Unnecessary Mastectomy Damages and Rape Shield Laws
How does a jury decide the value of the emotional and physical toll from a medical misdiagnosis? Join us as we explore a poignant case where a woman was mistakenly diagnosed with breast cancer and underwent unnecessary surgery, leading to a $400,000 jury award. We’ll unravel the stringent criteria needed to hold a doctor legally accountable and dissect the often mysterious process by which juries calculate non-pecuniary damages such as pain and suffering. This segment promises to shed light on the profound impact these legal decisions have on both patients and the healthcare system.
Shifting our focus, we then offer a deep dive into a landmark Supreme Court of Canada decision involving the rape shield provision. This case, originating from British Columbia, addresses the complex balance between protecting a sexual assault complainant’s privacy and ensuring a fair trial. Learn why the Supreme Court upheld a trial judge’s decision to exclude questioning about prior consensual sexual activity in a marital case and what this means for the admissibility of evidence in sexual assault trials. We also tackle the nuanced debate over publication bans during appeals, exploring how the courts balance transparency with privacy. Don’t miss this insightful discussion on two pivotal legal issues shaping the judicial landscape.
Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 a.m. It’s also available on Apple Podcasts or wherever you get your podcasts.
Transcript of the show:
Legally Speaking May 30, 2024
Adam Stirling [00:00:00] It’s time for Legally Speaking with Michael Mulligan, Barrister and Solicitor with Mulligan Defence Lawyers. Morning, Michael. How are we doing?
Michael T. Mulligan [00:00:06] Hey. Good morning. I’m doing great. Always good to be here.
Adam Stirling [00:00:08] Some interesting things on the agenda today. I’m reading here a jury award for misdiagnosing breast cancer being reduced on appeal. How does all that work?
Michael T. Mulligan [00:00:19] Well, not well, if you’re the person who went through all of this.
Adam Stirling [00:00:23] Oh, indeed.
Michael T. Mulligan [00:00:24] And so the background of it is this, it was a woman who was diagnosed, with having breast cancer. And as a result of that diagnosis opted to have a full masectomy and after that was done the breast tissue that was removed was examined and it was determined she did not have any signs of cancer. And that’s what led to the lawsuit. Now, the first thing to mention is this, doctors are not infallible, and we don’t require them to be infallible. Not every mistake or error made by a doctor is going to lead to a successful claim for damages.
Adam Stirling [00:01:08] hmm.
Michael T. Mulligan [00:01:08] The the first part of it is that you would need to successfully sue a doctor, you would need to establish, first of all, that they fell below the standard of care of a reasonable doctor in the circumstance, right. So the standard is not perfection. The standard is reasonable, doctor.
Adam Stirling [00:01:24] Yes.
Michael T. Mulligan [00:01:25] And then if the doctor falls below the standard of reasonable doctor, then the next issue is going to be would the person have gone ahead with the procedure, regardless of the mistake. Right. And whether somebody would proceed or not is going to depend, of course, on the circumstances. And there’s going to be, for example, much closer scrutiny as to whether somebody would have gone ahead or not with a completely optional procedure. Right. Some cosmetic surgery or something. If you don’t tell somebody of the risk and they go ahead with that information, you may well conclude that person would not have proceeded had they been told. On the other hand, if something is lifesaving, it may be that a person would choose to proceed, regardless of not being told of all the risks. So that’s sort of the background of it. This case was interesting because it was a jury trial is one of the interesting elements of it.
Adam Stirling [00:02:19] hmm.
Michael T. Mulligan [00:02:19] And what recently came down was an appeal from the jury verdict. And so the case proceeds with a jury trial. And the jury concluded that indeed, in this case, the doctor had breached their standard of care, that the standard of a reasonably prudent doctor.
Adam Stirling [00:02:37] Yes.
Michael T. Mulligan [00:02:38] And furthermore concluded that as a result of that breach the patient in this case made the decision to proceed with this full masectomy, and what the, the essence of that is that the woman what was communicated to her, was that she had an aggressive form of cancer and led to believe that if the cancer was not removed, you know, as soon as possible, it was a matter of life and death. And so on the basis of that, she’s okay, go ahead. Right. And, the evidence at the trial from other doctors who were experts of the area was that that really was not what should have been communicated. Then there was a much lower, there was a lower degree of certainty, and there should have been other things done as part of the surgery rather than proceeding to the complete masectomy without doing more. So that’s what the jury found. And then that led to the issue of damages, which was really the issue, the central issue on this appeal. And this is going to be a theme of the case that we’re talking about today. It’s a theme of things that juries are not told about.
Adam Stirling [00:03:48] hmm.
Michael T. Mulligan [00:03:48] And one of the things so this was a civil jury, of course, not a criminal case. But one of the things this, I think, interesting for people, one of the things that a judge provides, is not allowed to provide instructions to a jury about, and lawyers are not allowed to provide instructions to the jury about, is how much and how they should calculate nonpecuniary damages. So pecuniary damage would be things like, you know, lost wages or you know some, you know, the cost of your medical equipment, things like that. Nonpecuniary damages could be things like pain and suffering. Right. What did you you know what was the impact on your life in terms of, you know this happening to you. And while we can’t solve everything with money. The idea is would be to provide some amount of money and some compensation for this happening. And on that point, with that kind of award juries are given virtually no help.
Adam Stirling [00:04:47] hmm.
Michael T. Mulligan [00:04:47] They are not told. Well, this is the range you might consider, or this is what has happened in other cases. And that comes from a B.C. Court of Appeal decision back in 2002. And the idea there by the majority of the Court of Appeal on that occasion. It’s the law in B.C. is that they didn’t want to fetter the discretion of juries. They wanted juries to bring their common sense and community values and figure out what would be an appropriate reward, you know, award for this, what happened to you? Right. In this case, you know, the masectomy wouldn’t have probably caused a lot of work. Maybe some a lot of it would just be, man, that is terrible and very upsetting and so on that you would go through that kind of surgery unnecessarily. And so in this case, without being told what could be awarded or what the range could be.
Adam Stirling [00:05:33] hmm.
Michael T. Mulligan [00:05:34] The jury awarded the woman $400,000. Now, you know, I must say, when you listen to this, well, it’s a substantial amount of money, but I doubt there are very many people. If you said, look, I’ll pay you, you know, $400,000 to go through this process. Most people what, are you kidding? Right. You know, you look, you compare that to somebody saying, I am going to provide me with a very substantial, I can provide you with a substantial down payment on a home if you undergo this you problably say well, that’s probably not compensation for this, but here’s the context in Canada, and this comes from the Supreme Court of Canada back in 1978, there were a series of cases, three of them, given the name, referred to as the trilogy.
Adam Stirling [00:06:14] hmm.
Michael T. Mulligan [00:06:14] And the Supreme Court of Canada in that trilogy of cases, limited the amount of money somebody could receive in nonpecuniary damages for pain and suffering. And it was just a policy decision. There was a policy decision intended to limit things like the cost of insurance. And the Supreme Court of Canada capped that in 1978 at $100,000. And it’s that was a departure from the general proposition, which in a civil case, if you’re negligent and you cause some harm to somebody, the general proposition will be tryto put the person back in the position they would have been in, but for what you did right. And on the pain and suffering front that would equate to, well, what as far as money can do it, what might be, you know, a reasonable amount to try to put the person back in a position they would have been in and the $100,000 cap in 1978, that would be for somebody who was the most possibly injured person. So it’d be somebody who was, you know, became a quadriplegic, for example, as a result of an accident. That was the cap. And that’s an important thing to keep in mind when we talk about sort of aren’t people getting giant amounts of money for pain and suffering. Not in Canada. That amount was increased for inflation over time, and it’s now a bit over $400,000. But that’s it. That’s the most. And everything is to be scaled down from there. And so it’s not like in Canada, people were for, you know, the car accident context in British Columbia getting enormous out of control payouts for pain and suffering. If you’re if you had the most catastrophic of injuries impacting you for the longest period of time forever, that’s all you’re entitled to.
Adam Stirling [00:07:54] hmm.
Michael T. Mulligan [00:07:55] That’s the most. And so in that context, the Court of Appeal, while they pointed out that jury verdicts with respect to, nonpecuniary damages are entitled to deference and more deference even than when a judge, determines that, that the Court of Appeal will interfere with awards of that kind. If the Court of Appeal finds that, you know, those are just completely inappropriate right. Now, what is completely inappropriate in terms of, the language is slightly different, than that the language they use is wholly disproportionate or shockingly unreasonable. Now, I must say, if somebody said to me, okay, you the jury has found the doctor was negligent, caused you to have a mastectomy, the removal of, your breasts. I’m not sure that I would find it to be wholly disproportionate or shockingly unreasonable that the person received that amount of compensation, but I suppose reasonable people could disagree. And the Court of Appeal disagrees with my assessment of that. And so they found that that award was, that, wholly disproportionate and shockingly unreasonable. And the context they used to assess that is that trilogy, which is still the law. And so the Supreme Court of Canada or the Court of Appeal said, well, you know, the the maximum you could possibly get for the most extraordinary sort of impact on somebody’s life is $400,000, roughly. That’s roughly the inflation-adjusted value of $100,000 from, you know, 1978. And so, because that, we’ve adopted in Canada is the absolute ceiling, it reduced the award, for this woman to $250,000.
Adam Stirling [00:09:39] hmm.
Michael T. Mulligan [00:09:39] And so that’s what she’ll receive as a result of this jury verdict. The other interesting context, of course, for all of this right in BC, is, you know, a topic that’s been getting some, lots of discussion lately. It may be an election issue is no fault.
Adam Stirling [00:09:55] Yes.
Michael T. Mulligan [00:09:55] So with ICBC, no fault, the amount is not the maximum amount. I’ll just not, you know, for the most catastrophically injured person for $400,000. It’s zero. And that’s one of the things which about no fault. I think many people look at it just doesn’t sound right. You know, when you have somebody whose life is completely changed, to say, well, we’re going to give you a, portion of what your salary would have been and, you know, crutches, wheelchairs and so on. You know, I don’t think that that’s really in accordance with what most people would think is fair and reasonable. And one of the things about the law is that generally, this is why they, you know, that whole concept of let’s give juries lots of discretion, came into play. What is the community standard? That’s kind of why we have juries. That’s an important part of why we have juries. Well, let’s get some, you know, disinterested people from the community and help them sort out what would be fair here.
Adam Stirling [00:10:53] Yeah.
Michael T. Mulligan [00:10:54] And so that’s been eliminated completely. The other thing to be said about all of this, in terms of not telling juries what they can do, just leaving them to do whatever they think is appropriate, not letting lawyers say anything about it or judges anything about it, is what happens in practice is one of two things. Either a jury awards somebody a very low amount of money, which is then defended as well, I guess they didn’t think they were that hurt or didn’t think it was a big deal. But if they give the person a larger amount of money, then there’s an appeal, like in this case, and what gets pointed to is the Supreme Court of Canada case that limits it and said, while that could be the most then. And I guess we better reduce that. And so, well, there’s lip service too, you know, giving discretion to juries and letting them make decisions without interfering with that and so on. When they came up with the amount of money that winds up getting is inconsistent with what the judiciary has determined, should be a cap for policy reasons. It just gets reduced on appeal. And so that’s the outcome for this woman. That’s the amount that she will receive. Interestingly, that gets paid for by the Canadian Medical Protective Association. That’s a doctors captive insurance company.
Adam Stirling [00:12:11] Yeah.
Michael T. Mulligan [00:12:11] And the other thing to know about that is that in British Columbia, by fits and starts, what’s happened is the provincial government pays all of the insurance fees for doctors.
Adam Stirling [00:12:22] hmm.
Michael T. Mulligan [00:12:22] And so there’s no longer any particular financial disincentive for doctors if they are negligent. I mean, there may be some professional repercussions, but unlike other insurance products, you know, if somebody has a high rate of claims, if you’re constantly fouling up, your insurance rates go up. And so one of the that produce is, of course, an incentive to don’t screw up, you know, maybe go to that extra remedial course or whatever.
Adam Stirling [00:12:48] Yes.
Michael T. Mulligan [00:12:48] But for policy reasons of B.C., we now, with the public pay all of the insurance costs for doctors. And that includes the cost of litigating these things. And so as a result of that, despite what happened to this woman and the major impact it had on her, what is going to happen is that, the public will effectively pay her $250,000 as a result of what the jury found to be negligence on the part of her doctor, causing her to opt to have complete masectomy to remove her right breast. And so that’s the state of affairs. That’s what juries aren’t told. And that’s what happened in this case. And it’s got important bearings for people to think about. Those other things, like, should there be that cap, and is it appropriate now that as a result of no fault or all of that is gone altogether?
Adam Stirling [00:13:38] hmm.
Michael T. Mulligan [00:13:38] So that’s the that’s the recent case jury verdict and what the Court of Appeal did with it.
Adam Stirling [00:13:42] Very interesting. Legally speaking, will continue right after this.
[00:13:46] COMMERCIAL.
Michael T. Mulligan [00:13:46] LEgally speaking continues on CFAX 1070 Michael Mulligan for Mulligan defence lawyers up next, not permitted Cross examination. This is obviously about a sensitive issue as well. Set this up for us.
Michael T. Mulligan [00:14:00] It is it’s a case out of BC and it’s a decision from the Supreme Court of Canada, and it’s decision that just came out. And it’s a very interesting fact pattern. And it addresses how a section of the Criminal Code that sometimes referred to as a rape shield provision should be applied. And the way that works through this particular part of that works is that the presumption in a sexual assault, criminal case, is that a complainant couldn’t be cross-examined about, prior consensual sexual activity, to establish either that it’s more likely the person consented to what is the subject matter of the charge, or that they are less worthy of belief. Those are referred to as twin myth reasoning. And on the face of it, in most cases that would make sense. The fact that somebody might be promiscuous or might have engaged in other consensual activity really has nothing to do with, well, what happened on this occasion, right. They’re sort of separate things.
Adam Stirling [00:15:00] Yes.
Michael T. Mulligan [00:15:00] And certainly does it mean that the person is not somebody who should be believed. That again, doesn’t make any sense. So that’s why we have that section and there is provision. The way it works is that an accused person or even a lawyer would need to ask permission from a judge to be allowed to ask about those things and to show why they could be relevant for other purposes. Because, of course, there are circumstances where prior activity might be relevant for reasons other than those two that I just mentioned. And so this was an interesting fact pattern, in that, it was a case involving an allegation made by a wife against her husband, of sexual assault. And the reason that that, that, general those general provisions were particularly interesting here is that her version of events at the trial, was that the marriage had broken down a couple of months prior to the date of the allegation. And she claimed the marriage had broken down completely. And that her husband was staying in the basement. And that she was just assaulted one morning sexually. That was the basis of it. The trouble is that she had, when she spoke to the police initially told them that, in fact, the evening before they had engaged in consensual activity.
Adam Stirling [00:16:24] hmm.
Michael T. Mulligan [00:16:24] On the basis that he asked nicely. That was her evidence. That was her statement to the police. And so the man’s lawyer wanted to ask her about that, to suggest that her story about the relationship having completely broken down was false. And that’s inconsistent with what she told the police. The judge at trial, that application was made before the trial said no. And so the man’s lawyer was not allowed to ask about it. The lawyer asked again at the trial, after the woman testified about her claim, about what happened here, about the relationship being completely broken down. And again, he was told the lawyer was told no. The man was then convicted. There was an appeal to the B.C. Court of Appeal, and the judges of the Court of Appeal split. It was three judges, and they split 2 to 1. One of the judges said no, the judge was wrong in this, evidence was not being led to show the person was more likely to be, you know, consented or less worthy of belief. The lawyer wanted to ask questions to show that the woman’s evidence about the nature of the relationship was false, at least inconsistent with what she had told the police at the time. Now, when there’s a split like that in the Court of Appeal, that judge was in the minority.
Adam Stirling [00:17:37] hmm.
Michael T. Mulligan [00:17:37] That a person has a has a right to appeal to the Supreme Court of Canada.
Adam Stirling [00:17:40] yes.
Michael T. Mulligan [00:17:40] And so that’s where the case went. The man’s appeal was again unsuccessful. And a split decision from the Supreme Court of Canada finding, the majority there, 7-2 found that the judge was correct in not allowing, the wife to be asked about the previous consensual activity. And so the conviction was upheld. Which is, I think, an interesting thing for many people to know, that when trials like of this sort take place, what a jury is being told is often a subset of what, in fact went on trying to avoid, inappropriate reasoning. But it does lead to sometimes when you look at it, sort of a decision about this being made on a fact pattern that is clearly not the whole picture as to what was going on, over that period of time. The other thing which is interesting about this case is that there’s a when there’s an application made as there was in this case to allow defence counsel to ask about prior sexual activity. There is a mandatory section of the Criminal Code that requires a judge to ban publication of the hearing about that. And there was such a publication ban in this case. And so then when the case went to appeal, the Court of Appeal held the whole hearing in secret so the public couldn’t know about it. And then it banned publication of information about what happened. And then that was renewed at the Supreme Court of Canada. One of the issues was, should there be the Crown asked for again a complete ban on publication so that there could be no information about the other sexual activity? The Supreme Court of Canada found that that section that deals with mandatory bans on publication does not apply to appeals.
Adam Stirling [00:19:28] hmm.
Michael T. Mulligan [00:19:29] And instead, the Court of Appeal and the Supreme Court of Canada have their own jurisdiction to restrict what could be published, if that’s necessary. And so they found here that it was not necessary to completely ban all of it, that the appeal, really for one, should not have been conducted in secret. And instead it was sufficient to ban publication of details of the sexual activity the evening before, in accordance with what the wifetold the police. And so there is a ban on publication of the nature of that sexual activity. But otherwise, this could be reported upon, and people can know, about the decision and read the decision and find out what’s going on in the, you know, Court of Appeal in Supreme Court of Canada. That certainly, to my mind, is appropriate. We do not want to have and there’s a strong presumption against secret hearings, particularly on important topics like this that people should be aware of, because there’s no doubt there’s going to be probably some head scratching about what is the appropriate balance to be struck here. Clearly, the judges don’t all agree about it. Both the Court of Appeal and in the Supreme Court of Canada, there was division about, you know, is it appropriate; to prohibit, questions being asked about that activity. And here the reason, at least when I read it, didn’t appear to be to suggest the persons because of the sexual activity less worthy of belief. The stated reason was to show that the narrative about it was not consistent with what the complainant told the police. But because of that section in the ruling, nothing could be asked about it. And so it’s just like that example of with the jury is not being told about, you know, how much how should you figure out the award for pain and suffering on pecuniary damages. The judge telling them nothing, you know, the lawyers telling them nothing. It’s another example of, you know, we’ve made this decision, to limit the information that can be provided, to a jury in a criminal case and you know, reasonable people clearly here, the reasonable judges, disagreed about, whether that outcome resulted in an unfair trial for this man. But the majority concluded that this was acceptable. And so, despite various judges, coming to an opposite conclusion, the conviction stands, and so that section 276 and another example of what we just don’t let juries know about.
Adam Stirling [00:22:08] Michael Mulligan with Mulligan. Defence lawyers, Legally Speaking, during the second half of our second hour every Thursday here on the program. Thanks so much, as always.
Michael T. Mulligan [00:22:16] Thanks so much. Have a great day.
Adam Stirling [00:22:17] All right. Talk to you next week.
Automatically Transcribed on June 7, 2024 – MULLIGAN DEFENCE LAWYERS