Cheung v Samra: When a Jury Finds Negligence but Cannot Explain How — Causation, Jury Verdicts, and the Limits of the Trial Judge’s Power to Order a New Trial

A baby is born with an Apgar score of 1, near death. She is resuscitated over thirty minutes. She appears to recover. Two and a half months later she suffers a catastrophic seizure and becomes profoundly disabled: hypotonic cerebral palsy, unable to walk, talk or eat, fed through a tube, requiring assistance with every aspect of daily living. Her parents believe that the doctors managing her mother’s pregnancy failed to deliver her sooner, and that if they had, this would never have happened. A jury of six Ontario citizens sits through twenty-two days of evidence from some of the most highly credentialed physicians in North America, deliberates, and returns a unanimous verdict: both doctors were negligent, and their negligence caused Rhonda’s brain damage.

Then the trial judge refuses to enter judgment.

This is Cheung v Samra: a litigation odyssey spanning a decade, four court levels, five written decisions, and ultimately a $14.9 million judgment entered by the Ontario Court of Appeal after the trial judge’s refusal to give effect to the jury verdict was set aside. It is the most important recent Canadian authority on when a trial judge may refuse to enter judgment in accordance with a jury’s verdict in a medical negligence case, and on the limits of requiring juries to provide “clear and specific” particulars of how negligence caused harm.

The Clinical Story: IUGR, a Falling Growth Curve, and a Catastrophic Birth

The Pregnancy and the Diagnosis of IUGR

Yuen Ni Cheung-Kwan was pregnant with Rhonda in early 2006. Her treating obstetrician was Dr. D. Samra, a physician at the Rouge Valley Health System’s Centenary Health Centre in Scarborough, Ontario. At the 35th week of pregnancy, Dr. Samra detected that Rhonda was not growing at the expected rate. Her weight fell within the 10th percentile for her gestational age, meaning 90 out of 100 fetuses at that stage of development weighed more than her. Dr. Samra diagnosed intrauterine growth restriction (IUGR).

IUGR presents when the placental environment becomes hostile to the fetus, which ceases to receive sufficient nutrition to sustain normal growth. It carries serious risks: abnormal fetal heart rate, asphyxia, cerebral palsy, and developmental delay. Dr. Samra ordered weekly non-stress tests (NSTs) and fetal ultrasounds to monitor Rhonda’s condition and scheduled a C-section for April 25 (week 38) because Rhonda had been in breech position requiring caesarean delivery.

Between April 3 and April 11, 2006, Rhonda’s growth profile fell from the 8th percentile to the 4th. Research has established that morbidity and mortality rates spike sharply once a fetus falls below the 3rd birthweight percentile. Dr. Samra assessed Carol on April 20 and found all tests reassuring. He did not move up the delivery date.

April 21: The NST That Should Have Changed Everything

On April 21, 2006, Yuen Ni Cheung-Kwan attended Centenary Health Centre for a scheduled NST. The attending nurse had concerns about the results. Dr. J. Ma, the obstetrician on call that day, was summoned. She ordered a second assessment and reviewed the fetal heart strips. She felt the strips were reassuring and that there was no indication of fetal compromise. She discharged the mother.

This decision would become the second of the two pivotal breaches at the centre of the litigation.

April 22: An Emergency Birth and a Baby Born Near Death

The following morning, Yuen Ni Cheung-Kwan woke with vaginal bleeding and attended the hospital immediately. The fetal heart rate was very concerning. Dr. Ma was called in. She ordered an emergency C-section. During the procedure, Rhonda’s head became entrapped in the pelvis. Dr. Ma made a vertical incision to release the head. The umbilical cord was wrapped around Rhonda’s body multiple times. Rhonda was born at 7:07 a.m.

She was flat. Pale, blue, limp, making no effort to breathe. For approximately 28 minutes she had almost no heartbeat. Her Apgar score at birth was 1; on a scale of 0 to 10, an Apgar of 0 means dead. It was still 1 at five minutes and at ten minutes. A long and difficult resuscitation followed: chest compressions, intubation, ventilation, and drugs to reverse cardiac arrest. She was transferred to the Hospital for Sick Children.

An EEG on April 25, 2006 was normal. An MRI on April 26, 2006 was normal. She was discharged home on May 3, 2006, able to feed by breast and bottle and responding normally to sensory stimulation. The prognosis appeared positive.

In July 2006, Rhonda suffered a seizure at home. She was admitted to the Hospital for Sick Children. She could no longer feed independently or control her head. She has never recovered. She has been diagnosed with hypotonic cerebral palsy and severe developmental delay. She cannot walk, talk or eat. She must be fed through a gastrostomy tube. She requires assistance with every aspect of daily living.

The Litigation: The Agreed Issues and the Expert Battle

What Was and Was Not in Dispute

The plaintiffs are Rhonda Hong-Ching Cheung (suing by her litigation guardian, her mother Yuen Ni Cheung-Kwan), Ronald Chun-Pok Cheung (a minor), Raymond S.H. Cheung, and Yuen Ni Cheung-Kwan personally. The named defendants included Dr. D. Samra, Dr. J. Ma, Rouge Valley Health System-Centenary Health Centre Site, and numerous other clinicians. The claims against all defendants except Dr. Samra and Dr. Ma were resolved before trial. Damages were agreed in advance at approximately $14.9 million, approved by the order of Archibald J. of March 15, 2018. The only issues remaining for the jury were standard of care and causation.

There was never any dispute that Drs. Samra and Ma each owed a duty of care to the mother and unborn baby, nor any dispute about whether Rhonda suffered compensable losses.

The Plaintiffs’ Theory of Causation

The plaintiffs called five expert witnesses: Drs. Oppenheimer (obstetrician), Perlman (neonatologist), Hill (pediatric neurologist), Naidich (neuroradiologist), and Cohn (pediatric genetics). All were of the opinion that Rhonda suffered a hypoxic ischemic insult in the period immediately before her birth, resulting in hypoxic ischemic encephalopathy (HIE), cell damage caused by oxygen deprivation to the brain.

The specific mechanisms differed across expert testimony: Dr. Oppenheimer attributed it to umbilical cord occlusion against a background of placental insufficiency, leaving Rhonda with no compensatory reserve. Dr. Perlman testified the brain injury was caused by oxygen deprivation in the 12 to 18 hours before her birth and that had she been born 30 minutes earlier she would probably be normal today. Dr. Hill pointed to compression of the umbilical cord combined with placental insufficiency. Dr. Naidich testified that imaging studies showed severe permanent injury to both sides of her brain from hypoxic ischemia, and that early post-birth MRI findings showing no abnormality are normal in 25-50% of HIE cases. Dr. Cohn said a primary genetic cause was unlikely; the disabilities were attributable to oxygen deprivation and distress before, during and following delivery.

The Defendants’ Theory of Causation

The defendants called four expert witnesses: Drs. Vezina (neuroradiologist), Tarnopolsky (pediatric genetics), Saigal (neonatologist), and Yager (pediatric neurologist). All were of the opinion that Rhonda had not suffered an HIE injury at or immediately before birth. Their position was that she recovered well from the acute incident at birth: her MRI and EEG shortly after birth were normal; her hypotonic cerebral palsy is inconsistent with HIE; her condition did not manifest until 2.5 months of age, consistent with a genetic or metabolic disorder. None of the defendants’ experts identified the specific genetic or metabolic disorder they said might have been responsible.

The causation issue was therefore binary: either Rhonda suffered brain damage due to oxygen deprivation in the perinatal period that an earlier delivery could have prevented, or she did not suffer such injury at birth and her disability is attributable to a later, potentially genetic event unrelated to obstetrical care.

The Trial: A Jury Finds for the Plaintiffs — Then Trouble

The Jury Questions and the Problem in Closing

The trial ran 22 days before a jury, commencing March 19, 2018 before Madam Justice Darla A. Wilson. Counsel agreed that the jury would provide not only bottom-line answers (did the doctor breach the standard of care? did the breach cause the damage?) but also clear and specific particulars of how they arrived at those answers. This is standard Ontario practice in medical negligence cases following the Supreme Court’s direction in ter Neuzen v Korn, [1995] 3 SCR 674, that juries in professional negligence cases should specify in what respects the defendant was negligent.

The jury found both doctors negligent. Their standard of care findings were uncontroversial:

For Dr. Samra (Question 1B): “Dr. Samra diagnosed Rhonda with IUGR, who was falling off the growth curve. He should have moved the C-section to April 18, 2006.”

For Dr. Ma (Question 3B): “Dr. Ma should have delivered Rhonda on April 21, 2006 based on Rhonda being IUGR, her medical history and her NST results.”

In his closing address, plaintiffs’ counsel Hilik Elmaleh told the jury that if they found causation, in answering the causation questions (2B and 4B), they ought to “simply repeat the answer” they had given in the negligence questions. He said this explicitly for both doctors.

Defendants’ counsel objected immediately. Wilson J. agreed the instruction was wrong in law: breach of the standard of care and causation are separate analytical exercises. She included a correcting instruction in her jury charge, specifically directing the jury that they could not insert the same answers for the causation particulars as they had for the standard of care particulars, and that they must state how the negligence caused Rhonda’s current condition: how the negligent treatment resulted in her current disabled condition.

The Jury Answers on Causation

The jury answered questions 2A and 4A (bottom-line causation) in the affirmative, and found Dr. Samra liable for 78% of the damages and Dr. Ma liable for the balance. Their answers to the “how” questions were:

For Dr. Samra (Question 2B): “Dr. Samra’s failure to move the C-section to April 18, 2006 put Rhonda at higher risk which more likely than not caused Rhonda’s brain damage.”

For Dr. Ma (Question 4B): “Dr. Ma’s failure to deliver Rhonda on April 21, 2006 due to her being IUGR, her medical history and NST results more likely than not caused her brain damage.”

The jury was discharged. Defendants’ counsel then moved under Rule 52.08 for two alternative remedies: dismissal of the action on the basis that the plaintiffs had failed to lead any evidence that an earlier delivery would have led to a different outcome, or alternatively a new trial on the basis that the jury’s causation answers were not responsive to the questions put to them.

Wilson J.’s Decision: The Jury’s Answers Were “Fatally Flawed”

Wilson J. heard the motion on May 15, 2018 and released her written ruling on June 5, 2018. She rejected the “no evidence” argument: there was sufficient evidence upon which the jury could have found causation. The testimony of Drs. Oppenheimer and Perlman, that Rhonda should have been delivered earlier and that if she had been, she would not have suffered brain damage, was some evidence, albeit not elaborated upon as it might have been. “Whether there was sufficient evidence to establish causation on a balance of probabilities is not for me to decide.”

On the alternative argument, however, she found for the defendants. The jury’s causation answers were “fatally flawed.” They did not explain the causal link between the negligence and the brain damage. The answer for Dr. Samra, that his failure “put Rhonda at higher risk which more likely than not caused” her brain damage, demonstrated that the jury equated increased risk with causation. Putting a patient at higher risk is not sufficient to establish causation; the “but for” test requires proof that the breach was a necessary cause of the injury, not merely that it increased the probability of a bad outcome. The jury had been specifically instructed that it was not enough to prove adherence to the standard of care would have given Rhonda a chance to avoid the brain damage.

The answer for Dr. Ma mirrored the standard of care finding, precisely what plaintiffs’ counsel had improperly suggested they do, and precisely what Wilson J. had instructed them not to do. “The answers of the jury on causation are fatally flawed and as a result, judgment cannot be entered in accordance with the jury verdict.”

She ordered a new trial.

The Journey to the Court of Appeal

2018 ONCA 923: A Jurisdictional Detour

The plaintiffs initially appealed Wilson J.’s order directly to the Court of Appeal. The defendants moved to quash the appeal. The ONCA (Watt, Miller and Nordheimer JJ.A.) quashed it on November 19, 2018. The order directing a new trial is an interlocutory order, not a final one: it does not determine the real matter in dispute between the parties but requires another proceeding for that purpose. The appeal accordingly lay to the Divisional Court, not the Court of Appeal. The matter was transferred to the Divisional Court.

The Divisional Court: 2020 ONSC 4904, 2-1

The Divisional Court (Corbett, Lederer and Boswell JJ.) heard the matter on January 30, 2020 and released its reasons on August 27, 2020. All three judges dismissed the defendants’ cross-appeal, confirming there was ample evidence for the jury’s verdict.

On the main issue, whether the jury’s causation answers were sufficient, the court divided 2-1.

The majority (Boswell J., Lederer J. concurring) dismissed the plaintiffs’ appeal and upheld the new trial order. The parties had agreed that the jury would provide reasons for its causation findings; having agreed to that process, the question was whether the reasons provided were sufficient. The majority set out a test: jurors’ reasons will be insufficient where they are not responsive to the questions asked, manifest confusion or ambiguity, or indicate the jury missed an essential issue. Applied to these answers: they were non-responsive, adding nothing to the bottom-line answers; the jury appeared to have confused standard of care with causation by repeating its negligence findings; and the causation issue was left in doubt. The trial judge was correct to exercise her discretion to order a new trial.

Corbett J. dissented. He would have allowed the appeal and entered judgment for the plaintiffs. The jury’s answers, while conclusory, were consistent with the verdict and not inconsistent with any principle of law. The causation theories in this case were binary: either the injury occurred in the perinatal period or it did not. The jury’s choice of the plaintiffs’ theory was evident from their answers. Defence counsel had not clearly raised the insufficiency of the causation answers as a ground to send the jury back for further deliberations before the jury was discharged, and by the time this argument was pressed separately three weeks later, the opportunity for the proper remedy (re-instruction and further deliberations) had been lost.

Corbett J. went further. He argued that questions requiring juries to provide reasons for their causation findings should generally not be asked at all. Section 108(6) of the Courts of Justice Act provides that “it is sufficient if five of the jurors agree on the verdict or the answer to a question.” Asking juries to provide reasons creates a structural problem: six jurors may reach the same conclusion through different reasoning paths, but the question presupposes they can identify common reasons to which at least five agree. This misunderstands how deliberations work and creates an unfair asymmetry: juries are asked to explain findings for the plaintiff but not findings against. His dissent was prescient: it substantially informed the reasoning of the Court of Appeal.

2022 ONCA 195: The Final Word

The Court of Appeal (Simmons, Pardu and Brown JJ.A.) heard the matter on February 7, 2022, with two interveners, the Canadian Chiropractic Protective Association and the Ontario Trial Lawyers Association, taking opposing positions on whether juries should be required to provide causation particulars. Pardu J.A. delivered the reasons; Simmons and Brown JJ.A. concurred.

The appeal was allowed. The new trial order was set aside. Judgment was entered for the plaintiffs in the agreed sum of $14.9 million.

The Court of Appeal’s core analysis proceeds from the basic principles governing a trial judge’s authority to reject a jury verdict. The grounds are limited and well-established. A trial judge may refuse to enter judgment only where: (1) there is no evidence to support the jury finding; or (2) the jury gives an answer to a question which cannot in law provide a foundation for a judgment. The “no evidence” threshold is extremely high: the verdict must be “so plainly unreasonable and unjust that no jury reviewing the evidence as a whole and acting judicially could have arrived at the verdict.” Neither ground was met here.

The analysis begins with a presumption: juries understand and properly apply the instructions provided to them. This presumption has force “whether or not a jury is asked to give reasons or particulars for its findings.” It would be wrong to assume juries disregard instructions; such thinking could seriously undermine the entire jury system.

Applying a fair and liberal interpretation to the causation answers, Pardu J.A. concluded they provided a legal foundation for judgment. The reference to “higher risk” in the Dr. Samra answer should not be read as evidence the jury confused risk with causation. The jury had already answered unambiguously, in the bottom-line question, that but for the breach, Rhonda would not have sustained brain damage. The “higher risk” language was, on a fair reading, an incidental comment alongside a clear causation finding. Agreeing with Corbett J.’s dissenting analysis, Pardu J.A. read the answer as meaning: the breach of duty caused Rhonda to be at greater risk; that risk came to pass; but for the breach, the risk would not have come to pass.

The trial judge had asked the jury to explain “how” the breach caused the injuries, not to identify the “mechanism of injury” or sequence of physiological events. Jurors are lay persons who cannot be expected to produce reasons with judicial precision. The trial judge also told them they could draw inferences “through the application of reason and common sense.” The jury’s answers were consistent with their having done exactly that: accepted the plaintiffs’ binary causation theory and rejected the defendants’.

On the question of asking juries for particulars at all, Pardu J.A. declined to adopt a general rule either way, observing that the discretion belongs to the trial judge in each case. She did note, however, that where there are multiple reasoning paths that could lead to a finding of causation, asking for particulars “may undermine the integrity of the jury’s verdict more by infelicities of expression than any real concern for the merits of the jury’s decision or reasoning.”

Costs of $35,000 inclusive of disbursements and taxes were awarded for the appeal and motion for appeal. Trial costs were remitted to Wilson J. for determination.

SCC Leave Denied: December 8, 2022

Dr. Samra and Dr. Ma sought leave to appeal to the Supreme Court of Canada. The application, SCC File No. 40179, was dismissed on December 8, 2022. The 2022 ONCA 195 decision stands as the final word in the litigation, more than a decade after the action was commenced.

What Cheung v Samra Establishes: The Governing Principles

Principle One: The Strict Limits on Rejecting a Jury Verdict

The most consequential holding in Cheung v Samra is the reaffirmation, at the appellate level, of the extreme narrowness of the trial judge’s power to refuse to enter judgment in accordance with a jury verdict. The grounds are two and only two: no evidence supporting the finding, or an answer that cannot in law provide a foundation for judgment. The latter requires that the answer be wrong in law or based on impermissible reasoning: not merely that it is conclusory, not merely that it fails to articulate the mechanism of injury, not merely that the trial judge is dissatisfied with its level of detail.

A verdict supported by evidence is entitled to deference. The role of the jury is to decide the facts. Where the jury has heard weeks of expert evidence, deliberated, reached a unanimous conclusion, and provided an answer consistent with its verdict, the trial judge’s disagreement with the level of reasoning displayed is not a basis to set that verdict aside. As the ONCA noted: whether a jury verdict is perverse or unreasonable is a matter for appellate courts, not for the trial judge.

Principle Two: The Presumption That Juries Follow Instructions

The presumption that juries understand and properly apply judicial instructions is a cornerstone of the jury system. In Cheung v Samra, both the trial judge and the Divisional Court majority inferred from the form of the jury’s causation answers that the jury had ignored Wilson J.’s correcting instruction and followed plaintiffs’ counsel’s improper suggestion instead. Pardu J.A. held this inference was speculative. The answers were equally consistent with the jury having followed the charge, adopted the plaintiffs’ theory of causation, and expressed their conclusion in the only way six lay persons could agree: as a conclusion.

This principle has direct practical significance for medical malpractice jury trials: where a correcting instruction is given, the court must begin from the assumption that the jury followed it. Inferring from the form of a causation answer that the jury disregarded the charge requires something more than the mere fact that the answer is brief or conclusory.

Principle Three: “Higher Risk” Language in Causation Answers

The jury’s answer for Dr. Samra stated that his failure to move the C-section “put Rhonda at higher risk which more likely than not caused Rhonda’s brain damage.” The trial judge and Divisional Court majority read “higher risk” as evidence the jury confused increased risk with causation, a legally impermissible basis for liability. The Court of Appeal read it differently: as an incidental description of the factual pathway by which the breach produced the outcome. Read liberally, the jury was saying the breach created conditions under which brain damage became more likely, and that brain damage then occurred. That is a finding of causation, not a finding of mere risk exposure.

Cheung v Samra therefore establishes that the presence of risk language in a jury causation answer does not automatically render that answer legally insufficient. The question is whether the answer, fairly and liberally read, supports a finding that the breach caused the harm, not whether it describes that causal link in precise clinical or legal terminology.

Principle Four: The Limits and Risks of Asking Juries for Causation Particulars

The ter Neuzen practice of asking juries to provide particulars of their negligence findings (adapted by Ontario courts to include particulars of causation) is intended to test jury understanding and to provide an assurance that the verdict rests on solid ground. Cheung v Samra reveals a serious structural problem with extending this practice to causation in cases where multiple experts have offered multiple explanations of the same injury mechanism.

In such cases, six jurors may reach the same conclusion (causation established) through six different paths of reasoning, each individually sufficient. If asked to agree on a written explanation, the only answer they can all agree on is the conclusion itself. The “particulars” become a statement of result rather than a statement of reasoning. To then find the verdict unreliable because it is conclusory is to use the process of seeking particulars to create a standard of transparency that the jury system does not actually impose, and cannot realistically achieve.

Corbett J.’s dissent, endorsed substantially by Pardu J.A., identifies this as the fundamental problem: the defence is not entitled to reasons from the jury. When a jury is instructed that five of six jurors must agree on each answer, and that their deliberations are secret, asking them to explain their reasoning on causation risks requiring more than the statute and the jury system can deliver. Cheung v Samra did not abolish the practice (that would require a more direct challenge) but it significantly circumscribes the consequences. Conclusory answers that are consistent with the verdict and not based on impermissible reasoning are a sufficient foundation for judgment.

Principle Five: The “But For” Test and Plaintiffs’ Evidentiary Obligations

While the ONCA’s decision gave the plaintiffs their judgment, Cheung v Samra also illustrates the evidentiary demands that the “but for” test places on plaintiffs in birth injury cases. Wilson J.’s critique of the expert evidence, that it was “less than ideal,” lacking cohesiveness and specificity, consisting of “broad brush statements” about earlier delivery producing a better outcome without explaining how, was not reversed. The ONCA agreed there was some evidence, sufficient to avoid dismissal, but did not endorse the quality of the expert evidence as a model to emulate.

The practical lesson for medical malpractice practitioners is clear: expert witnesses in birth injury causation cases must go beyond stating that an earlier delivery would have produced a better outcome. They must engage with the specific mechanism: what would have happened at the earlier delivery, how the injury would have been avoided, what was occurring in the relevant period that would have been different. Reliance on the jury’s ability to draw inferences from broadly stated opinions is a litigation risk that the Cheung journey illustrates with painful clarity.

Cheung v Samra in the Series: Causation Across the Guides

Cheung v Samra is cited across five practice guides in this series (birth injury, stroke, surgical error, heart attack, and physiotherapy and chiropractic) because its legal principles bear on every category of medical malpractice litigation that proceeds to trial on causation. The “but for” test, the limits of the trial judge’s power to reject a jury verdict, and the evidentiary obligations of plaintiffs in complex causation cases are constant features of the landscape, not peculiarities of the obstetrical context.

The case pairs naturally with Snell v Farrell, 1990 CanLII 70 (SCC) — https://canlii.ca/t/1fstw and Clements v Clements, 2012 SCC 32 (CanLII) — https://canlii.ca/t/frvld on the “but for” test and the “robust and pragmatic approach” to causation. It also illuminates the terrain previously surveyed in ter Neuzen v Korn, https://canlii.ca/t/1frhk demonstrating how the ter Neuzen practice of asking juries for particulars, valuable in cases involving a single standard of care question, can create complications in multi-expert, multi-mechanism causation disputes. Both the companion article on ter Neuzen v Korn and the causation guide in this series address the “but for” test in further detail.

Conclusion

Rhonda Cheung came into the world on April 22, 2006 with an Apgar score of 1. After a decade of litigation, four court levels, and a battle over whether a jury of six Ontarians was entitled to have their verdict respected, the Court of Appeal entered judgment in her favour in the amount of $14.9 million. The Supreme Court of Canada declined to disturb it.

What the case establishes is not simply a procedural rule about jury verdicts. It establishes a framework for understanding the relationship between juries, trial judges, and appellate courts in complex medical malpractice litigation. Juries are the designated fact-finders. Their verdicts are entitled to respect, a fair and liberal interpretation, and the presumption that they followed the law as explained to them. The trial judge’s power to refuse judgment is narrow, the grounds are limited, and the fact that a causation answer is conclusory, expressed in the compressed, common-language form that lay persons working from secret deliberations can manage, is not sufficient to deprive a plaintiff of the verdict a jury found they deserved.

For Rhonda, the principle has personal weight. But for practitioners in every area of medical malpractice, the case is a reminder of how high the stakes are in the decisions made before and during trial: whether to proceed before a jury, how to frame causation questions, what expert evidence must actually establish, and what happens when the gap between the law of causation and the way a jury can express it in writing is wider than anyone anticipated.

Quick Reference: Cheung v Samra

The Five Decisions

• 2018 ONSC 3480 — https://canlii.ca/t/hsnt4 — Wilson J.; new trial ordered; jury causation answers “fatally flawed”
• 2018 ONCA 923 — https://canlii.ca/t/hw4n9 — Watt, Miller and Nordheimer JJ.A.; appeal quashed; new trial order interlocutory; transferred to Divisional Court
• 2020 ONSC 4904 — https://canlii.ca/t/j9hv5 — Corbett, Lederer and Boswell JJ.; 2-1 majority upholds new trial; Corbett J. dissents
• 2022 ONCA 195 — https://canlii.ca/t/jmzv5 — Simmons, Pardu and Brown JJ.A.; appeal allowed; $14.9 million judgment entered
• 2022 CanLII 115633 (SCC) — https://canlii.ca/t/jtd22 — SCC leave denied; 2022 ONCA 195 is final

Key Parties

• Plaintiff: Rhonda Hong-Ching Cheung (minor by litigation guardian Yuen Ni Cheung-Kwan), Ronald Chun-Pok Cheung, Raymond S.H. Cheung and Yuen Ni Cheung-Kwan personally
• Key defendants at trial: Dr. D. Samra (treating obstetrician); Dr. J. Ma (on-call obstetrician); Rouge Valley Health System-Centenary Health Centre Site
• Agreed damages: $14,900,000 (agreed in advance; approved by Archibald J., March 15, 2018)
• Liability apportionment: Dr. Samra 78%; Dr. Ma 22%

Clinical Summary

• IUGR diagnosed week 35; growth falling from 8th to 4th percentile April 3-11, 2006
• C-section scheduled April 25; plaintiffs say it should have been moved to April 18
• April 21: Dr. Ma discharges mother after NST; plaintiffs say she should have delivered that day
• April 22: Emergency C-section at 7:07 a.m.; cord wrapped around baby; Apgar 1 at birth, at 5 minutes, at 10 minutes; extensive resuscitation
• July 2006: Rhonda suffers seizure; diagnosed with hypotonic cerebral palsy; profoundly disabled

The Four Governing Principles

• A trial judge may refuse to enter judgment in accordance with a jury verdict only on two grounds: (1) no evidence supports the finding; (2) the answer cannot in law provide a foundation for judgment. Neither permits rejection of a verdict because the causation particulars are conclusory
• The presumption that juries follow judicial instructions applies with full force whether or not the jury is asked to give particulars. Inferring from the form of a causation answer that the jury disregarded a correcting instruction is speculative without more
• “Higher risk” language in a jury causation answer does not automatically render it legally insufficient. Applied to the Cheung facts: the answer was read as finding that the breach caused conditions under which brain damage occurred, a causation finding, not a risk-exposure finding
• Asking juries for causation particulars in multi-expert, multi-mechanism cases creates structural problems: six jurors may reach the same conclusion through six different paths, and their only common ground is the conclusion itself. Conclusory answers consistent with the verdict are sufficient

Related Cases in This Series

• Snell v Farrell, 1990 CanLII 70 (SCC) — https://canlii.ca/t/1fstw — the “but for” test and the “robust and pragmatic approach” to causation in negligence
• Clements v Clements, 2012 SCC 32 (CanLII) — https://canlii.ca/t/frvld — SCC clarification of the “but for” test; material contribution to risk
• Ter Neuzen v Korn, [1995] 3 SCR 674 — https://canlii.ca/t/1frhk — the origin of the practice of asking juries to specify negligence particulars; the standard of care in professional negligence cases
• Benhaim v St-Germain, 2016 SCC 48 (CanLII) — the “but for” test in cancer malpractice; adverse inference from missing evidence
• Bailey v Young, 2022 NSSC — obstetrical malpractice; companion birth injury case; article forthcoming in this series