Date: 19970627 Docket: 96/1561 Registry: Victoria IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: BARBARA NOVAK and ANTON NOVAK PLAINTIFFS AND: DONALD BOND DEFENDANT REASONS FOR DECISION OF MASTER McCALLUM (in Chambers) Counsel for the Plaintiffs: John Finlay Counsel for the Defendant: M. Lynn McBride Place and Date of Hearing: Victoria, B.C. June 19, 1997 1 INTRODUCTION [1] These reasons follow the hearing of an application by the Defendant for an order that the trial of the proceeding be heard by the court without a jury pursuant to Rule 39(27). The proceeding is a medical malpractice action relating to medical treatment in 1989 and 1990. 2 ISSUES [2] The Defendant's position is that the action ought to be tried by the court without a jury because a scientific investigation will be required which cannot be made conveniently with a jury and that the issues involved are of an intricate and complex character. [3] The Plaintiffs elected trial by jury and wish to proceed in that fashion. While acknowledging that there are scientific considerations or aspects to the case, they assert that the scientific investigation can be made conveniently with the jury and that the issues are not so intricate and complex as to make a trial by the court with a jury inappropriate. 3 FACTS [4] The facts of the matter so far as they pertain to the resolution of this application are not seriously in dispute. I repeat them here from the Defendant's Chambers Brief: 1. Dr. Bond is a general practitioner with a private family practice in Prince George, British Columbia. He first saw the Plaintiff Barbara Novak ("Ms. Novak") as a patient in September 1987. 2. The Plaintiff Anton Novak ("Mr. Novak") is Ms. Novak's husband. 3. In this action, the Novaks claim general and special damages from Dr. Bond for alleged negligence and breach of contract in providing medical treatment and services to Ms. Novak during 1989 and 1990. They allege that Dr. Bond's negligence and breach of contract resulted in a delayed diagnosis of breast cancer. 4. A summary of the facts alleged by the Novaks is set out in paragraph 5(a) through 5(k) of Mr. Hinkson's affidavit. There are disputes between the parties about a number of these factual allegations. 5. The particulars of negligence and breach of contract alleged against Dr. Bond are set out in paragraphs 6(a) through 6(h) of Mr. Hinkson's affidavit. 6. Dr. Bond denies that he was negligent or in breach of contract in treating Ms. Novak, and also says that an earlier diagnosis would not have changed the outcome because of the very aggressive type of cancer that Ms. Novak had. Dr. Bond also relies on a limitation defence pursuant to the Limitation Act, and asserts that this action is barred by the expiry of the applicable two year limitation period under s.3(1)(a). The Novaks have not filed a Reply, but their counsel has advised that they will argue that time did not start to run under the Limitation Act until the recurrence of cancer in 1995, and that the action is, accordingly, not statute barred. 7. The Novaks allege that, as a result of the negligence and breach of contract of Dr. Bond, Ms. Novak has suffered a recurrence of cancer. 8. Details concerning the nature and type of damages claimed by the Plaintiffs are set out in paragraphs 7 through 9 of Mr. Hinkson's affidavit. 9. Liability, causation and damages are all very much in issue in this action, and the trial is scheduled for five days commencing September 15, 1997 in Prince George. [5] There is a dispute between the parties as to what the Plaintiff, Barbara Novak, told the Defendant during the course of his treatment of her. She alleges that she complained often of facts which ought to have alerted the Defendant to her true condition. The Defendant has no recollection of those conversations and his notes made no reference to them. Resolution of that issue will involve an assessment of the credibility of Ms. Novak and Dr. Bond. [6] There will be a variety of expert witnesses called to testify. Expert opinion evidence will be given concerning the standard of care expected of the Defendant. Expert evidence will be given concerning the particular type of cancer suffered by Ms. Novak and its treatment. [7] For the purposes of these reasons, I accept the assessment of the issues and factual disputes offered by Mr. Hinkson on behalf of the Defendant in his affidavit sworn June 12, 1997. At paragraphs 18 and 19, he said: "18. Based on my review of the defendant's expert reports (Exhibits A through C), the clinical records produced in this action, and the transcripts of the examinations for discovery, I anticipate that the trier of fact will have to learn and understand the meaning and significance of a number of different medical terms and concepts, including the following: (a) mammary dysplasia; (b) high grade inflammatory carcinoma, which can be either pathological or clinically inflammatory; (c) invasive as opposed to non-invasive carcinoma; (d) ductal as opposed to lobular carcinoma; (e) host inflammatory response; (f) different categories of cancer and different grades of tumours; (g) tumour emboli; (h) apocrine metaplasia; (i) mitotic rate; (j) microcalcifications; and (k) invasive tumour margin. 19. Based on the allegations in the pleadings, the documentary and viva voce evidence discovered to date, and other information which has been revealed and obtained during the course of this proceeding, I anticipate that the following legal and factual issues will arise at the trial of this action and will have to be considered and resolved by the trier of fact: (a) What is the applicable standard of care of a general practitioner in assessing, examining and treating a patient such as Ms. Novak, and did Dr. Bond meet that standard of care during 1989 and 1990? I expect that the trier of fact will have to consider conflicting expert testimony from general practitioners concerning the approved standard of practice in specific and varying factual contexts, and that the factual assumptions upon which the experts' opinions are based will have to be compared and contrasted with the factual findings made by the trier of fact concerning the clinical appearance and reported condition of the left breast at different times. In addition, I anticipate that the trier of fact will have to consider expert evidence from specialists in pathology and oncology concerning the meaning and significance of different characteristics and symptoms of mammary dysplasia and breast cancer. (b) Did Dr. Bond owe an independent duty of care to Mr. Novak, who was not his patient, to take reasonable care in treating Mr. Novak's wife? (b) If the trier of fact finds that Dr. Bond failed to meet the applicable standard of care, the trier of fact will then have to determine whether an earlier diagnosis would, on the balance of probabilities, have changed the outcome. In particular, the trier of fact will have to determine whether the recurrence of cancer would have happened even if there had been an earlier diagnosis. Determination of this issue will require consideration and understanding of highly technical medical evidence concerning different types and grades of cancer, and the weighing of statistics and probabilities concerning growth rates and recurrence rates. (d) If the trier of fact concludes that the recurrence of cancer would not have happened or would have been less extensive if there had been earlier diagnosis, the trier of fact will then have to determine how much of the past and future damages of the plaintiffs are attributable to the delay in diagnosis, as opposed to being attributable to the pre- existing breast cancer. Determination of these issues will require a details analysis of the various injuries and damages, and an allocation of those injuries and damages to one cause (the delay in diagnosis) or another (the pre-existing cancer and its inevitable treatment and sequelae). (e) Did Ms. Novak fail to mitigate her damages by failing to take all reasonable steps to minimize or avoid losses and expenses? (f) Was Ms. Novak contributorily negligent in failing to take appropriate steps, such as seeking timely medical attention, when she knew or ought to have known that the quality of pain and tenderness and the nature of the wedge- shaped area of her left breast had dramatically changed between July 13, 1990 (when she saw Dr. Bond) and October 1, 1990 (when she next saw Dr. Bond)?" [8] There are other issues in addition to those to be resolved including the question of special damages and Ms. Novak's life expectancy. 4 DISCUSSION [9] The Plaintiffs have a right to have their action heard by the court with a jury. The onus is upon the Defendant to show that the case comes within the provisions of Rule 39(27) in order to invoke the court's discretion to order the trial heard by a court without a jury. [10] I have referred to the Defendant's view of the issues which will have to be resolved. It was the Defendant's position that the scientific investigation required and the intricate and complex nature of the issues require a trial without a jury. The Defendant relies upon the decision of Huddart, J. in Scott v Davies. In her reasons for decision, Her Ladyship put the task for the court on a similar application in these terms: " I have now read the evidence and authorities provided by counsel on the defendants' application for an order that this trial proceed with a judge without a jury. With regret I have reached the conclusion that I must grant the application. After reviewing the pleadings and the evidence and listening to Mr. Pierce's attempt to make the issues seem straightforward, I tried to imagine the task of the judge who will have to instruct the jury and the twelve jurors who will have to read 19 reports of treating physicians, read the reports of and listen to the evidence of six medical practitioners who have reviewed those reports and the records underlying them, as well as listen to the evidence of the parties and several witnesses with regard to damages over eight or nine days, then decide the issues that the trial judge must put to them." [11] Her Ladyship concluded that a jury was inappropriate in Scott in the following terms: " There is simply no way that even the best instructed jury could fairly analyze the evidence, find the basic facts, consider the medical opinions, draw the appropriate inferences, and reach conclusions on all of these issues within a reasonable period of time without derogating from their duty to the parties. A trial judge has the significant advantage of being familiar with the law from the outset and thus being able to organize the listening and the note-taking that will be an essential part of any fact-finder's task in this trial. This is a case that calls out for careful analysis and thoughtful consideration without the stress inherent in time limitations that jurors' everyday lives will impose on the most dedicated among them. So, while I am persuaded that a jury could understand the evidence as it is being given, and could retain that understanding throughout a two-week trial on any given issue, I am not persuaded that a jury could manage the analysis and decision-making process this action would demand of them. The case as a whole is simply too complex to be handled by a jury." [12] The Defendant also relies upon the decision of McEachern, C.J.S.C. (as he then was), in Wipfli v. Britten. His Lordship concluded on that application that a scientific investigation was involved in that trial which also involved the issue of medical malpractice. In deciding whether that scientific investigation could be conveniently be made by a jury, he observed: " Convenience, in the sense in which that word is used in the rule, does not depend solely upon whether or not the jury can be made to understand the evidence. I accept the evidence of Drs. Riddell and Henniger, whose useful evidence on their cross- examinations satisfies me that they can probably make an understandable description of the actual surgical procedures and they can explain the present condition of the infant plaintiff. But that is not the point. What is required before it is convenient to have a scientific investigation made with a jury is the ability to have a proper trial, which includes not just an understanding of the evidence as it is being given, but also an ability to retain this understanding throughout a long trial in a form which permits an analysis of the evidence in relation to the difficult questions which must be decided at the end of the case." [13] McEachern, C.J.S.C., after discussing the particular aspects of the case before him referred to his decision in Mewhort v Frimerat page 348 of Wipfli: "As I said in Mewhort [at p.61]: ...convenience in the context of this Rule does not refer to physical or personal convenience. Rather, it relates to the proper conduct of the trial, including an understanding of the issues and evidence, the submissions of counsel, and the judge's charge." [14] In the case at bar, I have no hesitation in concluding that a scientific investigation will be involved. As pointed out earlier, a jury will have to comprehend the meaning and significance of medical terms and concepts relating to mammary dysplasia and breast cancer, types and grades of cancer, and growth and recurrence rates of cancer. The jury will have to consider those issues in the context of the legal issues including the question of causation and delay in diagnosis. [15] The second aspect of the test upon which the Defendant relies is whether the issues are of an intricate or complex character. [16] The issues to be decided involve those turning upon the scientific evidence which have been earlier described as well as the legal issues relating to the applicable standard of care of a general practitioner, the duty of care owed to the patient's husband, and the assessment of damages including a possible issue of contributory negligence. The authorities to which I was referred, including those I have already mentioned, were summarized by Master Patterson in Daly v Hildebrandt: "16. Applying the tests that are enunciated in Wipfli and in Scott v. Davies et al., as I understand them, it is my view that the jury properly instructed could deal with a number of the issues in this case individually and perhaps several together. They would not, however, be able to deliver the reasoned, logical response on the many issues that all the parties to this action require. As Madam Justice Huddart writes, this case also requires careful analysis and thoughtful consideration with the pressures of time inherent in the jury process." [17] This case can be distinguished from many of the authorities to which I was referred involving as it does one Defendant and no resulting apportionment of damages between parties. There was no surgery in this case and the issue involves a delay in diagnosis, there being no contest as to the final diagnosis or the resulting treatment. The matter is set for a five day trial only. The Plaintiffs are making no damage claims for the cost of future care, loss of future earning opportunity or the cost of past services. The heads of damages sought are general non-pecuniary damages, special damages, and damages for loss of expectation of life. The special damage claim is a significant one involving some $475,000 Canadian but is all related to the cost of treatment obtained by Ms. Novak between the first diagnosis of breast cancer and the recurrence of cancer in 1995. 5 CONCLUSION [18] The Defendant has not met the significant onus on him to justify an order that the trial of the action be heard by the court without a jury. I accept there are issues which will involve scientific investigation and that the issues can be made to appear intricate and complex. Similarly, the issues can be framed in a way by counsel and through the trial judge's charge so that a jury can competently and effectively deal with them within the limits imposed by a jury trial. [19] Counsel for the Plaintiffs framed, in a hypothetical way, questions for the jury during his submissions. The questions will involve the jury in determining various issues involving science and medicine but they are neither intricate nor complex issues. [20] The jury will be required to determine whether the Defendant was negligent given the evidence on various issues. If the jury concludes the Defendant was negligent, they will have to decide whether his negligence caused the damage alleged by the Plaintiffs. There are competing theories about causation but they are easily defined and the jury can decide whether the recurring cancer would have recurred in any event. [21] I am satisfied that a jury will be able to bring to this case the thoughtful, reasoned response the case demands. The Defendant's motion is dismissed. Costs to the Plaintiffs as costs in the cause. "MASTER McCALLUM"