Date: 19980428 Docket: C937086 Registry: VANCOUVER IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: XIMENA JESSICA NICOLE RENAERTS, By Her Guardian Ad Litem, MARGARET RENAERTS and MARGARET RENAERTS PLAINTIFFS AND: DR. GERALD KORN, DR. KAMAL JAROUDI, DR. EWA WOJTOWSKA, DR. EDWARD VICTOR WELSH, NURSE V. WOOD, NURSE JOYCE HATHERALL, NURSE GWEN FARRELL, NURSE MARY CAMERON-LANE, TECHNOLOGIST "ESTAKA", VANCOUVER HOSPITAL AND HEALTH SCIENCES CENTRE FORMERLY KNOWN AS VANCOUVER GENERAL HOSPITAL, NADINE BOURNE, J.R. RILEY, THE PUBLIC TRUSTEE OF THE PROVINCE OF BRITISH COLUMBIA, THE SUPERINTENDENT OF FAMILY AND CHILD SERVICES OF THE PROVINCE OF BRITISH COLUMBIA and HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA DEFENDANTS AND: VANCOUVER GENERAL HOSPITAL, NURSE VERA WOOD, NURSE JOYCE HATHERALL, NURSE GWEN FARRELL, NURSE MARY CAMERON-LANE, DR. KAMAL JAROUDI THIRD PARTIES REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE McEWAN Counsel for the PlaintiffS: Thomas R. Berger, Q.C. Ms. Erin F. Berger Charles Lugosi Counsel for the Defendants, Dr. Korn and Dr. Welsh: Ms. Lynn McBride Counsel for the Defendant Nurses, Hospital and Third Parties: Don J. Holubitsky Place and Date of Hearing: VANCOUVER, B.C. APRIL 20, 1998 [1] The defendants apply for an order that the trial of this matter be heard without a jury pursuant to Rule 39(27) on the grounds that: (i) the issues in this case require prolonged examination of documents and a scientific investigation which cannot be made conveniently with a jury; and (ii) the issues are of an intricate and complex character. [2] The plaintiffs are entitled to have their case tried by a jury as a matter of right unless the defendants can persuade the court that its discretion ought to be exercised under Rule 39(27). [3] The facts of the case, in outline, are that on the evening of December 16, 1985, the defendant Nadine Bourne, then 22 years of age, attended the Emergency ward at the Vancouver General Hospital. She was feverish and had a high temperature and a rapid pulse. She gave a history of having had an abortion in Bellingham, Washington, some three days earlier. [4] After taking these and other details from Ms. Bourne and assessing her, the Emergency room physician called the gyn‘cology resident, the defendant Dr. Jaroudi. He took a history from Ms. Bourne and apparently concluded that she was suffering complications from an incomplete abortion. At some point he says he spoke to the defendant Dr. Korn about Ms. Bourne. She was admitted to the gyn‘cology ward and scheduled for dilation and curettage the next morning to remove whatever remained in her womb. She was medicated. [5] In the early morning hours of December 17, 1985, Ms. Bourne gave birth of a premature female infant estimated to be of a gestational age of 26-29 weeks. At this point, the plaintiffs say nothing was done for the baby for a considerable period of time. They say several of the nurses named as defendants and others were negligent in failing to provide immediate care. [6] Some time later a "Code Blue" was called and attempts were made to resuscitate the baby. The defendant Dr. Welsh was involved at this point. There is an issue about whether he was negligent in failing to prevent heat loss to the baby due to contact with a metal surface on which she had been laid. [7] The child was eventually taken to Children's Hospital. There had been a further delay in transporting her due to a miscommunication for which the plaintiffs say Dr. Jaroudi was responsible. [8] The plaintiffs do not allege that the baby's care after her transfer to Children's Hospital is in issue. [9] The baby born that night is the plaintiff Ximena Renaerts, now 12 years old. She is profoundly disabled physically and severely mentally handicapped. [10] The plaintiffs allege that Ms. Renaerts' present condition is due or largely due to the immediate post-natal treatment she received at the hands of the doctors and nurses named, and of the Vancouver General Hospital. [11] The doctors, nurses and hospital have strongly resisted the plaintiffs' claims. They have asserted that they acted appropriately and in accordance with standard and approved practice in the circumstances. They also suggest that the condition of Ms. Renaerts is due, at least in part, to congenital or pre-admission injuries. [12] In advancing this motion, both counsel for the medical defendants have made detailed submissions outlining the complexities inherent in a trial involving several defendants, numerous experts, and large volumes of records and reports. They suggest that when the four week trial was scheduled there was no discussion of a jury trial. [13] Counsel for the plaintiffs has submitted that in its essence the case is not complicated, and that it is reducible to a series of quite straightforward issues. He submits that a jury trial may be more expeditious than a trial with a judge sitting alone, implying, I think, that four weeks remains a proper estimate of the time the matter should take. [14] The trial is scheduled to proceed on June 1, 1998. [15] In Sadowick v. Doobay (unreported) April 6, 1982, Van. Reg. No. C793714, Esson, J. (as he then was) commented at some length on the nature of applications of this kind. After noting the divergence in the positions taken by counsel, he remarked at pp. 4, 5 of the judgment: In this case I give greater weight to the reports, the pleadings and the inferences reasonably to be drawn from the nature of the case and the nature of the proposed evidence. In drawing such inferences, the court's experience with cases of a similar kind is a factor to be considered. The burden of establishing that the case is not suitable for trial by jury rests upon the party who attacks the jury notice. The elements of difficulty relied upon must be looked at closely to determine whether the difficulty is genuine. As the matter was expressed in one of the earlier reported cases on the question in this court: Of course all these questions are susceptible of being made intricate by one counsel or the other, or one party of the other may call a cloud of expert witnesses and throw an atmosphere of mystery and difficulty about a question. Alaska Packers' Association v. Spencer (1905), 11 B.C.R. 280, 288, per Morrison, J. On the other hand, questions of great intricacy are susceptible of being made to appear simple by counsel and experts who take the other side of the question. [16] In reviewing the material in this case it strikes me that the issue as to whether there was negligence on the part of any of the medical defendants will turn largely on a series of findings of fact as to what actually occurred over a matter of hours on the night of December 16-17, 1985. While the jury may require some guidance respecting some aspects of some of the defendants' involvement, I do not see this matter as either intricate or complex. The documents that bear directly on this aspect of the claim are not numerous and will not involve prolonged investigation. The evidence as to the child's possible condition at birth is not extensive, nor is the expert evidence to be considered in connection with the apportionment of causation and liability. [17] On the issue of damages, there is a mass of detailed evidence including actuarial, medical, rehabilitation and other reports addressing the plaintiff's future needs and the cost of future care together with supporting medical, school and other records. Despite the daunting appearance of all this material, it appears that very little of it will require prolonged examination; there is no dispute that Ximena Renaerts is severely disabled and the issues concerning damages essentially concern the degree of assistance she will need and the duration over which it will be required. These are not matters inherently too complex or intricate for a jury. [18] Notwithstanding that a jury may be able to understand evidence issue by issue, however, an important consideration in applications of this kind is the cumulative complexity of the case. In Sadowick v. Doobay (supra), Mr. Justice Esson addressed this issue as well: . . . in any event, the question is not whether the jury members can understand each piece of evidence as it comes before them. Rather, it is a question whether they can, over a period of days or weeks, retain that understanding and apply it, with all of the evidence adduced on the two sides of the question, to reach a fair and intelligent verdict on the issue. [19] I have considered the leading case of Wipfli v. Britten (1981), 32 B.C.L.R. 343 and the line of cases submitted by counsel for the defendants. I have also given some consideration of Penner v. Hergill (1992), C.P.C. (3d) 99 (B.C.S.C.) where the court found a jury suitable in a case involving significant issues as to causation, costs of future care, and life expectancy; Halldorson v. Westbury Canadian Life el. al. (unreported) May 23, 1996, Victoria Reg.No. 94/4384 (Master), where a jury was found to be appropriate in a case of multiple issues; Victoria v. Gibson (unreported) April 24, 1992, Van. Reg. No. C914528 and McBeth v. Boldt (unreported) December 19, 1995, Van. Reg. No. C941286, both of which were medical malpractice cases in which the court refused to strike a jury notice. [20] I have concluded that notwithstanding the number of defendants and the extent of the material amassed in the preparation of this case, it is not so complex that a jury will not be capable of following the evidence appropriately or of retaining it and deliberating effectively at the end of the trial. [21] The motion is therefore dismissed. Costs will be in the cause. "McEwan, J." __________________ Mr. Justice McEwan