Gluckstein Lawyers’ Supreme Court Win Benefits Client, Medical Malpractice Profession

Photo of Supreme Court of Canada justices listen to a case

Written By: Jan Marin, Personal Injury Lawyer

Gluckstein Lawyers is pleased to report a significant medical malpractice victory in the Supreme Court of Canada on January 18, 2021, following 10 years of representation and court battles. Not only does this win mean a brighter future for our client, but it sets an important precedent for every person who has been injured or may be injured by medical negligence. Our client, Karen Armstrong, sued her surgeon following an operation that resulted in injury to her left ureter that damaged her left kidney and led to its removal. At trial, Gluckstein Lawyers was successful and obtained a substantial judgment against Dr. Ward. Dr. Ward appealed the trial decision. A three-judge panel of the Ontario Court of Appeal heard the case. A majority of that court, two judges to one, allowed the appeal and dismissed Ms. Armstrong’s case. In allowing Dr. Ward’s appeal, we felt that the Ontario Court of Appeal had not only erred in allowing the appeal but had articulated reasons for allowing the appeal that could have created significant obstacles to proof of claims for other victims of medical malpractice.

Victory reaffirmed

In granting our appeal, and reaffirming Ms. Armstrong’s victory at trial, the Supreme Court of Canada unanimously adopted the perfectly articulated reasons of the dissenting judge in the Ontario Court of Appeal – Madam Justice van Rensburg. Victims of medical negligence face significant hurdles in proving their cases – both on standard of care and causation. Had the majority opinion of the Ontario Court of Appeal prevailed, that bar would have been even raised even higher. Many meritorious medical malpractice claims may have faced insurmountable obstacles in proving liability. The road to success has not been easy. It has been a roller-coaster for me, my co-counsel Ryan Breedon, and of course, our client Ms. Armstrong. This case has demonstrated to me the importance of our senior jurists having the courage to write dissenting opinions in the face of disagreement.

Notable findings

Of the many important findings of Madam Justice van Rensburg, two are most notable. She recognizes that in many medical malpractice cases, determining “what happened,” causation, is necessary in order to properly identify and address the standard of care issues. Second, the decision reinforces previous jurisprudence that the plaintiff in a medical malpractice case is not required to disprove every possible theory that might be advanced by the defendant, and surely is not required to address theories that were not advanced in the evidence at trial. If advancing an alternative theory of causation, the defendant must support that theory with evidence presented at the trial. Achieving justice for Ms. Armstrong has been a long and hard-fought battle – but a rewarding one for our client and for medical malpractice law more broadly. As lawyers, we need to be willing to fight these battles. I'm fortunate to work with a firm that is willing to support our clients to go to whatever lengths necessary in order to obtain justice. Taking a case all the way to the Supreme Court requires a significant commitment of time, energy and funds. Credit is also due in large measure to the advocacy skills of Ryan Breedon.

Justice was done

Not to be understated is the person behind the case. I have known Ms. Armstrong for 10 years. It is easy to see the legal and professional import of a Supreme Court decision, but we cannot lose sight of the person behind the claim. Calling her to tell her the news was the best feeling. Justice was done. Medical malpractice can be a challenging area of law. It’s complex, it’s expensive and counsel for the defendants are skilled and experienced. It is vital to have lawyers who understand the medicine, have the resources to level the playing field, and importantly, are willing to see the case through, all the way to the Supreme Court, if necessary. Here at Gluckstein Lawyers we are incredibly proud of the decision in Armstrong v. Ward. We served our client and the law. It doesn’t get any better than that.


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