B.C.'s highest court has overturned a $5-million malpractice award given to the family of a brain-damaged boy and ordered a new trial because the trial judge plagiarized his decision.
B.C. Supreme Court Justice Joel Groves granted Monica Cojocaru the massive award on behalf of her son Eric in a 2009 decision. Eric was born at BC Women's Hospital in 2001, and was left permanently disabled when his brain was deprived of oxygen for about 30 minutes during the delivery.
But the province's appeal court found that Groves had cribbed his reasons, nearly word-for word and without attribution, from the Cojocaru family's closing submissions.
Only 47 out of 368 paragraphs in the judge's decision were original.
"When one closely examines the trial judge's published reasons, laid side-by-side with the respondents' written submissions, one is left with the indelible impression that the trial judge could not have applied his own reasoning process to the case," Justices Pamela Kirkpatrick and Risa Levine wrote in their majority reasons.
"The reasons for judgment must be rejected because they cannot be taken to represent the trial judge's analysis of the issues or the reasoning for his conclusions."
The appeal court panel was divided in its reasons, but Kirkpatrick and Levine agreed that a new trial should be ordered.
The judges acknowledged the emotional toll on the Cojocaru family of remounting the trial, but said Groves had failed in his duties as a judge.
"None of the parties to this litigation was fairly treated by the failure of the trial judge to properly grapple with this case. Neither they nor members of the public can be satisfied that justice has been done," Kirkpatrick and Levine said.
Appeal Court Justice Kenneth Smith wrote in his dissenting reasons that he would simply set aside the judgments and dismiss the suits against two doctors, a nurse and the hospital. He wrote that he would reduce the damages against the attending obstetrician.
