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

Last Updated: July 31 2019
Article by Janet Lebeau

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).


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.


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 judgement. This case had nothing to do with an error of judgement so the instruction on this principle had no place in the jury's deliberations.

At trial both parties requested that the trial judge provide instructions in accordance with ter Neuzen v. Korn, [1995] 3 S.C.R. 674 which stands for the proposition that when there is expert evidence that doctors act in "accordance with a recognized and respectable practice of the profession", the doctor will typically not be found negligent, but there is an exception; in some circumstances, the standard practices themselves will be negligent. If the matter can be easily understood by an ordinary person and where the practice is itself "fraught with obvious risks", it is open to the trier of fact to determine the applicable standard of care. The appellants submit that they were entitled to a ter Neuzen charge. In his charge, the trial judge indicated that the jury should be "guided by the medical evidence", which the appellants say effectively removed the ter Neuzen principle from the jury's deliberations.

The Court of Appeal found that the appellant could not succeed with respect to the standard of care charge for the following reasons: i) the expert evidence instruction was correct in law; ii) the jury was not directed to only consider expert evidence; iii) a contextual approach allays any concerns about the impugned instruction; iv) a contextual approach demonstrates that the jury would have understood that it should consider if the standard practice itself was negligent; and v) even if the jury was confused, there was no miscarriage of justice. The Court acknowledged that some of the language in the charge was not ideal, specifically with respect to language suggesting that "medical evidence" and expert evidence were required. However, those concerns were alleviated by the 'contextual analysis referred to above. Specifically, a charge must be considered as a whole and not word-by-word. When considered as a whole, the jury was instructed on the following:

  1. They must consider the charge "as a whole";
  2. They had to take into account "all of the evidence";
  3. They had to bring to bear on their deliberations their individual and collective "common sense and good judgment";
  4. It was up to them to determine the amount of weight to give to the expert opinion evidence and it was open to them to reject the expert evidence; and,
  5. They could consider both the expert and non-expert evidence in determining the standard of care, including that "[t]here is before you Dr. Rudner's and Dr. Gilmour's expert opinions in this regard as well as all of the other evidence that you have before you."

The standard of review for jury charges does not hold them to a standard of perfection, rather asks whether the words have conveyed to the jury the correct legal test to apply and whether the jury would have understood the law. The Court also pointed out that with respect to Dr. Lottering the appellants did lead expert evidence to suggest he did not meet the standard of care. Clearly, the jury did not accept this opinion. This expert opinion encompassed what the appellants suggest was the 'common sense position'.

With respect to the appellant's concern that the jury was instructed on the law of 'error judgement' in a case they suggest deals with only administrative management of patients, the court disagreed. The Court held that it would be open to the jury to conclude that Dr. Lottering exercised his judgment and medical experience with respect to the CT report and his determination that it was not urgent.

The Court held that trial judges are properly granted a wide berth in determining how best to structure their jury charges: R. v. Speers, 2017 ONCA 333. The ultimate question was whether the issue had been accurately conveyed to the jury and read contextually and the Court was satisfied that the jury understood their task in this case.

If you have been injured, contact a Personal Injury Lawyer

At Gluckstein, we work with a variety of clients who have suffered from the consequences of medical negligence and malpractice. This can be an emotional time as the victim and their loved ones pursue rehabilitation and healing following the incident. Medical malpractice cases and complex, and require a significant amount of skill and experience when representing a client respectfully to secure the compensation they rightly deserve. If you or a loved one believe you are to be the victim of medical malpractice, contact a personal injury lawyer for a free consultation. You deserve compensation for your unjust suffering.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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