Personal Injury News

Fatally Flawed Medical Malpractice Award Overturned on Appeal


The B.C. Women’s Hospital and one of it’s nurses successfully appealed this $1.7 million personal injury award in which they were found to have negligently injured a patient ( 2015 BCSC 1941 ).

The trial judge found the Nurse to have breached her duty of care owed to the patient, when placing the claimant’s left foot on a birthing bar. The patient was under the influence of an epidural anaesthetic and unable to control her legs and the Nurse allowed the claimant’s leg to drop. That was found to have torn the labrum of the patient’s left hip and damaged the surrounding extra-articular soft tissues. The trial judge also found that injury to have caused pre‑existing early degenerative changes to the patient’s acetabulum, associated with a congenital condition, to become symptomatic. ( Click here to review Nelson v. British Columbia (Provincial Health Services Authority,2017 BCCA 46).

 In order to succeed on an appeal of a finding of fact an appellant must establish that the judge made a manifest error, ignored conclusive or relevant evidence, misunderstood the evidence, or drew erroneous conclusions from it.

Where a principal issue on a trial is credibility [or I would say, reliability] of witnesses to the extent that the evidence of one party is accepted to the virtual exclusion of the evidence of the other, it is essential that the findings be based on a correct version of the actual evidence. Wrong findings on what the evidence is destroy the basis of findings of credibility [or reliability].( Bennett J.A. in Tambosso v. Holmes, 2016 BCCA 373)

The Court of Appeal found the conclusion drawn by the trial judge from the testimony of Dr. Gilbart was undermined by a manifest error and was fatally flawed.

The Court of Appeal found that the drawing of appropriate inferences from all of the evidence is not the function of the Court of Appeal and ordered a new trial.

Review our short video below to learn more about how the court decides medical malpractice cases in BC:

Tags: Findings of Fact, Legal Causation, Medical Malpractice, Negligence, New Civil Court Rules, Rules of Evidence

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"Renn A. Holness is a gifted lawyer and author to over 1000 legal blog articles. Married father of two daughters, son of a neurosurgeon and founder of Holness Law Group."

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