, given the evidence at trial;
(ii) The jury’s answers reveal that it did not act judicially; and
(iii) It was not open to the jury to make the future damages award that it did.
[27] The appellant asks this court to set aside the jury’s verdict and either grant judgment in his favour, with costs, or order a new trial. Alternatively, he requests that the damages awarded for future income loss be set aside or reduced.
[28] The respondents deny that the jury made any error justifying this court’s intervention. They ask that the appeal be dismissed.
A. Was the jury’s verdict that the appellant breached the standard of care plainly unreasonable and unjust?
(1) The standard of review of civil jury verdicts
[29] The standard of review of civil jury verdicts is well-established. Assuming a jury was properly instructed, its verdict should not be set aside “unless it is so plainly unreasonable and unjust as to satisfy the Court that no jury reviewing the evidence as a whole and acting judicially could have reached it”: McLean v. McCannell, [1937] S.C.R. 341, at p. 343; Stilwell v. World Kitchen Inc., 2014 ONCA 770, 327 O.A.C. 146; Goodwin (Litigation Guardian of) v. Olupona, 2013 ONCA 259, 305 O.A.C. 245; Sacks v. Ross, 2017 ONCA 773, 417 D.L.R. (4th) 387, and Cheung v. Samra, 2022 ONCA 195. The standard of review of civil jury verdicts is “exceptionally high”: Cheung, at para. 50, citing Stilwell, at para. 33. So long as there is some evidence to support it, a civil jury’s verdict will be accorded a high degree of deference: Sacks, at para. 133; Gutbir (Litigation guardian of) v. University Health Network, 2012 ONCA 66, 287 O.A.C. 223, at para. 5.
[30] This high degree of deference does not strip the appellate court of the ability to set aside a civil jury verdict if it is plainly unreasonable and unjust. Civil juries are not infallible, and their verdicts should not be regarded with awe: El Dali v. Panjalingam, 2013 ONCA 24, 113 O.R. (3d) 721, at para. 16; Vancouver-Fraser Park District v. Olmstead, [1975] 2 S.C.R. 831, at p. 839. Civil jury verdicts have been set aside in cases such as Vancouver-Fraser Park District; Graham v. Hodgkinson (1983), 40 O.R. (2d) 697 (C.A.); Adam v. Campbell (1950), 3 D.L.R. 449 (S.C.C.); Hackman v. Vecchio (1969), 4 D.L.R. (3d) 444 (B.C.C.A.). These are exceptional cases, however. Given the latitude that civil juries have in deciding to accept or reject evidence, an appellate court will not interfere with a civil jury verdict unless it lacks any evidentiary foundation or is clearly incompatible with any reasonable assessment of the evidence.[1]
(2) The jury’s finding that the appellant breached the standard of care in this case is not plainly unreasonable and unjust
[31] In my view, a jury could reasonably find that the appellant breached the relevant standard of care, relying on the evidence of the respondents’ expert neurologist, Dr. Young, and rejecting the opinions of the appellant’s neurology experts on the standard of care.
[32] In his examination in chief, Dr. Young testified that Dr. Zaitlen was negligent in failing to further investigate the cause of Mr. Henry’s symptoms after March 5, 2010. When asked about how Dr. Zaitlen should have responded to Dr. Sheehan’s March 15 note suggesting a thoracic MRI on March 15, Dr. Young testified in chief as follows:
Q. And, what is your opinion about what Dr. Zaitlen should have done at this point with respect to this?
A. I think it would have [been] prudent, probably really indicated, to go ahead with imaging the thoracic cord. We still don’t have a diagnosis. He’s imaged the other areas. He had looked for other sights [sic] of involvement, but had missed the, looking at the thoracic cord. It was one part that was not explored and should have been. And I think he should have requested an MRI of the, of that, of the thoracic cord.
Q. And what is your opinion in terms of the timing to do that type of imaging?
A. I think with dealing with something like this, a serious condition affecting the lower spinal cord, that could affect other parts of the cord, it is best to do this urgently and not delay. Probably, within days.
Q. And, Doctor, what is your opinion on whether Dr. Zaitlen met the standard of care at this point in time?
A. I think he did not meet the standard of care. He should have heeded that advice [in Dr. Sheehan’s note on the March 15 MRI]. And I think it was indicated to scan the thoracic cord at that time.
[33] In Dr. Young’s view, the need for further investigation was heightened after Mr. Henry attended at the emergency room on March 23 with a worsening of some of his symptoms. He testified that it was unusual for the symptoms experienced by Mr. Henry to fluctuate if their root explanation was a single event, such as trauma or an infection. In the absence of a diagnosis or any explanation for the patient’s symptoms, Dr. Zaitlen should have ordered a thoracic MRI pending the scheduled consultation with Dr. Bril. In Dr. Young’s view, Dr. Zaitlen also should have arranged to see Mr. Henry. He testified that “further follow-up was indicated for Mr. Henry, regardless of the referral. … [Dr. Zaitlen] needed to follow him up and see him periodically because he was having fluctuations and his course was unstable”.
[34] Dr. Young made important concessions in cross-examination. He recognized that an SDAV fistula is a very rare type of malformation that is unusual or atypical in a man in their early thirties, as Mr. Henry was in 2010. He acknowledged that some of Mr. Henry’s symptoms were inconsistent with this diagnosis and that they did not point to a problem with his thoracic spine. Dr. Young admitted that Dr. Zaitlen did not breach the applicable standard of care when he failed to diagnose the SDAV fistula or even consider it as a differential diagnosis on January 29, February 12, and March 5, 2010. He conceded that Dr. Zaitlen did not otherwise breach the standard of care in his management and investigation of Mr. Henry’s condition on these dates. In particular, he agreed with defence counsel’s suggestion that Dr. Zaitlen’s decision not to order imaging of Mr. Henry’s thoracic spine on March 5, 2010, was an exercise of his professional judgment.
[35] The line of questioning that elicited this last concession was, however, clearly focussed on what Dr. Zaitlen did or did not do on March 5. This is implicit in defence counsel’s reference to Mr. Henry’s symptoms that day and the tests that Dr. Zaitlen did order. It is also implicit in defence counsel’s questions suggesting that five weeks — that is, the number of weeks since Mr. Henry had met with Dr. Zaitlen for the first time on January 29, 2010 — was not a very long time without a diagnosis, and that Mr. Henry’s condition was stable at that point.
[36] Defence counsel did not challenge Dr. Young directly on his testimony that Dr. Zaitlen breached the standard of care by failing to order thoracic imaging or otherwise follow up with Mr. Henry in late March, April or May 2010. Defence counsel instead put to Dr. Young that he could not criticize the sufficiency of Dr. Zaitlen’s investigation given his concession that Dr. Bril had met the standard of care in early June 2010. In response, Dr. Young explained that, in his view, Dr. Bril did not appreciate that Mr. Henry had a “relapsing, remitting” condition, that is, that his symptoms had fluctuated over time. Had she understood this, she would not have diagnosed Mr. Henry with post-infectious myelpolyradiculopathy, which Dr. Young described as a “monophasic illness that has an abrupt course and then people get better”.
[37] Given this answer, in my view, Dr. Young’s testimony that Dr. Zaitlen breached the standard of care after March 5, 2010 was not clearly impeached.
[38] The trial judge viewed Dr. Young’s evidence the same way. During the pre-charge conference, defence counsel took the position that Dr. Young conceded that Dr. Zaitlen had not breached the standard of care at any point. The trial judge disagreed. In his charge to the jury, he stated that “Dr. Young testified that Dr. Zaitlen acted reasonably in his 5-part plan on March 5, 2010 to order imaging, scans, and a referral to Dr. Bril, whom he stated is a recognized expert in her fields” and that “Dr. Young stated that Dr. Zaitlen’s decision not to order the imagining of the thoracic spine on March 5, 2010 was a reasonable approach that a reasonable neurologist could take in the circumstances”. He summarized Dr. Young’s evidence about Dr. Zaitlen after March 5 as follows, however:
Dr. Young’s expert opinion was that as Mr. Henry’s medical condition remained undiagnosed in March 2010, Dr. Zaitlen ought to have ordered MRI imaging of the entire spine. Dr. Young stated that Dr. Zaitlen did not meet the standard of care because the “net needed to be cast broadly” to look at the entire spinal cord when you do not have a diagnosis and you do not have a cause, or explanation or a localization for the problem. Dr. Young stated that Dr. Zaitlen ought to have examined the entire central nervous system for lesions, and this would include the thoracic spine. Dr. Young stated that it would have been prudent, “probably really indicated” for Dr. Zaitlen to heed the “Impression” noted by the radiologist in her March 15, 2010 report to scan the thoracic cord.
[39] The appellant contends that the jury could not reasonably have found that Dr. Zaitlen breached the standard of care while absolving Dr. Bril of any blame. I disagree. As already mentioned, Dr. Young explained why, in his view, Dr. Bril acted reasonably based on her limited understanding of Mr. Henry’s medical history. His explanation had evidentiary support. In her June 2, 2010 consultation letter to Dr. Zaitlen, Dr. Bril wrote that Mr. Henry’s symptoms had begun five months earlier, following which she understood that he “worsened, plateaued, and is recovering”. This understanding was incorrect, given the “acute worsening” of some of Mr. Henry’s symptoms observed when he attended the emergency room on March 23. His symptoms had not plateaued but waxed and waned. This was known to Dr. Zaitlen but not to Dr. Bril.
[40] The appellant contends that the jury’s finding on liability ignored Dr. Young’s admission that it was “hard to ignore” the diagnosis of Mr. Henry’s SDAV fistula when reviewing what transpired in the months leading up to it. In the appellant’s submission, this amounted to an admission that Dr. Young engaged in a retrospective analysis, contrary to the principles set out in Lapointe v. Hôpital Le Gardeur, [1992] S.C.R. 351, at pp. 362-63 and Ter Neuzen v. Korn, [1995] 3 S.C.R. 674, at para. 34. I do not agree that Dr. Young’s acknowledgement amounts to a confession of hindsight bias. I further note that the trial judge instructed the jury to avoid hindsight bias in determining the appropriate standard of care for a general neurologist in Ontario in 2010. The jury is presumed to have heeded this instruction.
[41] Finally, the appellant argues that Dr. Young’s opinion should have been given no weight, given that he resiled from some positions he had taken in his written reports and given the significant concessions he made under cross-examination. In the appellant’s submission, the jury clearly should have preferred the evidence of Dr. Wong and Dr. Tarnopolsky, the expert neurologists who testified about the standard of care for the defence and who both expressed the view that Dr. Zaitlen acted reasonably throughout his care of Mr. Henry.
[42] In a civil appeal of a jury verdict, an appellate court’s role is not to reweigh the evidence or consider whether most judges would have reached the same conclusion as the jury. There was an evidentiary basis, recognized by the trial judge in his instructions, to conclude that Dr. Zaitlen breached the standard of care. The jury’s verdict is entitled to great deference. I would accordingly reject this ground of appeal.
B. Do the jury’s answers reveal that it did not act judicially?
[43] On the jury sheet, the jury was asked to explain briefly how Dr. Zaitlen breached the applicable standard of care and how this in turn caused Mr. Henry’s damages. The appellant contends that the jury’s explanation shows that it disregarded the judge’s instructions on the law and reached conclusions unsupported by any evidence.
(1) The principles applicable to review of a jury’s answers
[44] Just as the level of deference given to civil jury verdicts is exceptionally high, any explanation provided by the jury for its conclusions “should be given the fullest possible effect and supported, if possible, by any reasonable construction”: Stillwell, at para. 34; see also Cheung, at para. 50. An appellate court may intervene only when a jury’s answers “cannot in law provide a foundation for a judgment”: Cheung, at para. 48, citing McLean v. Knox, 2013 ONCA 357, 2 D.L.R. (4th) 664, at para. 20. The jury’s explanation should be assessed in the context of the competing theories advanced by the parties, as well as the evidence, the trial judge’s characterization of the parties’ positions, and their instructions to the jury: Sacks, at para. 154.
[45] In accordance with these principles, the focus of a reviewing court should be whether the jury’s explanation, read generously and contextually, reflects findings supported by the evidence. Civil juries are presumed to understand and properly apply the instructions provided by trial judges, and their explanation of their verdict is presumptively the result of a proper consideration of the evidence and the issues and adherence to the legal instructions provided in the trial judge’s charge: Cheung, at para. 49. In Stilwell, at para. 36, this court endorsed Laskin C.J.C.’s admonition to appellate courts in Wade v. C.N.R, [1978] 1 S.C.R. 1064, at pp. 1069-1070, even though he was in dissent on that case:
Appeal Courts do not fine-comb jury answers but accord them the respect of a common sense interpretation even where there may be some ambiguity in the answers … It is always timely to be reminded that juries do not write reasons for judgment, and their answers must be taken against the background of the evidence from which they are entitled to select, without manifesting their selection, what is credible, what is significant, what is persuasive to them. … It is one thing to interfere with a jury’s verdict where there is simply no evidence to support its findings or to support a critical one; it is a different thing, and not to be encouraged, to interfere with its findings where there is evidence, however slight, on which they may be based, but where because of offsetting evidence a question of credit and weight arises. These are matters for the jury alone.
[46] A civil jury’s verdict should accordingly not be set aside simply because its explanation is cursory, inelegant, even somewhat ambiguous. Jurors are lay persons “who cannot be expected to craft reasons with the detail expected of the judiciary”: Cheung, at para. 67.
(2) The jury’s answers, read contextually and generously, show that it acted judicially
[47] In the section entitled “Standard of Care” on the jury sheet, the foreperson ticked “Yes” in response to the question: “Have the Plaintiffs proven on a balance of probabilities that … Dr. Zaitlen breached the standard of care of a reasonably prudent general neurologist practicing in Ontario in 2010?”. In the space provided for the jury to describe how Dr. Zaitlen breached the standard of care, the foreperson wrote as follows:[2]
Dr. Zaitlen breached of standard of care by
1. Not continuing to investigate after the “working dignosis” was formed from March to June
2. Communication with Henry was lacking to the pont of breach, by not comunicating the working dignosis, IVIG treatment, or differencia dignostc
3. Based on recomendatio of radiologist the thorasic imaging was not done
[48] In the section entitled “Causation”, the answer “Yes” was ticked off in response to the question: “[H]ave the Plaintiffs proven, on a balance of probabilities, that but for the breach of the standard of care, Sean Henry’s injuries would not have occurred?”. Below this, in the space provided for a description of how the breach of the standard of care caused Sean Henry’s injuries, the foreperson wrote:
1. Dr. Zaitlen’s breach of the standard of care caused Sean Henry’s injuries because of the delay in diagnosis, lack of communication, instruction and planning
2. This left Mr. Henry in limbo state, unable to proactively manage his own situation, leading to further worsening of his condition
3. Had the SDAVF been diagnosed before June 2010, Mr. Henry would have been in a more favourable position for treatment and recovery with likely fewer deficits
[49] The appellant contends that the jury’s answers show that it disregarded the evidence and ignored the trial judge’s instructions on the law. With respect to the jury’s explanation as to how Dr. Zaitlen breached the standard of care, the appellant argues that: (1) it was unreasonable for the jury to find that Dr. Zaitlen failed to investigate from March to June 2010; (2) it was not open to the jury to find that Dr. Zaitlen’s lack of communication to Mr. Henry breached the standard of care; and (3) the jury mischaracterized Dr. Sheehan’s reference to possible thoracic imaging as a “recommendation”. With respect to the jury’s explanation of its conclusion on causation, the appellant contends that (1) the first sentence of the answers is conclusory; (2) there was no evidence that Mr. Henry’s inability to proactively manage his condition caused his damages; and (3) the jury was required to explicitly find that the SDAV fistula would have been diagnosed but for Dr. Zaitlen’s breach of the standard of care, but did not do so.
[50] In oral argument, the appellant focused on the parts of the jury’s answers referring to Dr. Zaitlen’s lack of communication with Mr. Henry and its impact on him. The appellant argued that these references reveal that the jury’s decision was untethered to the evidence, as no expert witness testified that a lack of communication to Mr. Henry breached the standard of care or caused his damages. I will deal first with this argument, before turning to the appellant’s other criticisms of the jury’s answers.
[51] There are two ways to approach the jury’s explanations for its conclusion that Dr. Zaitlen breached the standard of care and caused Mr. Henry’s damages. The first way, advocated by the appellant, requires that each numbered sentence in the explanation be read independently of the others. This would mean that the jury found that Dr. Zaitlen breached the standard of care in three separate and different ways, each of which independently caused damages to Mr. Henry. The second approach is to read the jury’s explanations holistically.
[52] The jury’s answers should be approached in the latter way. This makes more sense given the answers’ contents, and aligns with the governing interpretative principles earlier referenced, the evidence, the parties’ arguments, and the trial judge’s summary of the evidence and instructions on the law. Unlike the appellant’s suggested interpretation of the answers, this reading assumes, as this court is bound to do, that the jury did what it was instructed to do and it gives effect to its overall conclusion on liability.
[53] Approaching the answers holistically, as opposed to viewing them as two lists, reveals a rational chain of reasoning. In explaining how Dr. Zaitlen breached the standard of care, the jury first made a general observation that he did not continue to investigate from March to June 2010. It then indicated more specifically what he should have done to investigate during this period: he should have communicated with Mr. Henry and ordered thoracic imaging. In its explanation on causation, the jury began by stating that Dr. Zaitlen’s breach gave rise to a “delay in diagnosis, lack of communication, instruction and planning”. It then referred to how this impacted Mr. Henry in the short term. It concluded that, had the diagnoses been made before June 2010, Mr. Henry would “have been in a more favourable position for treatment and recovery with likely fewer deficits”.
[54] This interpretation of the jury’s explanation is consistent with the evidence at trial. As already discussed, Dr. Young testified that Dr. Zaitlen breached the standard of care by failing to pursue his investigation of Mr. Henry’s symptoms after March 5, 2010, notably by failing to order a thoracic MRI and failing to arrange for further follow-up with him so that his fluctuating symptoms could be recorded and tracked. With respect to causation, two radiological experts, Dr. Lee and Dr. Krings, testified that the SDAV fistula would have been detected had dedicated thoracic imaging been performed prior to July 22, 2010. Their opinion was based on their review of the MRIs of Mr. Henry’s lower spine in January and March 2010, which showed subtle indications of a vascular abnormality. Dr. Krings and Dr. Young both testified that a patient’s recovery from an SDAV fistula depends on whether it is repaired before the patient’s symptoms become acute.
[55] Read holistically, the jury’s explanation is also consistent with the trial judge’s summary of the evidence in his final instructions. I have already reproduced the key passages of his summary of Dr. Young’s evidence. The trial judge summarized Dr. Krings’ evidence on causation as follows:
Dr. Krings stated that in 2010, he would have worked in a patient with Mr. Henry’s condition on an urgent (not emergent) basis, within 2 weeks of diagnosis for an intervention to remedy the Fistula. Had Mr. Henry been diagnosed in March or April 2010, he would have seen him within 2 weeks.
Dr. Krings provided the expert opinion that recovery of function from the spinal cord injury resulting from an SDAV Fistula is better when the patient is seen early, and better when the symptoms are less severe and have been of a shorter duration. Put differently, he testified that (i) the worse the symptoms, the less likely a patient will return to normal; (ii) the longer the symptoms, the less likely a patient will return to normal. This is because, he explained, the venous congestion caused by the SDAV Fistula damages the spinal cord and gets worse the longer it is left untreated.
Dr. Krings testified that, in his opinion, based on Mr. Henry’s clinical status in May and June 2010, his outcome would have been significantly better if there had been earlier intervention as Mr. Henry’s deficits were not as pronounced as they were in July 2010 when he saw the patient. He cautioned that he has “no crystal ball” but this was his opinion.
…
Dr. Krings explained that it was Mr. Henry’s serious decline in July 2010 that affected his outcome. [Emphasis added.]
[56] Finally, read as a whole, the jury’s answers are consistent with the respondents’ theory of the case as articulated in closing argument at trial. Relying on the evidence of Dr. Young, Dr. Krings, and Dr. Lee, the respondents’ counsel contended that the jury should find Dr. Zaitlen breached the standard of care by failing to take steps to investigate Mr. Henry’s symptoms after March 5, notably by not ordering a thoracic MRI. She argued that, but for this breach, Mr. Henry’s SDAV fistula would have been detected and diagnosed earlier, with the result that he would have suffered fewer permanent injuries.
[57] An appellate court should presume that the jury considered the evidence and heeded the judge’s instructions. If I were to accept the appellant’s interpretation of the jury’s answers, I would have to conclude that the jury ignored the trial judge’s summary and instructions, the evidence, and the parties’ arguments, in favour of a theory of the case that was not supported, argued, or even referred to during the trial. There is no basis to do so here.
[58] A civil jury’s answers must be read generously, contextually, and in a way that gives effect to its verdict, if reasonably possible. Here, the jury’s explanation of its findings and reasoning on the standard of care and causation is reasonable if read holistically. I accordingly reject the appellant’s proposed interpretation of the answers.
[59] The appellant’s remaining criticisms of the jury’s answers relate to some of the wording used. This court’s role is not to scrutinize the jury’s answers critically with the goal of identifying potential errors. I am, in any event, unpersuaded that the answers reveal any error in reasoning justifying this court’s intervention.
[60] The jury’s explanation does not imply that it overlooked Dr. Young’s acknowledgement that the March 5, 2010 referral to Dr. Bril constituted an investigation by Dr. Zaitlen. This acknowledgement is not inconsistent with the jury’s conclusion that Dr. Zaitlen was negligent in failing to investigate further after this date.
[61] The jury’s reference to Dr. Sheehan’s comment on the March 15 MRI as a “recommendation” is inoffensive. As observed in Cheung, at para. 67, jurors “are lay persons who cannot be expected to craft reasons with the detail expected of the judiciary”. The jury’s use of the term should not be read to imply that it interpreted the medical record in a way contrary to the evidence. It is equally reasonable to infer that the jury used the word “recommendation” in its ordinary, non-technical sense.
[62] Finally, I do not agree that the jury’s answers insufficiently explain the link between the breach of the standard of care and Mr. Henry’s damages. A civil jury is not required to give a detailed explanation of its conclusions. In another medical malpractice case, Cheung, this court held at para. 52 that a civil jury’s conclusory explanations with respect to the breach of standard of care and causation did “not mean that they did not make a finding about an essential matter”. As explained at para. 53:
Contrary to what the trial judge found, the answers did not indicate that the jury’s reasoning was clearly erroneous because their answers failed to indicate the physiological mechanism of injury. … [I]t was not necessary that each juror come to a firm or the same conclusion about the mechanism of injury. Keeping in mind the presumption that the jury’s answers are the result of a proper consideration of the evidence and adherence to the trial judge’s charge there is no basis to doubt the integrity of the verdict.
[63] This court held in Cheung that the trial judge had speculated in inferring that the jury ignored her instructions, as there was “no basis to conclude that the jury proceeded on any erroneous premise or was confused or mistaken as to the instructions given to it” and that the answers given were “not tainted by doubt or ambiguity”: Cheung, at para. 69, citing Stilwell, at paras. 33-34.
[64] I share the same view in this case. The jury was asked whether the respondents had proved “on a balance of probabilities, that but for the breach of the standard of care, Sean Henry’s injuries would not have occurred”. The jury answered yes. In its explanation, it stated that the breach caused the injuries “because of the delay in diagnosis”, and that, had the SDAV fistula been diagnosed before June 2010, Mr. Henry “would have been in a more favourable position for treatment and recovery with likely fewer deficits”. This echoed the respondents’ submissions, in closing argument, on causation:“[W]e say it is likely that Dr. Zaitlen’s actions caused Sean’s — Sean Henry’s severe and permanent impairments. Because thoracic imaging would have detected it, it would have led to a timely diagnosis and it likely would have prevented Sean’s permanent injuries.”
[65] The jury was not required to explicitly state that the diagnosis was delayed because Dr. Zaitlen did not order thoracic imaging. This is implicit when the jury’s explanation on causation is read together with its explanation on the standard of care, which noted that thoracic imaging had not been done. Nor was the jury required to state anything further to affirm that the respondents had proved causation on a balance of probabilities, given its “yes” answer to the question set out on the jury sheet. Although it might have been preferable for the jury to use different language in its explanation, I do not infer that it found causation based only on a loss of a chance. This would be contrary to its answer to the main question and to the judge’s instruction, which the jury is presumed to have followed.
[66] I would accordingly reject this ground of appeal.
C. The jury’s award for future income loss should not be set aside
[67] The jury awarded Mr. Henry $194,171 for past income loss and $429,786 for future income loss.
[68] The appellant contends that the jury’s award for future income loss is inconsistent with its award for past income loss. The jury awarded Mr. Henry damages roughly equivalent to the value of only three years of lost income. This implies that the jury found that Mr. Henry would have been able to return to work after his surgery. The appellant argues that there was no expert evidence that, having returned to work, Mr. Henry would have to retire early as a result of injuries caused by the appellant’s negligence.
[69] In the alternative, the appellant asks the court to reduce the award for future income loss to $353,484, the amount that the respondents’ economic loss expert calculated as future income loss for Mr. Henry from the ages 58 to 64.
[70] As stated earlier, a jury’s verdict is entitled to a high degree of deference on appeal. A verdict should not be set aside if it can be reasonably supported by the evidence. This principle applies to damages awards as well as conclusions on liability.
[71] The jury’s past and future income loss awards are not in conflict, in my view, nor are they unsupported by evidence.
[72] The trial judge correctly instructed the jury that, to award Mr. Henry damages for future income loss, it would have to find a real and substantial risk that he would earn less than he would have, but for the injuries caused by Dr. Zaitlen’s negligence. He told the jury that it would have to decide when Mr. Henry would have retired absent his injuries and when he was now likely to retire, bearing in mind various contingencies. The trial judge summarized the plaintiff’s theory of future income loss, premised on a pre-injury retirement date at age 68 and a finding that Mr. Henry would never be able to return to gainful employment. If the jury fully accepted these factual premises and the respondents’ expert evidence, it could award Mr. Henry $1,258,933 for future income loss. If, on the other hand, the jury found that Mr. Henry could return to work following the trial and that his injuries would not affect his retirement date, it could accept the defence expert’s calculation that his future income loss would be limited to $52,590.
[73] The trial judge also made it clear, however, that the jury was free to reach its own conclusions regarding Mr. Henry’s ability to return to work and how long he would continue to work given his injuries. As a result, the judge instructed the jury that it could award an amount different than the amount suggested by either economic expert: “I want to make clear to you that you are not bound to accept ‘either/or’ the quantifications of future loss of income calculated by Dr. Katz [the respondents’ expert] and Dr. Hyatt [the appellant’s expert]. It is open to you to find a different amount.”
[74] This instruction was not challenged by the appellant either at trial or on this appeal.
[75] Mr. Henry testified that he had trouble working due to bladder and bowel incontinence, a lack of stamina, and pain. Dr. Albert Cheng, a physiatrist and rehabilitation expert retained by the respondents, testified that a person with neurological impairments may age more quickly:
The way I would describe it is all of us as we age are more likely to have more problems physically, whether we have degenerative changes in our hips, knees or our back. But for someone who suffers from significant neurological injuries impairments where there already is in my medical opinion manifestations of secondary areas of pain including his back and hips from what he has to deal with. I’m just concerned that this results in sort of what I call acceleration of normal age-related changes. … So in my clinical experience individuals who suffer from neurologic injuries and impairments will often have a more difficult time as they age because of their underlying conditions.
[76] The respondents’ economic expert, Dr. Katz, produced a chart setting out the present value of Mr. Henry’s “but-for-the-incident” income. It calculated the future income loss on a year-by-year basis from 2020 to 2044, the year that Mr. Henry would turn 68. The jury’s award of $429,786 is the sum of the present-day value of Mr. Henry’s income loss, based on Dr. Katz’ calculations, if he retires at the age of 57.[3]
[77] It was open to the jury to find, based on the evidence with respect to Mr. Henry’s injuries, that he was able to return to work full-time at some point after his surgery but that he would retire early. That is what the jury did. Its future income loss award presupposes that Mr. Henry expected to work until the age of 68 but will now instead retire at the age of 57.
[78] These were findings that the jury could reasonably make. There is nothing inconsistent or improper about them. I would accordingly reject this ground of appeal.
Disposition
[79] I would dismiss the appeal, with all-inclusive costs of $25,000 on the appeal pursuant to the parties’ agreement.
Released: April 5, 2024 “L.B.R.”
“S. Gomery J.A.”
“I agree. L.B. Roberts J.A.”
“I agree. S. Coroza J.A.”
[1] The appellant’s reference to the standard of review of criminal jury verdicts articulated in R. v. Yebes, [1987] 2 S.C.R. 168, and R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C. R. 381was inapt and did not add anything to the well-established civil standard of review set out here.
[2] I have reproduced the answers exactly as written on the jury sheet, including spelling and grammatical errors.
[3] The appellant relies on some handwritten figures on the answer sheet beside the damage award. This marginal note is indecipherable and cannot, in my view, be used to impugn the jury’s actual award.
