Crits v. Sylvester, (1956) O.R. 132 (C.A.)

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  • Date: 2018

Crits and Crits v. Sylvester et al.

[1956] O.R. 132-151.

ONTARIO [COURT OF APPEAL]

AYLESWORTH, F.G. MacKAY and SCHROEDER JJ.A.

24th JANUARY 1956.

 

 

Medicine and Surgery — Negligence — Use of Highly Explosive Substance in Administration of Anaesthetic — Explosion — Whether Reasonable and Necessary Precautions Taken — Res ipsa loquitur — Matter not Requiring Specialized Knowledge.

Hospitals — Liability — Explosion in Operating-room — Whether any Defect in Construction or Operation of Hospital or Equipment — Absence of Responsibility for Failure of Surgeon or Anaesthetist, not Employed by Hospital, to Use Equipment Provided.

The infant plaintiff, then aged about 5 years, was being anaesthetized for an operation when an explosion occurred, apparently as the result of static electricity and the use by the anaesthetist of a highly explosive mixture of ether and oxygen.   The boy was severely burned, and an action was brought against the surgeon, the anaesthetist, and the two corporations responsible for the hospital.

 

Held, the anaesthetist alone was liable.

 

The standard of care required of a medical practitioner was clearly and succinctly stated in Rex v. Bateman (1925), 41 T.L.R. 557 at 559, and Roe v. Minister of Health et al., [1954] 2 Q.B. 66 at 83, 88.  The rule res ipsa loquitur applied to malpractice actions.   Nesbitt v. Holt, [1953] 1 S.C.R. 143,

followed.  The plaintiffs were entitled to invoke that rule in the circumstances of this case, and its effect was to shift to the defendant the onus of giving an explanation that was at least equally consistent with absence of negligence as with negligence.           United Motors Service, Incorporated v. Hutson et al., [1934] S.C.R. 294 at 297, quoted and applied.             This the anaesthetist had failed to do.  His conduct should be regarded not as involving a matter of technical skill and experience but rather as an omission to take proper precautions in circumstances and in relation to a matter as to which any sensible layman was competent to determine, without the assistance of expert evidence, whether or not that failure amounted to negligence.           Anderson v. Chasney et al. (1949), 57 Man. R. 343, affirmed [1950] 4 D.L.R. 223, agreed with.     Even if it had been established (and it was not) that what this defendant did was in accordance with “standard practice”, that would not constitute a defence, since the practice was not safe and should not have been followed.     Bank of Montreal v. Dominion Gresham and Casualty Company, Limited, [1930] A.C. 659; Lloyds’ Bank, Limited v. E.B. Savory and Company, [1933] A.C. 201 at 232, referred to.

The hospital authorities could not be held liable, because it had not been established that there was any defect in the construction or maintenance of the hospital, or that they had failed to provide any equipment that was reasonably necessary for the prevention of such accidents.                                     They were not responsible if the surgeon or anaesthetist (who were employed by or on behalf of the patient, and not by the hospital) failed to use the equipment that was available for them.

The plaintiffs had abandoned their claim as against the surgeon.

Judgment of SMILY J., [1955] O.R. 332, reversed in part.

AN APPEAL by the plaintiffs from the judgment of Smily J., [1955] O.R. 332, [1955] 3 D.L.R. 181, dismissing the action. 15th, 16th and 19th December 1955.   The appeal was heard by AYLESWORTH, F.G. MACKAY and SCHROEDER JJ.A.

J.D. Arnup, Q.C., for the plaintiffs, appellants:  We abandon the appeal as against the defendant Macklin. Our submission is that there was negligence on the part of the defendant Sylvester which was destinguishable and separate from the negligence, also apparent, of the defendant hospital corporations. I do not propose to argue, however, that the hospital should assume any vicarious liability for Sylvester’s negligence.

 

The learned trial judge’s findings were not based on credibility, but on the logical weight to be given to the evidence and the inferences to be drawn from the established facts, and this Court is therefore in as good a position as the trial judge to determine the questions.

The evidence indicates that the equipment and technique used by Sylvester were both “standard”, but that appropriate methods of exercising greater caution were available and were not used. The facts lead to certain definite conclusions, viz.:                           (1) that an explosion was caused by a discharge of static electricity in an area saturated with a mixture of oxygen and ether; (2)                      that only a second would have been required to turn off the oxygen supply entirely; (3)                       that Dr. Sylvester was a specialist, who had actual knowledge of the great danger and hazard involved by his failure to turn off the oxygen.     The case in in many ways similar to Anderson v. Chasney et al., 57 Man. R. 343, [1949] 2 W.W.R. 337, [1949] 4 D.L.R. 71, affirmed sub nom. Chasney v. Anderson et al., [1950] 4 D.L.R. 223.

 

Both the hospital authorities and Dr. Sylvester knew that a mixture of ether and oxygen was a highly explosive substance, and the duty of care required in the handling of such dangerous substances is “consummate care”.    It is questionable whether the hospital used the most effective means of “grounding”, particularly in view of the fact that the use of chains was recommended after this accident.                        I do not contend that what was done after the event is admissible as to the event itself, but it is admissible to show that there was a method available, other than that generally used in the hospital.

The more dangerous the substance being used the higher is the duty of care required.                    The standard of care required of one handling an explosive substance is very high: Dominion Natural Gas Company, Limited v. Collins et al., [1909] A.C. 640; The Citizens’ Light and Power Company v. Lepitre et ux. (1898), 29 S.C.R. 1.  The standard varies with the substance in question: McArthur v. Dominion Cartridge Company, [1905] A.C. 72.   The term “consummate care” was used by Middleton J.A. in Hutson et al. v. United Motor Service Ltd., [1936] O.R. 225 at 230, [1936] 2 D.L.R. 390, 3 I.L.R. 162, affirmed sub nom. United Motors Service, Incorporated v. Hutson et al., [1937] S.C.R. 294, [1937] 1 D.L.R. 737, 4 I.L.R. 91

A higher degree of care is required of a specialist than of one who is not a specialist:   McCaffrey v. Hague, [1949] 2 W.W.R. 539, [1949] 4 D.L.R. 291.  The rule res ipsa loquitur applies.

The use of a “standard method” or “standard practice” does not excuse a defendant if the Court, on examining the practice, finds that it is not a good or safe one:    Bank of Montreal v. Dominion Gresham Guarantee and Casualty Company, Limited, [1930] A.C. 659, [1930] 4. D.L.R. 689, [1930] 3 W.W.R. 331, 50 Que. K.B. 57; Lloyds Bank, Limited v. E.B. Savory and Company, [1933] A.C. 201; Anderson v. Chasney et al., supra, at p. 75 ([1949] 4 D.L.R.).

The infant plaintiff was not only the surgeon’s patient; he was given the general accommodation and services of the hospital.                               The hospital owed him a high duty to use all known and effective methods of preventing injury.               No expert witness called at the trial extended the “blanket” immunity so far as to cover the failure to turn off the oxygen.

G.L. Mitchell, Q.C., for the defendant hospital corporations, was not called on by the Court.

G.F. Henderson, for the defendant Sylvester, respondent:  An explosion involves two elements, (1) the atmosphere, and (2) the spark.      It cannot be said with certainty where the spark occurred in this case. There is no known way of ensuring that explosions will not take place in an operating-room. The question to be determined is whether the anaesthetist followed a reasonable course of action.   The propriety of his conduct must be considered in relation to the conditions applicable to each of the acts he had to perform from the moment that he realized that resuscitation was imperative to the moment when the explosion occurred.      His state of mind at each stage must also be taken into account.                          The turning down of the valve on the oxygen-tank was a deliberate act of judgment, and it was done for a specific reason. Even if he made an error in judgment his act did not constitute negligence in the circumstances.

The propriety of the defendant’s conduct must be considered not only as an isolated act but in relation to the spark.    Even if his explanation of what happened is not the correct one, his conduct is not negligence in law unless the presence of the spark at the time and in the place where it occurred was foreseeable.                  This explosion was not foreseeable because the doctor took all proper precautions during his resuscitation of the patient.

The professional man does not agree to bring about a successful issue in any event, and is not to be tried by the result.   The standard imposed upon a medical practitioner is not the standard of perfection: Hughston v. Jost, [1943] O.W.N.

3 at 5, [1943] 1 D.L.R. 402.  Here the actions of the anaesthetist were subjected to a microscopic ex post facto examination.  My submission is that he exercised reasonable care in carrying out his responsibilities to the infant plaintiff.         The mere fact that something went wrong is not in itself evidence of negligence:   Roe v. Minister of Health et al.; Woolley v. Same, [1954] 2 Q.B. 66, [1954] 2 All E.R. 131 at 137. A physician is not an insurer, but undertakes to bring to the exercise of his profession a reasonably fair and competent degree of skill:  Lanphier et ux. v. Phipos (1838), 8 C. & P. 475, 173 E.R. 581.

Dr. Sylvester used a technique that he had successfully used on many occasions. It has been held that a medical practitioner can escape liability if what he did was according to standard practice:   Whiteford v. Hunter, [1950] W.N. 553 at 554; McDaniel et al. v. Vancouver General Hospital, [1934] 3 W.W.R. 619, [1934] 4 D.L.R. 593 at 597; McFadyen et al. v. Harvie et al., [1941] O.R. 90 at 95, [1941] 2 D.L.R. 663, affirmed [1942] S.C.R. 390, [1942] 4 D.L.R. 647.

The rule res ipsa loquitur is a special case within the broader doctrine that the Courts can and are entitled to act upon the balance of probabilities. Whether the rule applies in a malpractice case depends upon the circumstances of that case: Holt v. Nesbitt, [1951] O.R. 601 at 607, [1951] 4 D.L.R. 478, affirmed sub nom. Nesbitt v. Holt, [1953] 1 S.C.R. 143 at 144, [1953] 1 D.L.R. 671.    There is no room for its application in the circumstances of this case:  Mahon v. Osborne, [1939] 2 K.B. 14, [1939] 1 All E.R. 535 at 542.  Even if the rule applies here, it applies only to the provisional burden of adducing evidence.  Its effect, if it does apply, is to cast on us the burden of giving an explanation of the accident, and that explanation need be no more than one that is equally consistent with absence of negligence as with negligence: United Motors Service, Incorporated v. Hutson et al., supra, at p. 297; 7 C.E.D. (Ont.), 2nd ed. 1952, p. 468.       If such an explanation is given, the burden remains with the plaintiff to establish negligence affirmatively:      The Ontario Equitable Life and Accident Insurance Company v. Baker, [1926] S.C.R. 297, [1926] 2 D.L.R. 289.

If the defendant’s method of operation is not itself defective, the failure to use some other method or equipment which might have been more effective is not negligence: Higgins et al. v. Comox Logging and Railway Company, [1927] S.C.R. 359, [1927] 2 D.L.R. 682. J.D. Arnup, Q.C., in reply:  The respondent Sylvester knew that        it was impossible to prevent a discharge of static electricity in an operating-room, and that it was logical to assume that at some time there would be a spark; it is an ever- present danger.  With the knowledge that Sylvester possessed

in his special field, it was his duty to see that there was no undue concentration of this gaseous substance. To permit it to flow into an area near the patient’s head was dangerous and negligent.

 

Cur. adv. vult.

24th January 1956.  The judgment of the Court was delivered by

 

SCHROEDER J.A.:– The plaintiffs, father and son, are appealing from the judgment of Mr. Justice Smily rendered on the 23rd February 1955.   On 5th February 1952 the infant plaintiff, who was born on 5th March 1947, was admitted as a patient to the Stratford General Hospital and the action was brought to recover damages arising from injuries sustained by the infant plaintiff in the course of the administration of an anaesthetic by the defendant Sylvester, a qualified specialist in anaesthesiology, when an explosion occurred causing extensive second and third degree burns over the left side of his forehead, the left temporal region and the left facial area, requiring several skin-grafting operations.

The learned trial judge dismissed the action against all defendants and assessed the damages of the adult plaintiff at the sum of $1,882.55 in addition to any charge which the defendant hospital might make against him in respect of his son’s hospitalization. He assessed the general damages of the infant plaintiff at $7,500, taking into account such further reconstructive surgery as might be necessary in the treatment of the infant plaintiff.             The amount of the award is not in question. Counsel for the plaintiffs informed the Court at the commencement of his argument that his clients were abandoning this appeal as against the defendant Macklin, who had been retained as surgeon to perform a tonsillectomy upon the plaintiff John Crits. The plaintiffs, however, maintained their right to recover against the hospital authorities and the anaesthetist. When the submissions of the appellants’ counsel in support of this claim were completed, the Court expressed the opinion that the appeal must be dismissed as against the hospital.           I shall state very briefly the reasons for holding that no case had been made out as against these two defendants.

Mr. Arnup argued that there was a duty on the hospital authorities to provide drag-chains for attachment to the portable equipment in the operating-room in order to effect a proper grounding of such equipment and to provide a Horton inter-coupler, a contrivance which, by means of wires, connects the various persons who are present in an operating-room during a surgical operation for the purpose of equalizing the electrical potential among them and carrying off any electrical charge that may be generated, thus minimizing the hazard of an electrostatic spark in the course of an operation in which an inflammable agent such as oxygenated ether was used for anaesthetic purposes.     He contends also that the well-known hazard of static electricity imposed a further duty on the hospital authorities to see that such devices were actually employed by the anaesthetist and attending surgeons.     In the present case Horton inter-couplers were provided by the hospital and were readily available to the anaesthetist and to the surgeon.     Both of these medical practitioners, however, were employed by or on behalf of the patient and not by the hospital; therefore the hospital authorities cannot be held liable if the doctors thus employed fail to use the equipment which it has provided.          It is too much to say that a hospital should employ overseers to ensure that anaesthetists or surgeons of proved ability who are privately engaged use the appliances which the hospital has at hand.  Chains were not in general use in the defendant hospital at the relevant period but Dr. Sylvester stated that if he had desired chains they would have been supplied. I agree with the learned trial judge, for the reasons stated by him, that failure to use chains on the mobile equipment had no real significance in this case. The expert testimony which the learned trial judge accepted makes it appear that medical authorities hold divergent views as to the supposed advantages of using a Horton inter-coupler and considerable doubt is cast upon the efficacy of that particular appliance.  I also agree with his findings upon this point.

It follows that it is necessary only to review the case advanced against the defendant Sylvester on other grounds of liability which have not yet been touched upon.

At approximately 10 c’clock on the morning of 5th February 1952 the infant plaintiff, John Crits, was given sedation as prescribed by the anaesthetist and at approximately 10.45 o’clock in the morning he was taken to a small operating-room in the “operating suite” of the hospital.       There Dr. Sylvester injected a solution of sodium pentothal into a vein in the infant’s arm, which produced a state of insensibility in less than a minute.               This agent was used because of its quickly- acting qualities and for the purpose of enabling the anaesthetist to insert a vinyl plastic tube into the trachea of the patient between the vocal cords, which would grip it and hold it firmly in place. As Dr. Macklin was to perform a tonsillectomy, the doctors decided to use a gaseous anaesthetic consisting of a mixture of ether and oxygen and as to its selection for the purpose of this operation no question arises in this action.

It would contribute to a clearer understanding of the issues if I were to describe in some detail the various pieces of apparatus employed by Dr. Sylvester and the method pursued by him in administering the anaesthetic to the patient.             Part of the apparatus was a used ether-can in the top of which three holes of different sizes had been punched, one in the centre and one on each side; a tube from the oxygen-tank was inserted in the larger of the two lateral orifices.         A tube, including other connections, leading to the patient’s mouth was placed in the central perforation.          The third one was left open to the air. It may also he helpful to mention the several connecting parts extending from the ether-can to the patient: (1)                                    there was a 1/2-inch copper pipe-elbow with a rubber tube on the end inserted into a lip, on the outer end of which was a home-made attachment resembling a nipple; (2)  in this elbow was a “Stevens-Slater valve” made of metal and rubber; (3)  a short piece of rubber tubing led from this object to what was described as an Adams connector tube 1 1/4 inches long and 3 inches in diameter; (4) a vinyl plastic tube, sometimes referred to as a Magill tube, which was 7 or 8 inches in length was inserted in the Adams connector and it was this plastic tube which was in immediate contact with the patient, having been inserted in his throat between the vocal cords into the trachea or windpipe.

The ether-container was on a stand about 8 inches away from the infant’s head.                                    The oxygen-tank, which was approximately 3 feet high and 9 inches in diameter, was in a position about 3 or 4 feet to Dr. Sylvester’s left and slightly to his rear.                  As already stated, there was a rubber tube running from the oxygen-tank to the larger lateral hole in the top of the ether- can.        On the morning in question the can contained about 3 ounces of ether, having a depth of slightly less than 1 inch in the can.  The gaseous mixture was obtained by turning on a valve on the oxygen-tank, thereby releasing oxygen into the ether-can, either above the surface of the ether or “bubbling into it”. This caused a blend of ether and oxygen in the form of a gaseous vapour to flow into the tube leading to the patient’s trachea where a certain quantity of it was to be absorbed by respiration to produce the desired depth of anaesthetization.  The defendant Sylvester stated that he was unable to give any exact formula for the combination of ether and oxygen, relying on his experience to determine the proportional strength of the two elements employed in this instance.

About 30 seconds after Dr. Sylvester had commenced the induction of the anaesthetic into the infant plaintiff’s lungs, he observed an irregularity in his breathing and noticed that he was becoming cyanosed, a colour-change taking place in the skin which suggested that imperfectly oxygenated blood was being circulated.  This is a calculated emergency which every anaesthetist experiences and it demands prompt action to introduce pure oxygen into the patient’s lungs.            If such treatment is not given the patient within four minutes, irreversible damage may be caused to his brain or fatal consequences may follow. To meet such a situation Dr. Sylvester had available an egg-shaped bag made of conductive rubber which when inflated was about 10 inches long and 6 to 8 inches in diameter.  He removed the Adams connector from the Slater valve and attached it to the face-piece of the oxygen- bag.  He then removed the oxygen-tube from the ether-can and attached it to the Adams connector.     He next opened the valve on the oxygen-tank fully in order to fill the rubber bag with oxygen as quickly as possible.  When this was accomplished, he turned the valve on the oxygen-tank down but did not shut it off completely and then reinserted the oxygen-tube in the ether-can. The next step was to connect the rubber bag to the Magill tube which was still in place, and by compressing the rubber bag about 10 or 12 times over a period of 30 to 60 seconds, to force oxygen into the patient’s lungs, a procedure which the doctors described as “bagging” the patient.    Having observed an improvement in the boy’s colour and breathing, he decided to disconnect the rubber bag from the Magill tube.     He described in meticulous detail the method adopted by him for severing these parts, stating that he held the Magill tube in one hand and the Adams connector in the other hand, and “twisted” the plastic tube off the connector. The point at which the connection was broken was 4 inched from the ether-can and the can, as has been noted, was about 8 inches from the infant plaintiff’s head.    At the moment when these two objects were separated, Dr. Sylvester saw a blue flame between his hand and the ether-can and a violent explosion followed, causing injury to the infant plaintiff as hereinbefore stated.

During the time that he was resuscitating his patient in the manner described Dr. Sylvester, as I have said, had left the valve on the oxygen-tank partly open and, since he had replaced the oxygen-tube in the ether-can, oxygen was permitted to flow into the can.    It is to be observed that this gaseous mixture was not then being inhaled by the patient as it was before he became cyanosed, and it would emanate from the can through the openings in it.  It was stated by the witness Dr. R.A. Gordon that “during the process of anaesthetization the heaviest concentration of ether in the room would be at a point between the anaesthetist and the patient”; further that “as long as oxygen was flowing into the ether and vapour was being emitted from the opening in the can, it would be flowing around the patient”.  It seems logical to assume that there would be an even heavier concentration around the ether-can while the oxygen was flowing into the can and was not being absorbed through inhalation by the patient.   If any heat were generated in the vicinity of this heavier concentration of gas, which admittedly is highly inflammable, it does not require one to have the skill or knowledge of an expert to appreciate what the result would be.  While contending that Dr. Sylvester was negligent in omitting to use drag-chains and a Horton inter- coupler, the appellants also contended that he should have realized that his action in compressing the oxygen-bag would set up an electrostatic charge; that in spite of all the efforts that are made to minimize the danger, discharges of static electricity are an ever-present hazard in an operating- room and the obvious precaution for the anaesthetist to have taken was to have removed the can from the immediate proximity of the boy’s head, or, failing that, to have prevented the heavy concentration of this gaseous mixture around the boy’s head by adopting the simple expedient of shutting off rather than merely “turning down” the flow of oxygen into the ether- can during the two or three minute period when measures were being taken to resuscitate the boy after the onset of the cyanotic condition.

On behalf of the defendant Sylvester it was argued that while electrostatic charges are a well-known operating-room hazard, the risk of explosion is not the only risk with which an anaesthetist must concern himself, his primary anxiety being the operation at hand and the preservation of his patient’s life; that he was entitled to assume that any static spark resulting from his operation of “bagging the boy” would be grounded through him and carried off through his shoes and through the grounded floor of the operating-room; that in following the course he did he was carrying out the standard recognized practice.  It was further submitted that the act of turning the oxygen-valve down and not turning it off completely was a deliberate exercise of judgment on the part of the anaesthetist which could not be negligence; that he required a mixture of oxygen and ether at once after the boy had been resuscitated so that the operation could proceed without delay and that even if the criticism of his failure to take the precautions suggested by the appellants’ counsel were well- founded, it could not be a foundation for liability unless the presence of a spark at that time and place was a foreseeable risk.  On this point counsel emphasizes the precautions taken by Dr. Sylvester when separating the Adams connector on the oxygen-bag from the Magill tube, in an attempt to equalize the electrical potential, and argues that he was justified in believing that he himself was effectively grounded through the floor.      It was urged on his behalf that the atmosphere in the room contained this gaseous mixture in any case and that it had not been established that the explosion would not have occurred even had the oxygen-valve not been left partly open and the tube from the oxygen-tank replaced in the ether-can.

Numerous cases were cited bearing upon the degree of care which may be expected from a medical practitioner.       While I have read and considered the cases cited, as well as other decisions, I do not think that any useful purpose will be served by my reviewing them here in detail.                                  The legal principles involved are plain enough but it is not always easy to apply them to particular circumstances.     Every medical practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care.                 He is bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same experience and standing, and if he holds himself out as a specialist, a higher degree of skill is required of him than of one who does not profess to be so qualified by special training and ability.

I do not believe that the standard of care required of a medical practitioner has been more clearly or succinctly stated than by Lord Hewart C.J. in Rex v. Bateman (1925), 41 T.L.R.

557 at 559:  “If a person holds himself out as possessing special skill and knowledge and he is consulted, as possessing such skill and knowledge, by or on behalf of a patient, he owes a duty to the patient to use due caution in undertaking the treatment. If he accepts the responsibility and undertakes the treatment and the patient submits to his direction and treatment accordingly, he owes a duty to the patient to use diligence, care, knowledge, skill and caution in administering the treatment …   The law requires a fair and reasonable standard of care and competence.”

In approaching a problem such as this it is well for a Court to caution itself, as was done by Denning L.J. in Roe v. Minister of Health et al.; Woolley v. Same, [1954] 2 Q.B. 66 at 83, [1954] 2 All E.R. 131, where that learned jurist stated: “It is so easy to be wise after the event and to condemn as negligence that which was only a misadventure.        We ought always to be on our guard against it, especially in cases against hospitals and doctors.        Medical science has conferred great benefits on mankind, but these benefits are attended by considerable risks.  Every surgical operation is attended by risks. We cannot  take the benefits without taking the risks. Every advance in technique is also attended by risks. Doctors, like the rest of us, have to learn by experience; and experience often teaches in a hard way.  Something goes wrong and shows up a weakness, and then it is put right.”

I also subscribe to the concluding words in his judgment at p. 86 where he says:  “But we should be doing a disservice to the community at large if we were to impose liability on hospitals and doctors for everything that happens to go wrong. Doctors would be led to think more of their own safety than of the good of their patients.  Initiative would be stifled and confidence shaken. A proper sense of proportion requires us to have regard to the conditions in which hospitals and doctors have to work.   We must insist on due care for the patient at every point, but we must not condemn as negligence that which is only a misadventure.”

Until the decision of the Court of Appeal in Holt v. Nesbitt, [1951] O.R. 601, [1951] 4 D.L.R. 478, the view prevailed in Ontario that the rule res ipsa loquitur had no application to malpractice cases, as had been stated categorically by McTague J.A. in Clark v. Wansbrough et al., [1940] O.W.N. 67 at 72, followed by Hope J. (as he then was) in Hughston v. Jost, [1943] O.W.N. 3, [1943] 1 D.L.R. 402. In Holt v. Nesbitt, supra, Laidlaw and Gibson JJ.A. expressly overruled Clark v. Wansbrough et al. and applied the rule.                                 This judgment was affirmed by the Supreme Court of Canada, sub nom. Nesbitt v. Holt [1953] 1 S.C.R. 143, [1953] 1 D.L.R. 671, where Rinfret C.J.C. said at pp. 145-6:

 

“I have read all the reported cases in England and Canada on the subject which were referred to in the reasons for judgment of the Court of Appeal or by counsel on the argument and, in addition, decisions in other jurisdictions.                     It is unnecessary to refer to them except to say it is impossible to agree with the statement of McTague J.A., sitting as a trial judge, in Clark v. Wansbrough, [1940] O.W.N. 67 at 72, that ‘The doctrine res ipsa loquitur, no matter how ingeniously put, has no application in malpractice cases.’    Res ipsa loquitur is not a doctrine but ‘The rule is a special case within the broader doctrine that courts act and are entitled to act upon the weight of the balance of probabilities.’ The Sisters of St. Joseph of the Diocese of London v. Fleming, [1938] S.C.R. 172 at 177 [[1938] 2 D.L.R. 417].    It may apply in malpractice cases depending upon the circumstances and for the reasons already given, it applies here.”

One may conceive of medical cases where something has gone wrong and that fact, taken by itself, may not be evidence of negligence.                  It must be borne in mind, however, that anaesthetized patients are deprived of their normal reflex action against burns and other injuries.    They are not aware of what is going on about them and the facts are peculiarly within the knowledge of the anaesthetist and others attending them. Dr. Sylvester testified that he had administered one thousand anaesthetics of this nature without having such a mishap occur and Dr. Nichols, the senior anaesthetist at the Stratford General Hospital, testified that he had used this particular technique, which was known as the “Flagg” technique, in a much larger number of cases without experiencing an explosion.                        Why then did it happen in this case?           Certainly the circumstances of the present case are such as to entitle the plaintiffs to invoke the rule res ipsa loquitur. In my opinion the facts here do speak for themselves and call upon the defendant Sylvester for an explanation.

When the rule applies its effect is to shift the onus to the defendant, but, as stated by Duff C.J.C. in United Motors Service, Incorporated v. Hutson et al., [1937] S.C.R. 294 at 297, [1937] 1 D.L.R. 737, 4 I.L.R. 91:                                      “Broadly speaking, in such cases, where the defendant produces an explanation equally consistent with negligence and with no negligence, the burden of establishing negligence still remains with the plaintiff.”

Has the defendant Sylvester given an explanation which is as consistent with the absence of negligence as with negligence of his part?             In my opinion he has not.                                I regard his conduct, on which I base this finding, not as conduct involving a matter of technical skill and experience but rather as an omission to take proper precautions in circumstances and in relation to a matter as to which any sensible laymen is competent to determine, without the assistance of expert evidence, whether such failure was negligence or not. The case presents a problem of proof which is not dissimilar to that which confronted the Courts of Manitoba in Anderson v. Chasney et al., 57 Man. R. 343, [1949] 2 W.W.R. 337, [1949] 4 D.L.R. 71, affirmed by the Supreme Court of Canada, sub nom. Chasney v. Anderson et al., [1950] 4 D.L.R. 223. The reasoning of Coyne J.A. in that case commends itself to me.  I refer to the following passage at p. 359 of his reasons for judgment:

“Dr. Chasney defends on the ground that it has not been his practice, and that it is not the usual practice of operators in the hospital in question and of some operators elsewhere, to take these precautions. But he took a chance in neglecting them.       Whether to adopt them or not, he says, is a matter of surgical skill and experience and the general practice of practitioners is conclusive.                  This, however, was not peculiarly a matter of such skill and experience. His counsel argued that if a general practice of surgeons is followed, negligence cannot be attributed, and that expert evidence is conclusive.

But if that were correct the expert witnesses would, in effect, be the jury to try the question of negligence.  That question, however, must continue to be one for the petit jury empanelled to try the case, if it is a jury case, and for the Court where it is not.        The experts remain witnesses to give their expert opinions in assistance of the jury or the court to determine whether there was negligence or not.           The opinions of the experts are not conclusive.          But when an operation itself is a complicated and critical one, and acquaintance with anatomy, physiology or other subjects of expert medical knowledge, skill and experience are essential, jury or court may not be justified in disregarding such opinions and reaching conclusions based on views contrary to those of the experts.

That is not the case here.  Effective antecedent precautions were not taken and ordinary experience of jurymen or court is sufficient to enable them to pass upon the question whether such conduct constituted negligence.                In my opinion it is clearly so in this case.”

When, as here, the anaesthetist was handling a dangerous substance which was known to be highly inflammable and he knew of the hazard arising from electrostatic sparks in an operating-room, the degree of care required from him was proportionately high and he was bound to take special precautions to prevent injury to his patient.  The very high degree of care which is to be exercised by persons who handle dangerous substances is well established and has been authoritatively laid down in the following cases: Dominion Natural Gas Company, Limited v. Collins et al., [1909] A.C. 640 at 646; The Citizens’ Light and Power Company v. Lepitre et ux. (1898), 29 S.C.R. 1, per Strong C.J. at p. 5; McArthur v. Dominion Cartridge Company, [1905] A.C. 72 at 77, per Lord Macnaghten; Hutson et al. v. United Motor Service Ltd., [1936] O.R. 225 at 230, [1936] 2 D.L.R. 390, 3 I.L.R. 162, affirmed ubi supra.

It would have been a simple matter for Dr. Sylvester to have removed the ether-can from the immediate proximity of the boy’s face if it had been necessary to have the oxygen continue to flow into the can during the resuscitation period, or, alternatively, if he chose to have the ether-can remain beside the boy’s head, he could and should have turned the oxygen- valve off completely so as to prevent oxygen from flowing into the ether and thus concentrating a heavy gaseous mixture so near to the boy’s head where the anaesthetist was engaged in a form of activity which was likely to give rise to an electrostatic spark and cause injury to the boy’s face.  Having regard to the well-recognized risk of such sparks being set off, he was not justified in failing to take one or the other of the precautions mentioned, and in taking the unnecessary chance that the grounded floor might not carry off any electrostatic charge generated by friction and discharged by separation of the vinyl plastic tube from the Adams connector.

The learned trial judge found that “The explosion was apparently caused by static electricity generated in the bag which had been filled with oxygen during the intermittent compressing of it for the purpose of forcing oxygen into the lungs of the boy”, and no witness has been able to advance any theory to the contrary.

In dealing with the precautions which in the submission of the plaintiffs’ counsel the defendant Sylvester ought to have taken, the learned trial judge stated:  “It has been suggested, in fact contended, on behalf of the plaintiffs, that Dr.

Sylvester should have removed the ether-can from the side of the boy’s head by placing it on the floor, and that he should have disconnected the oxygen-tank entirely from the ether-can, during the whole course of the procedure to force oxygen into the lungs following the arising of the cyanotic condition, so that no oxygen would have gone into and mixed with the ether in the can, thereby possibly causing an over-supply of oxygen in the can, or coming from the can.                    Doctors Nichols and Gordon disagreed with this suggestion, as well, of course, as Dr. Sylvester, and with this I am in accord because I think the explanation given by them meets the situation, namely, that in the emergency which arose, time was important as well as concentration on the necessity of rapidly giving pure oxygen to the boy and then later on continuing with the anaesthesia- induction before the pentothal sodium and slight administration of ether and oxygen mixture had worn off, so that the tonsillectomy operation could be proceeded with. Moreover, I do not think the evidence shows there would be such an appreciable additional amount of oxygen in the can as to create any greater risk.”

With respect, I think that the evidence supported the theory of the plaintiffs that the densest concentration of vapourized ether was in the immediate proximity of the boy’s head and it is a logical deduction that if the patient were not inhaling the mixture and oxygen was continuing to flow into the ether- can, there would be a heavier amassment of oxygenated ether in that area than during the process of induction of the substance into the patient’s lungs.  The reasons given by Dr. Sylvester for failing to adopt this simple expedient are wholly unconvincing and quite untenable. His evidence on this point is as follows:

“Q.  Yes, and I was wondering for instance is there any reason why you wouldn’t turn the oxygen off while you were administering the oxygen in the bag to the patient?

A.      There would be two reasons really. One would be — the first would be to be sure the oxygen was ready to go in with the ether immediately the main anaesthetic started.  The second was that that was just one more thing to do to delay your work.

“Q.  That is, you wanted to get him back as quickly as possible on the mixture of ether and oxygen?

A. That is correct, sir.

“Q.  And is there any reason why you would not turn off the oxygen?

A.    The only reason, it would be another manipulation; it would have taken time I needed to spend on that boy.”

 

After Dr. Sylvester had filled the rubber bag with oxygen he turned down the oxygen-valve.          It is not suggested that it would have taken appreciably more time for him to have turned off the valve entirely and if time was a factor, he could actually have saved time by not reinserting the oxygen-tube in the hole in the ether-can.                       When the doctor had forced oxygen into the boy’s lungs he recovered from the cyanotic condition at once and that emergency had been terminated.                The first reason assigned by Dr. Sylvester, namely, “to be sure that the oxygen was ready to go in with the ether immediately the main anaesthetic started”, is singularly strange in view of his admission that “it would normally take a second or two for the oxygen to mix with the ether after the tube is put into the can”.          The need for such urgency is not understandable since there was no immediate danger of the effects of the sodium pentothal wearing off. In any case, that drug had been administered only for the purpose of enabling the Magill tube to be inserted into the patient’s trachea and, in addition, the boy had been given ether-oxygen gas for 30 seconds after the injection of the sodium pentothal solution into his veins.                  The only other reason for such a hasty resumption of the process of administering the main anaesthetic would be to prevent reflex muscular activity, but surely that would only assume importance after the surgeon had commenced to perform the operation, when a movement in response to the surgeon’s actions might be dangerous to the patient.        Here, however, the surgeon had not even begun to operate.         The defendant has not shown that any emergency existed which would make one, two or even three seconds so vital that the necessary time could not have been appropriated to the taking of the obvious precautions that have been indicated.

I am unable to give any weight to the defence that Dr. Sylvester was said to be following his general or approved practice in pursuing the course of action outlined by him.  He did not lay any particular stress on the practice of turning the oxygen down rather than turning it off completely and it is not without significance that neither Dr. Gordon nor Dr. Nichols was invited to comment on the wisdom or unwisdom of leaving the oxygen-valve partly open.

Even if it had been established that what was done by the anaesthetist was in accordance with “standard practice”, such evidence is not necessarily to be taken as conclusive on an issue of negligence, particularly where the so-called standard practice related to something which was not essentially conduct requiring special medical skill and training either for its performance or a proper understanding of it. This was the view of the Court of Appeal of Manitoba in Anderson v. Chasney et al., supra, and reference may also be made on this point in its broader and more general aspects to Bank of Montreal v. Dominion Gresham Guarantee and Casualty Company, Limited, [1930] A.C. 659, [1930] 4 D.L.R. 689, [1930] 3 W.W.R. 331, 50 Que. K.B. 57, and Lloyds Bank, Limited v. E.B. Savory and Company, [1933] A.C. 201 at 232. If it was standard practice, it was not a safe practice and should not have been followed.

The Following excerpt from the evidence of Dr. Nichols, the chief anaesthetist at the Stratford General Hospital, who certainly was not disposed to be helpful to the plaintiffs, is significantly relevant to this question:

“Q.  Has it been your practice to remove the ether-can from the table during the process of resuscitation by bagging?

A. Sometimes.

“Q.  Yes, and was that done or was it not done with a view to reducing the hazard?

A.   It would be done chiefly with the idea of giving me sufficient room to work around the patient and satisfactorily accomplish my resuscitation.

“Q.  You say ‘chiefly’; for that reason?

A.  Yes.

“Q.  Have you also done it with a view to reducing the hazard?

A.  That may have been in the back of my mind but not as a primary motive.

“Q.  That is, you may feel that in the back of your mind?

A. I may have had it in the back of my mind.”

 

After mature consideration, I have reached the conclusion that on the weight and balance of probabilities emerging from the evidence, the defendant Sylvester has failed to produce an explanation which is equally consistent with negligence or no negligence on his part.               I am prepared to go beyond this and say that the record discloses affirmative evidence of negligence in the particular respects mentioned by me upon which the defendant Sylvester should have been found liable for the plaintiffs’ damages.

I would, therefore, direct that the appeal as against the defendant Sylvester be allowed with costs and that judgment issue in favour of the plaintiffs for the amount of damages assessed by the learned trial judge with costs.

The appeal as against the defendant Macklin is dismissed without costs and the appeal as against the defendants The Stratford General Hospital Trust and The Stratford General Hospital Corporation is dismissed with costs, if demanded.

 

Appeal allowed in part, with costs.

Solicitors for the plaintiffs, appellants: Thompson, Gregory, Anderson & Ehgoetz, Stratford.

Solicitors for the defendants Sylvester and Macklin, respondents:  Gowling, McTavish, Osborne & Henderson, Ottawa.

Solicitors for the defendant corporations, respondents: Mitchell & Hockin, London.