Medical Malpractice & Personal Injury Blog

Complexity vs Difficulty of Proof

Jun 22

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6/22/2015 8:21 AM  RssIcon

In medical malpractice, the evidence from specialized medical fields can be voluminous and complex. At what point does the case become too complex for a jury? This was the issue addressed by the Nova Scotia Court of Appeal in Anderson v Cyr, 2014 NSCA 51.


Every citizen has the longstanding, substantial right to a civil jury trial in Nova Scotia, and the decision on whether to have your case heard before a jury or by a judge alone is an important one made after a careful analysis of the circumstances. However, in some cases, that right may be denied.

The parties in Anderson were involved in a motor vehicle accident that resulted in the plaintiff’s multiple and complex medical conditions. There were more than 50 expert reports of interrelated and conflicting diagnoses of a highly technical nature. The motions judge held that the scientific and technical medical opinions would require a careful and reflective study, which, on top of the lengthy trial and complicated legal issues of causation and damages, would not be possible for a jury. Therefore, the case would be better heard by a judge sitting alone, who could take the necessary time to analyse everything in detail.

On appeal, Justice Farrar determined that the legal issues were not complex and the difficulty was in proving causation, which was a purely factual issue. The motions judge had made an error of law in weighing legal complexity in the decision to strike the jury notice. Justice Farrar then reviewed and clarified the existing law on striking a jury notice.

A jury is a trier of fact, and a judge determines questions of law. If your case involves mainly questions of law, or questions of law that are inseparable from the questions of fact, then a judge alone trial may be more suitable, and the jury notice may be struck. However, only rarely will your right to a jury be denied over issues of factual complexity.

The length of the trial is not a sufficient reason to strike a jury notice, unless it is functionally unworkable, such as in an 8-month long trial. Many jurors would not be able to handle such a long trial due to family and financial concerns, along with potential illness and death.

Furthermore, time constraints (if indeed there are any) on a jury are not a sufficient reason to strike a jury notice. Time constraints may “inform the complexity analysis”, but it is “paternalistic … to … suggest that juries are less capable than judges” in dealing with complex evidence.

Justice Farrar reinstated the jury notice and concluded that “complexity should not be confused with difficulty of proof”. Lengthy and conflicting scientific evidence may make it difficult to prove that particular injuries were caused by the accident, but that does not mean the legal issue of causation is complex.

If you believe that you have received improper or negligent medical treatment, contact of the members of the Patterson Law Medical Malpractice Team for advice. Please note that this article is meant to provide information only and is not intended to confer legal advice or opinion. If you have any further questions please consult a lawyer. Please note as well that many of the statements are general principles which may vary on a case by case basis.