Holmes et al. v. Board of Hospital Trustees of City of London et al.
17 O.R. (2d) 626
ONTARIO
ONTARIO
HIGH COURT OF JUSTICE
ROBINS, J.
12TH OCTOBER 1977.
Negligence — Proof — Res ipsa loquitur — Medical malpractice action — Defendant anaesthetist responsible for artificial ventilation of plaintiff during simple medical procedure — Method chosen involving placing needle into central air space of trachea and injecting jets of oxygen to support patient’s respiratory system — Plaintiff suffering massive tissue emphysema — Whether maxim res ipsa loquitur applicable — Effect on burden of proof — Whether defendant’s explanation consistent with no negligence on his part.
Physicians and surgeons — Liability to patient — Informed consent — Defendant anaesthetist responsible for artificial ventilation of plaintiff during simple medical procedure — Method chosen involving placing needle into central air space of trachea and injecting jets of oxygen to support patient’s respiratory system — Plaintiff suffering massive tissue emphysema — Risk of emphysema avoidable if proper care used in placing needle — Whether doctor obliged to inform patient of risks of his possible negligence.
Physicians and surgeons — Negligence — Standard of care — Plaintiff suffering massive tissue emphysema during minor medical procedure — Plaintiff placed in intensive care unit under care of defendant doctors — Unknown to defendants,
plaintiff slowly developing spinal infection — Defendants ordering X-rays, which disclosed infection, but not looking at them until after infection had resulted in paralysis — Whether defendants negligent.
The plaintiff, who had been experiencing hoarseness in her throat, was admitted as an out-patient to the defendant hospital in order that the defendant, Dr. M, an ear, nose and throat specialist, could, by means of simple medical procedure, examine the interior of her voice-box. As a preliminary matter, the procedure required that a general anaesthetic and a muscle relaxant be given to the plaintiff by the defendant, Dr. D, an anaesthetist. As this would affect her respiratory muscles and render the plaintiff incapable of breathing spontaneously on her own, Dr. D was responsible for her artificial ventilation. There were a number of methods of artificial ventilation available to Dr. D. He chose one called transtracheal ventilation, which at that time was a new method not in common use. This ventilation method involved placing a needle into the central air space of the trachea and then injecting jets of high-pressured oxygen through it to support the patient’s respiratory system. If the jets discharged into the central air space of the trachea the technique was safe, but if they did not, massive tissue emphysema would occur. Dr. D initiated the transtracheal ventilation method but discontinued it when he discovered that the plaintiff showed signs of pronounced tissue emphysema. X-rays were taken which disclosed massive tissue emphysema about the plaintiff’s chest and neck. The plaintiff was transferred to the intensive care unit where she remained for over two weeks. During this time she was under the care of the defendant, Dr. M. Because of her continuing complaints of severe neck and shoulder pain, Dr. M brought the defendant Dr. S, a specialist in internal medicine, into the case. During this period, unknown to Drs. M and S, as a result of the tissue emphysema, the plaintiff was slowly developing a spinal infection. The plaintiff’s condition deteriorated and Drs. M and S ordered cervical X-rays. The X-rays showed the developing infection and that the plaintiff’s condition was emergent, but neither doctor looked at the X-rays until five days later, by which time the plaintiff had suffered irreversible quadriparesis, a form of paralysis.
In an action by the plaintiff and her husband against the three doctors and the hospital, Drs. M and S claimed contribution and indemnity from the hospital. Held, there should be judgment for the plaintiffs against the three doctors, and the plaintiffs’ action, and the two doctors’ claim over, against the hospital should be dismissed.
In medical malpractice actions as in civil actions generally the burden of proof is on the plaintiff; it is for the patient to establish that the doctor fell below the standard of care required of him in the circumstances. The onus is met if on the evidence the plaintiff is able to satisfy the Court not beyond a shadow of a doubt but on a balance of probabilities that the defendant was guilty of negligence. The fact that a medical procedure is unsuccessful does not impose liability; unfavourable consequences are not necessarily synonymous with negligence. Medicine is not an exact science and a doctor does not insure satisfactory results or a patient’s good health; in medical procedures untoward results may occur even when the highest possible degree of skill and care have been applied.
However, the claim against the anaesthetist was one to which the maxim res ipsa loquitur applied. The injurious event in the ordinary course of things would probably not have occurred if the defendant had acted in accordance with the requisite duty of care. The consequences of the anaesthetic were not such as normally would have followed if the anaesthetist had exercised due care. The fact of the happening was a piece of circumstantial evidence justifying an inference of the defendant’s negligence. The weight to be given that inference, like that to be given any other circumstantial evidence, depends on the particular factual circumstances of the case.
The strength of the inference may vary: it may be very strong or it may be sufficiently potent only to present a prima facie case and prevent the plaintiff from being non-suited; the inference of the accident “may speak in a whisper or cry out loud”. The evidence that the defendant must adduce depends on the inference raised against him. But the burden of proof remains with the plaintiff throughout; res ipsa loquitur does not shift the onus to the defendant or create a legal presumption in favour of the plaintiff which the defendant must disprove before he can escape liability. At the end of the trial the Court must decide whether on all the evidence before it the plaintiff has on the balance of probabilities established the defendant’s negligence. If the scales are not tilted in favour of the plaintiff the defendant must be exonerated. In this case, Dr. D did not put forward an explanation consistent with no negligence on his part and, therefore, the plaintiff had made out a case of negligence against him on a balance of probabilities.
In view of the finding of negligence on Dr. D’s part, the Court need consider only briefly the allegation that the plaintiff did not give her “informed consent” to the use of the transtracheal ventilation technique. The risks associated with the transtracheal ventilation technique are readily avoidable if proper care is exercised in the placement and fixation of the needle. Where care is exercised the risks are so improbable as not to be material and as such their disclosure is not essential to an informed decision to undergo the operation. A doctor is not obliged to inform a patient of the risks of his possible negligence.
As for Dr. M and Dr. S, they were negligent in failing to read the X-rays for five days after they were available. They failed properly to inform themselves of factual data which they had recognized and identified as pertinent and necessary to the diagnosis of the plaintiff’s condition and which they knew was available. As a result, steps were not taken which could have been taken and which might have made a significant difference to the plaintiff. Her condition was permanently worse and the negligence of the doctors must be held to have contributed to it.
There was no case against the hospital. The hospital was not the employer of the defendant doctors and was not vicariously responsible for their negligence. The claim over against the hospital by Dr. M and Dr. S was based on the alleged failure of the nursing staff to observe properly and report to the medical doctors the complaints and deteriorating condition of the plaintiff. The evidence did not support the allegation. The nurses’ notes constituted an adequate record of the relevant findings in respect to the patient.
[Crits et al. v. Sylvester et al., [1956] O.R. 132, 1 D.L.R. (2d) 502; Wilson v. Swanson, [1956] S.C.R. 804, 5 D.L.R. (2d) 113; Kelly v. Hazlett (1976), 15 O.R. (2d) 290, 75 D.L.R. (3d) 536, refd to]
ACTION for damages for personal injuries against a hospital and three doctors; CLAIM OVER by two of the doctors against the hospital for contribution and indemnity.
H. E. Stafford, Q.C., and C. Ewert, for plaintiffs.
H. W. Hockin, Q.C., for Board of Hospital Trustees.
D. K. Laidlaw, Q.C., and C. L. Campbell, for Drs. MacRae, Diamond and Smith.
ROBINS, J.:– Before the events which gave rise to this lawsuit the plaintiff Jessie Holmes was a bright, active St. Thomas woman, 50 years of age, in relatively good health with a lively sense of humour. The wife of the head of the guidance department of a local secondary school and mother of two grown children, she was deeply involved in the affairs of her community through her church work, as a Y.W.C.A. board member, as a teacher of retarded children and, perhaps most notably, as an active participant in amateur theatre.
On October 28, 1971, she was admitted as an out-patient to the Victoria Hospital in London for a simple medical procedure. She had been experiencing a marked hoarseness in her throat which she thought was due to strain placed on her voice during theatrical performances earlier in the year. The worrisome persistence of this condition led her family physician to refer her to an ear, nose and throat specialist in London. He recommended she have a micro- laryngoscopy so that he might thoroughly examine the interior of her voice-box. The entire procedure she was told, including the time needed for preparation and recovery, would take less than half a day. On entering the hospital on the morning of the 28th, Mrs. Holmes, reassured by her understanding that the process would not be a “gruelling” one, was in a cheerful casual mood fully expecting to return home later in the day. Tragically, she has not returned home since. As a result of what happened to her that day in little more than two weeks she was a quadriplegic. Today, almost six years later, she remains profoundly disabled requiring constant care and supervision and is confined forever to a wheelchair.
Mrs. Holmes brings this action for damages against the Victoria Hospital and three medical practitioners — Dr. M. J. Diamond, an anaesthetist, Dr. E. E. MacRae, an ear, nose and throat specialist and Dr. Donald R. Smith, a specialist in internal medicine — claiming that her injuries are the result of their negligence. The action as against a number of other defendants named in the writ has been discontinued.
In order to determine whether the defendants or any of them are responsible in law for the unfortunate changes which have taken place in this plaintiff, it is important to trace the course of events from the time of her admission to hospital to at least November 15, 1971. It is convenient to do so by considering first, the events of October 28, 1971, and, second, those of October 29th to November 15, 1971.
October 28, 1971 — The anaesthetic
Following admission to Victoria Hospital Mrs. Holmes was asked by the attending nurse to read and sign a consent form by which she “requested and consented” to the planned micro- laryngoscopy as well as to the administration of any medications and anaesthetics for the purpose of this procedure and to “such further or alternative operative measures as may be found necessary during the course of such operation or procedure”. She signed and, while no explanations were given her at the time, has testified that there was nothing in the consent form she did not understand. At the same time she completed and signed a “pre-anaesthetic patient questionnaire” in which she fairly set out her prior illnesses and drug reactions. Before being taken to the operating-room she was examined by her ear, nose and throat specialist, the defendant Dr. MacRae, who completed her history and told her, as he had earlier, that she would receive a general anaesthetic. She does not recollect seeing or speaking to the anaesthetist, the defendant Dr. Diamond, at the time. He did not testify at trial but on examination for discovery said he spoke to Mrs. Holmes prior to the anaesthesia, reviewed with her the pre-anaesthetic questionnaire, and told her that he was “going to put her to sleep with a little prick in her arm and that when she woke up it would be all over”. Nothing was said about the details of the anticipated procedure, its risks, its state of development, or about his prior experience in administering the particular procedures he intended to employ that day.
The technique of miscroscopic laryngoscopy (or micro- laryngoscopy) involves the use of a direct laryngoscope and an operating microscope; the laryngoscope (a round rigid tube) is lowered down the air passage behind the patient’s tongue and positioned with the aid of direct visualization through the tube in the area immediately above the vocal chords; the microscope is then employed to provide the surgeon with an enhanced view of the operative area. An examination of this nature requires that the patient be wholly relaxed and her vocal chords in a flaccid or open state so that no gag response is evoked by the laryngoscope. To achieve this condition the patient is anaesthetized with an intravenous injection of pentothal followed by a dose of a muscle relaxant anectine. As this affects the respiratory muscles and renders the patient incapable of breathing spontaneously on her own the anaesthetist becomes responsible for her artificial ventilation. Since the complications in this case arose out of the ventilation procedure it is necessary for me to review it in some detail.
There are a number of methods of artificial ventilation available to an anaesthetist. Dr. Diamond chose to use one called “transtracheal ventilation” which in October, 1971, was a new method not in common use. Indeed, because the technique had then only recently been developed by Dr. W. E. Spoerel, Professor of Anaesthesia at the University of Western Ontario with which Victoria Hospital is associated as a teaching hospital, it was not in use anywhere in Canada other than at Victoria Hospital in London. Dr. Spoerel is the recognized authority on this method of artificial ventilation and his papers are considered definitive of the standards and practices to be adhered to in its administration. Primarily the procedure is intended for laryngoscopic examinations, its major advantage being that it provides the surgeon access to the larynx unobstructed by the anaesthetic equipment used in other procedures, in short, permitting him an open field within which to do his work.
A transtracheal ventilation, in brief, involves placing a cannula into the central air space of the trachea and then injecting jets of high-pressured gas through it to support the patient’s respiratory system. More particularly, a needle assembly consisting of a flexible plastic cannula with a rigid inner steel needle or stilette is introduced by the anaesthetist into the trachea by puncturing it just below the cricoid cartilage, a ring structure in the neck surrounding the air passage. Unlike most ventilation techniques this is a “blind” technique and proper placement of the tip of the needle assembly in the trachea is ascertained, in addition to a knowledge of anatomy, by the aspiration of air into a tight- fitting syringe. Frequent aspirations are called for so as to ensure that the needle tip is actually located in the lumen of the trachea. When the needle assembly is in its final position and the anaesthetist has tested and is satisfied by repeated aspirations that it in fact lies freely in the lumen of the trachea, the inner stilette is fully withdrawn and the assembly is connected by a locking device (a Luerlock fitting) to the outflow line of a ventilator (a Bird Mark II ventilator) which is interposed between the reducing valve at the oxygen cylinder and the pressure line leading to the jet. This supplies intermittent jets of pressurized oxygen which draws or entrains air along with it in the wider tracheal passage to secure a normal positive pressure in the lung and adequate ventilation or breathing in the patient. There is a lineal relationship between the pressure applied to a given jet and the pressure obtained in the lung; a regulating valve with gauges permits adjustment of the pressure levels. The Bird Mark II ventilator provides an automatic interruption of the jet but if this is not required the anaesthetist may exercise manual control of the timing and ventilation. As with all ventilation techniques the patient spontaneously expirates and chest movement is expected.
While in 1971 this technique was new the principles upon which it was based and the steps involved in administering it were not. Puncturing the trachea to instil anaesthetic agents was an established technique as was ventilation through intermittent positive pressure. What constituted the new development was the combination of introducing pressurized gas through a transtracheal needle. But as I understand the evidence there is nothing required of an anaesthetist in performing this type of ventilation which exceeds the knowledge expected of a competent and qualified anaesthetist or which requires any training or expertise of him beyond that otherwise included in his specialty. In other words, there appears no reason why an anaesthetist with knowledge of the procedure should not be able to administer it successfully.
The risks included in the technique are predictable — if the jet discharges into the tracheal lumen the technique is safe but if the jet is not inside the tracheal lumen massive tissue emphysema will occur. This is the evidence of Dr. G. G. Johnson, a highly-qualified anaesthetist and professor at the University of Ottawa who testified on the plaintiff’s behalf. His evidence, and it is based on a detailed study of the procedure, is confirmatory of statements appearing in three papers authored or co-authored by Dr. Spoerel which were introduced as exhibits. For the sake of both clarity and convenience I shall reproduce the statements, the first two of which appeared in print in 1971, the third in 1973.
[1.] Tissue emphysema, caused by escape of air from the puncture hole after removal of the needle, should cause little difficulty. It can be minimized by gentle digital pressure at the puncture site. Usually the puncture will seal fairly quickly. If the needle accidentally slips out of the trachea during ventilation, massive tissue emphysema will
result if this is not immediately recognized. It is also conceivable that, during introduction, the needle could be accidentally pushed through the trachea into the oesophagus, resulting in rapid gastric dilatation when ventilation is started. These complications should be avoidable if proper care is exercised in placement and fixation of the needle.
(British Journal of Anaesthesia (1971) 43, 932.)
[2.] Although puncture of the trachea, either through the cricothyroid membrane or just below the cricoid is a simple procedure, meticulous care must be exercised to ascertain that in its final position, the tip of the needle is free within the lumen of the trachea. The easy aspiration of air into a syringe securely attached to the hub of the needle, indicates the entrance of the tip of the needle into the trachea and this aspiration test must be carried out after the needle has been taped into its final position and before the commencement of ventilation. If the cannula is outside the trachea, a massive tissue emphysema will develop within very few breaths. Depending on the position of the needle, this may not only result in emphysema of the tissues of the head and neck and upper chest but can result in severe mediastinal emphysema and pneumothorax. It is therefore important that the patient be closely observed during the first inflation to ascertain that there is a chest expansion commensurate with passive inflation of the lungs and, if absent, the needle should be checked again for free aspiration.
(Archives of Anaesthesiology and Resuscitation (1971), vol. 1, p. 20.)
[3.] The only major complication is massive tissue emphysema which can occur either when the jet is not inside the tracheal lumen or when the outflow of gas from the glottis is obstructed while the ventilation continues …
Both techniques are safe as long as the jet discharges into the trachea. It is therefore important to adhere to the technique in detail, particularly with the transtracheal approach where a tightly fitting syringe and repeated aspirations when the needle is in its final position are imperative to make sure that the needle tip is in fact freely in the lumen of the trachea.
(Canadian Anaesthetists Society Journal (1973), vol. 20, p. 369).
I should note, much was said of this, that on the occasion in question Dr. Diamond was administering this ventilation procedure for the first time. He had not previously used the method himself but had observed its procedure on perhaps five occasions, had read the medical literature, had spoken with Dr. Spoerel about it and presumably was aware of the material contained in at least his first two papers.
Some conflict exists as to the manner in which the procedure was selected for use in Mrs. Holmes’ case. Dr. Diamond says he discussed the matter with Dr. MacRae and obtained his agreement to it; Dr. MacRae (who, like Dr. Diamond did not testify at trial) says in his discovery evidence that he was unaware of the ventilation method to be used and left this entirely to the anaesthetist. While the conflict on this point may be regrettable it does not affect the liability issue. I am satisfied, and the case was not argued otherwise, that in this sphere the anaesthetist was captain of the ship — if there was error in the choice of the procedure adopted or in its administration the professional responsibility is his.
What then happened According to Dr. Diamond, and it must be observed that his discovery evidence constitutes for obvious reasons the only direct evidence of the steps taken by him and the observations noted, after he had the cannula in place he attached the Bird Mark II ventilator with its tubing to the hub of the cannula; the ventilator had been set at the desired expiration and inspiration cycle and the required pressure had been fixed; he turned the equipment on and made the following observations: (i) on the first inspiration the sound that the machine made was not the sound expected and there was no chest movement; (ii) on the second cycle there was no chest movement; (iii) as soon as the third cycle started he noticed “puffiness of the neck”; (iv) on the third cycle there was no chest movement and “in the hope that perhaps it had sorted itself out in some way I left it [the automatic ventilator] on just at the start of the third breath”.
By the time he discontinued the ventilation attempt Mrs. Holmes had pronounced tissue emphysema. Her neck, face, eyelids and upper chest were swollen and upon examination by laryngoscope “all the loose soft tissues” of the mouth, pharynx and other elements of the oral cavity were found distended and “distorted with oxygen that had been injected by the injector” during the ventilation.
A number of attempts were made involving considerable manipulation of Mrs. Holmes’ neck to provide emergency ventilation. They were unsuccessful and in order to restore an adequate airway Dr. MacRae had to perform a tracheotomy.
X-rays were then taken which disclosed massive tissue emphysema about Mrs. Holmes’ chest and neck. The left and right chest cavities contained pressurized gas (there was a tension “pneumothorax”) and the left lung was almost completely collapsed. Her mediastinal structures had been pushed to the right, her diaphragm significantly pushed down and inverted and her heart displaced. Some peritoneal air could also have been present. Dr. MacRae noted at the time: “Anaesthetic problems … resulting in mediastinal hyper-oxygenation and subcutaneous emphysema of neck — marked laryngeal swelling …”. The pneumothorax was aspirated by the insertion of a needle into the left side of the chest and the withdrawal of “oxygen”. Mrs. Holmes was then transferred to the intensive care unit (the ”I.C.U.”).
I shall review her subsequent progress later but at this stage I direct my attention back to the preparatory steps preceding the abortive ventilation I have just described. Here again the only available direct evidence is Dr. Diamond’s; Dr. MacRae evidently did not enter the operating room until after the attempt at ventilation had failed. Dr. Diamond said that he introduced the needle assembly through the cricothyroid membrane; advanced it at the prescribed 45degrees angle approximately one inch before retracting the inner stilette, tested the tip’s location by aspirating and injecting air; then removed the inner stilette entirely; next advanced the cannula a further one-half inch and attached a syringe to the hub of the cannula; he then attempted to aspirate air and, on his discovery evidence, did so successfully.
Dr. Johnson testified that the procedure described by Dr. Diamond deviated in a number of respects from the practice laid down by Dr. Spoerel. Some deviations were minor but he was critical of others which went to the ascertainment of the needle assembly’s position in the luminar air space of the trachea; he was critical in particular of the time the first test was made of the tip’s location;
If this is the first time air has been aspired then it is late in the procedure — its late in the placement of the cannula — it should have been carried out prior to this time. It should have been carried out on puncture through the front wall of the trachea.
Further, that no syringe was attached prior to the introduction of the needle assembly; and that since the “warning signs” were up after the jet had commenced its second cycle the anaesthetist in his view should not have proceeded into a third cycle:
I don’t think you can wait for anything to sort itself out in machinery. These appliances will deliver continuous high pressure gas, and it is not going to sort anything out. If it is not in the correct position, it’s inevitable that the pressurized gases will produce more damage … its incumbent on the person carrying out the technique to act, to inspect the equipment and the placement of the cannula to make sure there is nothing wrong. I don’t think you can expect things to sort themselves out.
The decisive question of course remains: was the final placement of the cannula inside or outside the trachea If outside, it clearly must have been improperly or negligently placed and liability would follow; if inside, another explanation for the injuries must be sought.
In Dr. Johnson’s considered professional opinion the tip of the cannula “must have been outside the lumen of the trachea”. While it might have been caused by a laceration of the mucosa of the trachea at the time of placement of the needle assembly he did not think this likely. He gave reasons in support of his opinion which I need not detail.
Dr. W. P. Cockshott, a radiologist and head of the Department of Radiology of McMaster University, also gave expert testimony for the plaintiff. His opinion was the same as Dr. Johnson’s — the cannula was outside the trachea. From his study of the available material including particularly the X-rays of October 28th, he concluded that the emphysema resulted from the inadvertent placement of the tip of the cannula outside the trachea.
The opinions given by Drs. Johnson and Cockshott were, I am satisfied, tendered only after careful study and thorough analysis of Mrs. Holmes’ case; they withstood the test of vigorous and penetrating cross-examination; there were no contrary or conflicting opinions offered by the defence; and their evidence impressed me as fair, reasonable and impartial. I have no hesitation in accepting the opinions of these doctors.
The position of the defence on this branch of the case is based on a theory enunciated for the first time in these proceedings during cross-examination of the specialists to whom I have just referred. If, the theory goes, Dr. Diamond was, as he said on discovery, able to aspirate when the cannula was positioned, it can reasonably be concluded that its tip was in the trachea; this being so Mrs. Holmes’ massive tissue emphysema and tension pneumothorax cannot be attributed to an improper placement outside the trachea but can be better explained as being caused by a pneumothorax induced by the application of positive pressure. Dr. Johnson and Dr. Cockshott agree that an induced pneumothorax is a phenomena which can result from positive pressure. Accordingly, the defence argues, the complications suffered by Mrs. Holmes may not have been as a consequence of the improper or negligent placement of the cannula but may, on this theory, have happened even though the cannula was properly in the trachea as indicated by Dr. Diamond’s ability to aspirate. The defence adduced evidence of a situation in which such an induced pneumothorax is said to have occurred during an endotracheal jet ventilation, that is, one in which positive pressure is introduced through a catheter placed through either the nose or the mouth into the larynx. No evidence was adduced to support the suggestion that in the specific circumstances of Mrs. Holmes’ case her complications of October 28th were caused or were likely to have been caused by an induced pneumothorax or that any objective findings or information supported such a conclusion.
That an induced pneumothorax can conceivably occur whenever positive pressure is applied was, as I have said, acknowledged by Dr. Johnson and Dr. Cockshott. But neither of them was prepared to concede that that is what happened in this case; both thought it a medical possibility but ranked it remote and highly unlikely; both advanced medical and scientific reasons to support their conclusion that in this particular case the emphysema was caused not by an induced pneumothorax but by improper placement of the cannula; both said in effect as one of them put it “placement outside the trachea best explains the picture”. In my perception of the doctors’ evidence on this subject, both from what they said and the way in which they said it, they were highly sceptical of the possibility of an induced pneumothorax in this situation. I am satisfied that neither of them believed Mrs. Holmes’ complications to have been so caused.
In so far as the evidence of the case in which an induced pneumothorax happened under positive pressure ventilation is concerned, I find it of little assistance. There are obvious distinctions between the experience there and the present case. Indeed those distinctions which I shall not attempt to analyse (for example, recorded chest movement, X-ray readings, lung condition, procedural differences, doctors’ reaction) are in my opinion supportive of the views expressed by the plaintiff’s experts and do not lend credibility to the theory advanced by the defence as an explanation for Mrs. Holmes’ trouble.
Before moving to the legal issues there are several conversations in evidence to which I should make reference. I think them significant. On October 28th, Dr. MacRae informed Mr. Holmes that his wife had been “blown up”; that he would be shocked at her appearance; that there had been a “mechanical accident”. Dr. Diamond also told Mr. Holmes that day there had been a “mechanical” or ”procedural” “malfunction” in the anaesthetizing process and that “I would be disturbed by the appearance of my wife”. What the mechanical accident was, what procedural malfunction took place, they did not explain to Mr. Holmes or to the Court. It seems clear that the pressure equipment was in proper order and it is not suggested that it caused the ventilation failure; it is clear also that if the locking device, the Luerlock, was not secure or securely fastened, aspiration could take place even though the tip of the cannula was not in the trachea but was embedded in tissue outside the trachea. In the latter situation Dr. Diamond could have aspirated even though the cannula was outside the trachea, in which case the premise of the defence theory would be obviously fallacious. Whether the problems the doctors had in mind in these conversations related to the locking device or any difficulty experienced in respect to it is not clear.
But Dr. Diamond had one further and less enigmatic discussion with Mr. Holmes which casts light on what happened. Mr. Holmes, two days later, on October 30th, understandably enough sought out Dr. Diamond to inquire further about his wife and obtain a more detailed explanation of what happened to her. Dr. Diamond outlined the ventilation procedure to him and “indicated to me that the needle had gone through into … the surrounding tissue … and this is what had caused my wife to blow up”. That statement made so soon after the event and certainly at a time when the extent of Mrs. Holmes’ troubles were not known, remains uncontradicted. I shall come back to it.
Since none of the events following October 28th involve any allegation against Dr. Diamond, I propose at this juncture to consider the case against him.
The case against Dr. Diamond The case against Dr. Diamond rests on two allegations — the first, and most important, that he was negligent in the performance of the transtracheal ventilation, the second, that he failed to provide the plaintiff with adequate information and advice about the ventilation procedure and consequently did not have her “informed consent” to its use.
Dealing with the negligence issue, a physician is liable for injury to a patient caused by his failure to apply that degree of skill, care and learning ordinarily possessed and exercised by other physicians in similar circumstances. Where a physician holds himself out as possessing a special skill and learning in a particular branch of medicine he is required to bring to the discharge of his duty to a patient employing him as such a specialist not merely the skill and learning of physicians generally but that special degree of skill and learning held by physicians in that specialty.
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.”
(Crits et al. v. Sylvester et al., [1956] O.R. 132 at p. 143, 1 D.L.R. (2d) 502 at p. 508 (C.A.), per Schroeder, J.A.; affirmed [1956] S.C.R. 991, 5 D.L.R. (2d) 601.) What the surgeon … undertakes with the patient is that he possesses the skill, knowledge and judgment of the generality or average of the special group or class of technicians to which he belongs and will faithfully exercise them.
(Wilson v. Swanson, [1956] S.C.R. 804 at p. 811, 5 D.L.R. (2d) 113 at . 119 (S.C.C.), per Rand, J.)
In medical malpractice actions as in civil actions generally the burden of proof is on the plaintiff; it is for the patient to establish that the doctor fell below the standard of care required of him in the circumstances. The onus is met if on the evidence the plaintiff is able to satisfy the Court not beyond a shadow of a doubt but on the balance of probabilities that the defendant was guilty of negligence. The fact that a medical procedure is unsuccessful does not impose liability; unfavourable consequences are not necessarily synonymous with negligence. Medicine is not an exact science and a doctor does not ensure satisfactory results or a patient’s good health; in medical procedures untoward results may occur even when the highest possible degree of skill and care have been applied.
The present case, in so far as the claim against the anaesthetist is concerned, is, it is common ground, one of a class of cases to which the maxim res ipsa loquitur applies. “The thing speaks for itself” in this sense: the factual nature of the injurious event of October 28th on the evidence before me is such that in the ordinary course of things it would probably not have occurred if the defendant had acted in accordance with the requisite duty of care; or, put another way, the consequences of the anaesthetic were not such as normally would have followed if the anaesthetist had exercised due care. Because the plaintiff may invoke res ipsa loquitur in this case she is assisted in proving her claim — even though she may be unable to demonstrate its precise cause the happening of the accident in itself, the res, is evidence from which negligence on the part of the doctor in control may be reasonably inferred.
It is, as I have said, not questioned that this is a res ipsa loquitur situation; but a question has arisen as to the practical procedural effect of res ipsa loquitur on the burden of proof. The fact of the happening is, as I view res ipsa loquitur, simply a piece of circumstantial evidence justifying an inference of the defendant’s negligence. The weight to be given that inference, like that to be given any other circumstantial evidence, will depend on the particular factual circumstances of the case. The strength of the inference may vary: it may be very strong or it may be sufficiently potent only to present a prima facie case and prevent the plaintiff from being non-suited; the inference of the accident in Professor Fleming’s phrase “may speak in a whisper or cry out aloud”. What evidence, if any, the defendant need adduce will depend on the strength of the inference raised against him. The burden of proof remains with the plaintiff throughout; res ipsa loquitur does not shift the onus to the defendant or create a legal presumption in favour of the plaintiff which the defendant must disprove before he can escape liability. At the end of the trial the Court must decide whether on all the evidence before it the plaintiff has on the balance of probabilities established the defendant’s negligence. If the scales are not tilted in favour of the plaintiff the defendant must be exonerated: see generally, Fleming, Law of Torts, 5th ed. (1977), pp. 302-13; see also, Wright, “Res Ipsa Loquitur”, Law Society of Upper Canada, Special Lectures — Evidence (1955), pp. 122-31; for a recent review and compilation of the numerous authorities on the subject, see Schiff “A Res Ipsa Loquitur Nutshell” (1976), 26 U. of T.L.J., p. 451.
With these legal considerations in mind, and I comment that they are in basic accord with the submissions of defence counsel on the question of burden of proof, I return to examine the question of Dr. Diamond’s liability. His defence to the action is simple enough. True, it is said, this is a situation to which res ipsa loquitur applies, the happening is of such a nature as in itself to raise an inference of negligence, but,
the argument proceeds, the doctor has afforded an explanation consistent with no negligence on his part and, therefore, the plaintiff cannot be held to have made out a case on the balance of probabilities. The explanation, to repeat it, is that the subcutaneous emphysema and tension pneumothorax suffered by Mrs. Holmes resulted from an induced pneumothorax under positive pressure ventilation; on this theory the accident was not caused by any want of care on the anaesthetist’s part. But implicit in and fundamental to the theory is the essential fact that the tip of the cannula was correctly placed in the patient’s windpipe, in the lumen of the trachea; if this fact is not established the theory is clearly fallacious. It is contended that the fact has been established by the doctor’s discovery evidence where, in describing the steps taken by him, he said he aspirated for air after the cannula was positioned. This discovery evidence, having been read into the record by counsel for the plaintiff, must, it is argued, be accepted by the Court and once accepted the conclusion that follows is that the cannula was properly placed or the doctor was justified in so believing.
This explanation, I think significant to note, was not offered to the plaintiff before this trial. Different explanations were given prior to the action and still others on discovery. When the current theory was first evolved was not divulged in evidence but this much is certain — Dr. Diamond himself has never suggested the explanation on which he now bases his defence as a way in which the accident might have happened. He, it must be remembered, is a highly-qualified and experienced specialist in anaesthesiology; if the explanation was a reasonable or realistic one having regard to what he did and observed on October 28th, even if it was only an improbable or remote one, surely it is not unreasonable to expect that he would have mentioned it at the time or even later. Three years elapsed before his examination for discovery and yet even then in responding to questions seeking his explanation for what went wrong this theory was not tendered. He could not have been unaware of the possibility of an induced pneumothorax or circumstances in which one might occur during an anaesthetic; this is within his expertise. The only reasonable inference that can be drawn, and the one I am compelled to accept, is that he did not present this explanation earlier because he did not believe it to be one consistent with the facts as he knew them or as constituting a proper interpretation of the ventilation failure he witnessed. Even at trial the doctor was not prepared to enter the witness-box and proffer the theory. Yet this Court is asked to accept as an exculpating explanation one the anaesthetist himself is unprepared or unwilling to say is in his opinion applicable in the case of Mrs. Holmes.
The discovery evidence upon which the theory of the defence is founded, that there was aspiration at the critical point in the procedure, is, in my opinion in the light of all the evidence before me, highly improbable. Discovery evidence need not and should not be viewed in isolation; it must be examined in the context of the entire record: Reti et al. v. Fox et al. (1976), 2 C.P.C. 62 (Ont.C.A.). In that context I think it very doubtful, indeed inherently improbable, that the doctor aspirated at the right time. If he did then none the less on my view of the evidence it is most likely that he was able to do so because of a failure to properly or adequately secure the locking device. I do not accept this piece of discovery evidence as determinative of the case. In my opinion the defendant has not established the fact he asserts entitled him to exoneration and defeats the plaintiff’s claim. I am convinced upon my evaluation of the evidence, the expert testimony and the proposition offered as explanation, that the tip of the needle assembly or cannula following withdrawal of the inner stilette was probably, and I think the probability very high, improperly placed outside the trachea.
The statement of Dr. Diamond to Mr. Holmes that his wife had been “blown up” because the needle had gone into the surrounding tissue stands in direct contradiction of the discovery evidence now pressed. The doctor’s statement made, it is not unimportant to note, before litigation was anticipated is entirely in accord with the expert opinions. That statement, if it is not an admission, in itself discredits the explanation advanced on behalf of the doctor; in light of it, it is not possible to accept the discovery evidence. The doctor could have testified had he wished at trial and amplified or explained the meaning of his words to Mr. Holmes both in the statement to which I have just referred and in other statements attributing the accident to a mechanical malfunction. As matters stand Dr. Diamond acknowledged on October 30, 1971, the very fact he seeks in his present explanation to deny — the location of the needle in the surrounding tissue. The evidence is too strong for me to avoid the conclusion that the explanation offered is neither credible nor plausible.
There are a number of other noteworthy considerations to be taken into account in deciding this case. There is the evidence of Drs. Johnson and Cockshott both of whom, for considered reasons, expressed the opinion that the cannula was probably embedded in tissue outside the trachea. And there is their firm rejection of the proposition that an induced pneumothorax caused Mrs. Holmes’ injury. It is significant also that the defence adduced no evidence to support the proposed explanation that the accident of October 28th could have happened to Mrs. Holmes not simply as a hypothetical matter or a matter of theory, but on the available evidence in the manner suggested.
There is the evidence of Dr. Diamond to the effect that “all the loose soft tissues of the oral cavity were distended with oxygen that had been injected by the injector”; he spoke of withdrawing ”oxygen” in aspirating the pneumothorax. His observations and Dr. MacRae’s (to which I referred earlier) lead to the conclusion that it was pressurized gas and not the usual air mixture which was introduced into the tissue planes dissecting and altering them to produce the massive tissue emphysema. If there had been an induced pneumothorax, a rupturing of a lung, the evidence indicates that it would have been an air mixture and not pressurized oxygen that would have escaped into the chest cavity. The evidence also indicates that in the case of an induced pneumothorax an attending physician could expect some chest movement whereas none was observed in this case.
There is also the fact that Dr. Diamond deviated in a number of respects from approved practice for transtracheal ventilation procedures. It may be that most of these items in themselves are of minor consequence but none the less their cumulative effect demonstrates a lack of caution and experience in the technique and points to an increased likelihood of error in the critical ascertainment of the cannula’s positioning.
The preponderating effect of the evidence satisfies me that Mrs. Holmes’ injuries of October 28, 1971, were unquestionably caused by Dr. Diamond’s negligence. The cogency of the happening is such that when weighed together with all of the evidence little doubt remains in my mind that the injuries were caused as a result of the negligent misplacement of the cannula outside the trachea. The applicability of the theory advanced by the defendant to Mrs. Holmes’ case is unsupported by the evidence. In my opinion no credible or plausible explanation has been advanced by the defendant of another way in which the injuries could have occurred without fault on his part; the mere fact that in certain circumstances (remote and unusual circumstances not even established to exist in this case) a particular result may occur without negligence does not constitute an answer to the convincing evidence of negligence before me in this case.
For these reasons I therefore find on the balance of probabilities that the defendant Dr. Diamond was negligent in the performance of the transtracheal ventilation on Mrs. Holmes.
In view of my finding of negligence I need consider only briefly the allegation that the plaintiff did not give her “informed consent” to the use of the transtracheal ventilation technique. The issue of informed consent has recently been carefully and exhaustively treated by my brother Morden in Kelly v. Hazlett (1976), 15 O.R. (2d) 290, 75 D.L.R. (3d) 536. At p. 310 O.R., p. 555 D.L.R. of the reasons, it is said:
The doctor’s general duty of care includes not only the duty to exercise due skill and competence in diagnosis and treatment but also to give reasonable information and advice to the patient. This latter duty is one of variable content depending on the circumstances of the case … In this case while the information may have been more complete I cannot hold that Dr. Diamond violated any legal obligation in proceeding to carry out general anaesthetic and ventilation of the plaintiff. The risks associated with the transtracheal ventilation technique are readily avoidable if proper care is exercised in the placement and fixation of the needle. Such risks are wholly consequential or collateral to the basic nature and character of the planned micro- laryngoscopy. Where care is exercised the risks are so improbable as not to be material and as such their disclosure is not essential to an informed decision to undergo the operation. A doctor, in short, is not obliged to inform a patient of the risks of his possible negligence.
Nor can I hold any violation of duty on the part of the anaesthetist in not informing the plaintiff of his experience in this particular ventilation procedure; its performance was entirely within the range of his competence and training.
Further, I find no fault in the selection of this method of ventilation; I do not agree with the submission, and the evidence does not establish that the plaintiff was being used at all for experimental purposes. I might add that if the evidence had established any appreciable risk or likelihood of induced pneumothorax being caused by this ventilation procedure or that Mrs. Holmes was a candidate for such result my opinion on the adequacy of the information and advice given her would not be the same.
October 29th to November 15th — The diagnosis
I turn now to the interval October 29, 1971, to November 15, 1971, to outline Mrs. Holmes’ medical history from admission to the I.C.U. to the onset of quadriparesis. It is germane to note in advance that her quadriparesis came about as a result of a spinal cord infection or more specifically, an epidural abscess secondary to a prevertebral facia abscess which destroyed the intravertebral disc at cervical 6-7 level. In all probability infective organisms were introduced into her body during the ventilation attempt likely by insertion of the needle into the tissue outside the trachea or perhaps during the subsequent emergency ventilation attempts or the tracheotomy; the infection must ultimately have been transmitted or borne to the epidural space, a small distance from the posterior of the trachea. Emphysema of the nature suffered by Mrs. Holmes clearly provides a rich and fertile medium for the development and spread of bacteria though, and this is equally clear, for abscesses to have developed as they did in the epidural space is a rare medical occurrence. In any event it is common ground that this is the probable sequence of events in this case.
Causation is not an issue and it was not disputed that if Dr. Diamond was negligent, his negligence would fix him with liability for the injuries eventually sustained. In exploring the events following the anaesthetic, as I now do, I direct my attention to the allegations of negligence of the other doctors in respect to their treatment and diagnosis of Mrs. Holmes and of course to whether there was any lack of care on their part which contributed to the injuries.
I can deal shortly with the first nine days of the period, that is, to and including November 6th. Mrs. Holmes was in the I.C.U. at this time and while her condition cannot be described as good, her general state was reflected by her husband when he said he was not then concerned about his wife’s progress. Her most pronounced and repeated complaints were of severe pain in her neck and shoulders, of upper back stiffness and aches and headaches. Medication including morphine was regularly given to allay such pain.
Mrs. Holmes, as I said earlier, was hospitalized under the care of Dr. MacRae and was not transferred from his care until November 15, 1971; he remained “the doctor in charge” until that date. But because of her continuing complaints of severe neck and shoulder pain, Dr. MacRae brought the defendant Dr.
Donald R. Smith into the case for “consultative and concurrent supportive care” as a specialist in internal medicine. Dr.
Smith testified that it was he who became responsible for treatment of the neck and shoulder pain and, as I understand his evidence, he assumed responsibility in respect to the part of the anatomy where the quadriplegia originated. Dr. MacRae’s subsequent treatment of Mrs. Holmes’ throat condition is not relevant or material to the issues in this case and on Dr. Smith’s evidence, none of her problems leading to the paralysis were within Dr. MacRae’s range of expertise. I interpret Dr. Smith’s evidence to intend that if there be liability for Mrs. Holmes’ spinal injuries the responsibility must be his and not Dr. MacRae’s. Whether this can be so in the light of Dr. MacRae’s actions and undertakings relating to Mrs. Holmes’ cervical spine is a question I shall consider later.
Dr. Smith first saw Mrs. Holmes on November 2nd, when he performed an examination complete enough to rule out any neurological problem evident to that date. His written report included an adequate history of the patient, referred to her earlier arthritis and by way of assessment attributed the aching in her upper back and about her shoulders to the positioning or manipulation of her head during the procedures of October 28th; he diagnosed a mild rheumatic arthritis and suggested “the possibility of hypothyroidism”. This latter suggestion appears based on findings similar to those made by her family physician prior to her admission to Victoria Hospital and, in view of his subsequent diagnosis, is important. But the assessment of the patient at this stage was unquestionably reasonable and, given the administration of antibiotics until November 9th, and the consequential slow development of the abscess which led to the paralysis, the diagnosed causes of the plaintiff’s pain at this point were in all likelihood the real causes. Dr. William Spaulding, a highly qualified specialist in internal medicine and professor at McMaster University who carefully considered the treatment and diagnosis of Mrs. Holmes, in giving evidence on her behalf acknowledged the assessment as reasonable.
Dr. Smith’s progress notes of November 4th, 5th and 7th, reveal as his opinion that Mrs. Holmes was “rather dramatic in her complaints”; “My impression this evening” he wrote on November 4th, “is of a large hysterical element” and, on November 5th, “remains dramatic”. She, in Dr. Smith’s view, was over-emphasizing her pain, a view he supported by reference to her medication programme and the absence, up to November 7th, of significant new developments. When new developments did occur, when a marked deterioration in her condition became evident and pointed to the need to reassess her symptoms, the doctor’s opinion that she was subject to such functional overlay clouded, I suspect, his view of his patient and his approach to her symptoms. I mention this not as an element of negligence but because the overlay constituted one of the “red herrings” in his subsequent assessment of Mrs. Holmes. I think it only proper to add that nothing in Mrs. Holmes’ lengthy subsequent medical history suggests her as being prone to exaggeration of pain; indeed she is clearly a woman of great courage and fortitude.
On November 4th Dr. Smith noted she “Obviously requires good x-rays of cervical and dorsal spine.” I underscore this observation which plainly perceives and identifies the need for good cervical X-rays; as matters developed, this is significant. But beyond concern that Mrs. Holmes continued to experience pain longer than the emphysema condition itself or the procedures to which she had been subjected appeared to warrant, up to and including November 6th, nothing occurred that could be considered alarming. By contrast in the days succeeding November 6th, her condition progressively deteriorated to the onset of quadriparesis on the 15th.
In order to trace what happened and seek to determine whether the doctors met the required standard of care, I turn to the nurses’ and doctors’ notes made after November 6th. First the nurses’ notes; I shall not reproduce them or quote them in detail. But I think it important to synopsize them in so far as they include entries, and there are many such, which direct attention to at least the possibility that the patient’s problems were neurological and caused by spinal cord dysfunction — a possibility which, because an abscess in the epidural space was not identified, Dr. Smith did not explore or establish before November 15th.
[November 7] — Appears very weak getting back into bed … required to be “lifted” into bed; Appears much weaker this morning. Unable to walk on own or stand. Complaint of great pain in shoulders and neck and moves with difficulty; incontinent, blood pressure low; Unable to stand up by herself.
[November 8] — incontinent; required catheterization for considerable volume of urine; blood pressure low; dangled at side of bed; patient remains groggy and unsteady if left alone; very tearful at times; appeared quite lethargic and depressed all shift.
I might interject as a matter of interest that the originally planned micro-laryngoscopy was performed on November 8th. Dr. MacRae thought it necessary to carry this out because the hoarseness had not been evaluated and he wished to “visualize the laryngeal structures to ascertain if the changes of swelling had settled down from her previous attempts at intubation”. In the result, the examination revealed merely some thickening of the vocal chords and voice-box muscles but no evidence of any growth. Ironically, the problem which put this lady in the hospital in the first place turned out to be of little consequence.
[November 9] — moaning and crying with pain between shoulders; seems to be more helpless. Maybe just at night; little urinary retention; again catheterized for perhaps three to four times the usual volume of urine.
[November 10] — patient seems to have foot drop (i.e. weakness in the dorsal flexion of the foot); her feet get very uncomfortable when she slips down in bed. Patient does not seem to be able to alter position of legs or feet by herself very much; neck sore; continued incontinence; catheterized; when getting up patient became very weak; no strength in legs at all; unable to walk any length.
On Dr. MacRae’s orders cervical spine X-rays were taken of Mrs. Holmes on November 10th. The nurses’ records note: “09.50
— For cervical spine x-rays per stretcher”.
[November 11] — Patient feels arthritic pain through neck, arms and legs, states they are stiff; a Hoyer lift required to move her; complaining of pain in her neck and shoulders and back; passive exercises to legs; continuing bladder problems, “catheterized”, little urine retention.
[November 12 — no major changes indicated; on November 13th an inci- 13 dent “getting the patient up in chair her legs gave way”: 14] continued complaints of pain in neck and shoulders; on November 14th — “patient awake, upset, talking — wants to go home to die.”
I move now to Dr. Smith’s progress notes which are short and can be set out in full. It should first be recognized that the doctor was confronted in a diagnostic sense with a puzzling and confusing case, “a complex situation”. On November 7th he noted:
Remains dramatic. Seems to have real pain and tenderness in muscle in posterior vertebrae and about shoulders. No real paralysis, but amount of power very variable and contraction of muscles suddenly gives way suggesting lack of co- operation. At times slight hypoalgesia over right deltoid area and ulnar aspect of hands. I find no convincing evidence or organic weakness apart from that associated with soreness and no convincing evidence of hypoalgesia — could well have some ulnar nerve compression from prolonged resting on elbows.
Hypoalgesia is described as decreased sensation to pain, such as is tested by a pinprick to the knees. While the thought of paralysis would appear to have occurred to Dr. Smith at this stage, he suggested at trial that the incontinency experienced by that date could tenably have been attributed to the combination of anaesthetics, analgesics and sedatives, the long confinement to bed and the patient’s general agitation. Dr. Spaulding was of the opinion that this was a critical time in Mrs. Holmes’ post-operative period; that changes were taking place which suggested certain possibilities, one of which was that she was developing an upper cord disturbance. He thought the point had been reached when the situation should have been reviewed in order to try to discover what was producing the quick changes in the patient. But he agreed Dr. Smith’s examination in this complex clinical situation was extensive and he was justified in achieving the opinion he did on that date.
On November 8th Dr. Smith reported:
To go to O.R. for laryngoscopic exam today. Bladder distended. Complaining of weakness in hands and across shoulders. May require electromyography and nerve conduction studies to assess.
and on November 9th he confirmed his earlier diagnosis of hypothyroidism and assessed her condition as one of peripheral neuropathy:
Serum Thyroxin0.7 (Normal 3.5-8.5 mgns.% confirming hypothyroidism. Will start on Sodium L-Thyroxin. Shows peripheral neoropathy with hypoalgesia to pin prick to knees, loss of vibration up to iliac crest but some muscle sense.
Reflexes all show slow relaxation.
November 10th was a critical day. By then Mrs. Holmes appeared from the nurses’ notes to have developed foot drop — a significant finding; she had no strength in her legs, she continued to be incontinent and to manifest all those symptoms itemized in the nurses’ notes which at very least are as consistent with neurological dysfunction as with peripheral neuropathy. On that day Mrs. Holmes in spite of her obvious weakness was moved by Dr. MacRae to the radiology department by stretcher for cervical X-rays. On that day Mrs. Holmes’ deterioration had progressed to the stage that her husband became so distressed and anxious that, quite uncharacteristically, he telephoned Dr. Smith at his home to tell him of his wife’s inability to stand, of her pain, of the fact she could not move her legs (“her legs are like spaghetti”) and to seek reassurance from him.
Dr. Smith had not seen Mrs. Holmes on the 10th, but on the next day, November 11th, observed:
Complaining of feeling weak generally. B.P. 80/60. due to Valium. Will stop this obvious functional element. Feel we must push physiotherapy. Will stop Valium and decrease Robaxin re low B.P. Chest clear. Abdomen distended but tympanetic. Unable to void — due to Robaxin.
Feel is legitimately weak re myxoedematous neuropathy, plus recent surgery, sore muscles, and hypotension, but not very co-operative.
Myxoedematous neuropathy, that is, a neuropathy or functional disturbance in the peripheral nervous system derived from a severe degree of hypothyroidism, is a rare and unusual condition. It is one, according to the evidence, unknown to most doctors and it may indeed be, as Dr. Smith’s counsel suggested, that, but for his extra knowledge he might have sought another and perhaps more obvious diagnosis for Mrs.
Holmes’ symptomatology. Dr. Spaulding, although agreeing that Dr. Smith did seek to sort out the functional from the organic and was alive to Mrs. Holmes’ condition, was of the view that the thyroid function was a “red herring” in the doctor’s thought process. In his opinion the symptoms manifest and evidence available by November 10th pointed more to a spinal cord condition than to myxoedematous neuropathy; the temporal sequence was faster than would be expected and in his view the neuropathy of myxoedema would not have produced in a matter of days in a person with no neurological findings the findings evident in Mrs. Holmes or, as Dr. Spaulding put it, would not “have produced this picture in this length of time”.
Dr. Spaulding agreed that Dr. Smith’s diagnosis of November 11th by itself was a tenable one — but — if the November 10th X-ray findings are added to the other available information (Dr. Smith’s findings and the nurses’ notes) the diagnosis becomes untenable. The X-ray findings expose the diagnosis as wrong and Mrs. Holmes’ condition as emergent.
No doctors’ progress notes were made on November 12th, 13th or 14th. From their absence, according to Dr. Spaulding, it can be assumed that there was no great concern on the part of her attending physicians although as it became clear later this was a time when treatment might have reduced the effects of the infection and made a significant difference to this woman.
Dr. Smith saw her next on November 15th and by then: Marked change since I last saw her — has developed quadriparesis with only ability to elevate her upper arms. Complete loss of power in forearm and hands, trunk, with diaphragmatic breathing and no power in legs. Reflexes brisk. Plantar Right (up) and left Sensory level at C4 over anterior chest and over level between C6 — C7.
Loss of sphincter tone rectal and requires catheter. Obvious cord lesion at C-6. Will have Dr. Barr see and review x-rays. Should have myelogram If has Acute disc herniation; spinal cord tumour or vascular lesion or transverse myelitis.
Dr. MacRae also saw her on the 15th and, without consulting Dr. Smith, concluded she was paralyzed. Dr. MacRae, it might be observed, did not keep progress notes or if he did they were not before me.
Dr. Hugh Barr, a neurosurgeon was immediately called into the case. He found in his subsequent operative examinations infection centred roughly on the C-6, C-7 disc space; this infection is described as a “retropharyngeal abscess”. Fresh X- rays taken on the 15th showed a “large retropharyngeal mass … with destruction of the C-6, C-7 intravertebral disc in the form that one usually sees with infection”. The operation revealed the involvement of the vertebral bodies of C-6 and C-7 in this infection process. Dr. Barr removed the C-6, C-7 intervertebral disc and certain tissue and drained pus from the site. Further operative steps were taken on November 23rd without resolution of the plaintiff’s quadriplegia. I shall review Mrs. Holmes subsequent medical history later; while it is important to the damage issue it has no bearing on liability.
This brings me to the factual question which to my mind is central to the plaintiff’s claim against Drs. Smith and MacRae — the X-rays.
On November 4th, Dr. Smith identified the “obvious” need for X-rays; on the following day Dr. MacRae ordered X-rays; and on the same day (the 5th) he viewed them with a radiologist. The picture of the cervical area and its details was unsatisfactory, evidently because the X-ray had been taken in the I.C.U. by portable machine. Nothing further was done until November 10th, manifestly a critical day in Mrs. Holmes’ medical history. Dr. MacRae, on November 10th, ordered cervical spine X-rays; the requisition by notation in red ink directed “Do to-day if possible”; implicit in the order for X-rays was a recognition of the necessity to move Mrs. Holmes by stretcher to the radiology department; on the back of the requisition form a note appears, likely of a technician, “patient is unable to sit up”. The nurses’ notes of November 10th report the patient taken by stretcher for X-rays.
Neither Dr. Smith nor Dr. MacRae read the X-ray pictures; neither sought or obtained a report of them before November 15th. By then their patient had deteriorated to a state of quadriparesis. The X-rays of November 10th revealed:
… some narrowing of the C-5-6 disc space with marginal osteophyte formation. There is straightening of the normal cervical curve. No other definite abnormalities are seen in the cervical spine.
Tere does appear to be some soft tissue widening anteriorly in the lower cervical area.
Dr. Smith concedes that had he seen this report he would have considered cervical problems and consulted a neurologist or neurosurgeon. Dr. Spaulding’s evidence is that the pre- vertebral widening was significant; that it was necessary to consider whether a spinal cord disorder was producing the neurological findings in the patient; that it became clearly appropriate to consult a neurologist or neurosurgeon. The X-ray disclosures raised, he said, an alert, “a red flag”, and exposed Mrs. Holmes’ condition as emergent. These X-ray findings added to the existing information rendered Dr. Smith’s diagnosis untenable.
Dr. Spaulding also expressed the opinion that Dr. Smith’s failure to either read, consult in respect of or order good cervical X-rays did not represent a reasonable follow-up to an identified need; and Dr. MacRae’s failure to read or consult in respect to X-rays taken at his request until after Mrs. Holmes had been identified as quadriplegic likewise did not represent a reasonable follow-up to the identified need for X-rays; he would have expected that either the films would have been seen or the radiologist spoken to or his report obtained. Dr. Johnson and Dr. Cockshott were also asked about the X-rays of November 10th; they were both critical of the failure to read them and in their testimony stated that not to have done so was ”curious”, “unusual”, “not reasonable”, “not normal procedure”.
On the evidence before me I am compelled to the conclusion that the November 10th X-rays read in the light of Mrs. Holmes’ clinical findings disclosed her situation to be urgent, dictated a neurological examination, and revealed Dr. Smith’s assessment to be a misdiagnosis. Further, if the X-ray film had been examined when available steps could have been taken to better the chances for Mrs. Holmes’ treatment and arrest the progress of the infection which led eventually to her crippling damages.
The case against Drs. Smith and MacRae
The case against Drs. Smith and MacRae rests on the allegation that they failed to weigh properly and investigate all the recorded symptoms and diagnostic data and to diagnose properly the plaintiff’s condition at a time when remedial measures might have been taken; in particular it is alleged that the doctors were negligent in failing to read, to consult
or to obtain a report in respect to the X-rays of November 10th and in failing to take the steps necessary following the availability of these X-rays; further, in regard to Dr. Smith, that he was negligent in making a diagnosis on incomplete information or in failing to review or reconsider his diagnosis when fresh information became available about which he knew or ought to have known.
I have already reviewed the standard of care required of a physician who holds himself out as a specialist; that higher degree of skill and learning applies also to diagnosis. But diagnosis involves questions of judgment and where the error amounts to an honest mistake in judgment it will not constitute professional negligence; the law does not demand infallibility of physicians. The distinction between judgmental error and professional negligence is often not easily determined. In Wilson v. Swanson, [1956] S.C.R. 804, 5 D.L.R. (2d) 113, Mr. Justice Rand noted the distinction and observed at pp. 812-3 S.C.R., p. 120 D.L.R., that “An error in judgment has long been distinguished from an act of unskilfulness or carelessness or due to lack of knowledge … and the honest and intelligent exercise of judgment has long been recognized as satisfying the professional obligation”; he then quoted with approval the following statement of an American Court which is pertinent to the issue here:
He [a surgeon] is not to be judged by the result, nor is he to be held liable for an error of judgment. His negligence is to be determined by reference to the pertinent facts existing at the time of his examination and treatment, of which he knew, or in the exercise of due care, should have known. It may consist in a failure to apply the proper remedy upon a correct determination of existing physical conditions, or it may precede that and result from a failure properly to inform himself of these conditions. If the latter, then it must appear that he had a reasonable opportunity for examination and that the true physical conditions were so apparent that they could have been ascertained by the exercise of the required degree of care and skill. For, if a determination of these physical facts resolves itself into a question of judgment merely, he cannot be held liable for his error.
In this case it is acknowledged by the experts testifying for the plaintiff that up to November 10th, Dr. Smith was active in trying to establish the causes of Mrs. Holmes’ condition. While another course might have been taken, or the symptoms viewed in a different way or other conclusions reached, his diagnostic approach on the evidence before me was a reasonable one. Where in the exercise of his judgment a physician selects one of two alternatives, either of which might have been chosen by a reasonable and competent physician, he will not be held negligent. The diagnosis must be judged in the light of the pertinent facts and conditions existing at the time the physician rendered his professional opinion; he cannot be expected to possess the sharper vision and higher wisdom of hindsight. On the evidence before me I am unable to find any failure by Drs. Smith and MacRae to apply that degree of care and skill required of them in the treatment and diagnosis of their patient up to November 10th. But the matter stands otherwise for November 10th and the following days.
It will be recalled that on November 4th, Dr. Smith identified as “obvious” the need for “good x-rays of cervical and dorsal spine”. Dr. MacRae ordered these the following day and on the same day viewed them with a radiologist; Dr. Smith apparently also saw them. On November 10th, which, as I have noted, was a significant day in Mrs. Holmes’ downward progress, Dr. MacRae requisitioned further cervical spine X-rays; these exposed the diagnosis as erroneous and, if considered together with the patient’s other findings, revealed her situation to be emergent. Unfortunately, until their patient’s paralysis was apparent, neither Dr. MacRae nor Dr. Smith read or consulted or obtained a report in respect of the X-rays. The question is whether their failure to do so constitutes negligence. In my opinion, it does. They were negligent not through any error in judgment, but because they failed properly to inform themselves of factual data which they had recognized and identified as pertinent and necessary to the diagnosis of Mrs. Holmes and which they knew was available or, in the case of Dr. Smith, ought to have known if he did not.
Before amplifying my decision I am obliged to say the evidence of the doctors in respect to the X-rays is less than satisfactory and leaves unanswered a variety of questions. Dr. MacRae chose not to testify and elaborate upon or have tested his discovery evidence or offer any further information to help solve matters in issue within his knowledge. In a case arising out of a doctor-patient relationship and involving a puzzling medical situation, I find this disappointing. As for Dr. Smith, he had little or no recollection of the specifics of this case, he was able to rely in the main only on routine, on what he usually does. While it is understandable and to be expected that a busy practitioner will not be able to recall many years later the details of his treatment or visitations to an individual patient, this was by no means a routine case, it was not one among many. Mrs. Holmes’ epidural infections were medically unusual; an esoteric diagnosis was dramatically demonstrated in less than a week to be wrong. After the 15th, the case was discussed in the hospital community; the possibility of litigation recognized; reports submitted to the hospital’s solicitors; and within six months the action commenced. In these circumstances and having regard also to the concentration of events in so brief a period I would have thought, and think it not unfair to expect, that the details of the medical services rendered to this patient would have been more indelibly impressed on his memory. The combined failure to testify and to remember leaves the impression that the whole story has not been told and requires that more inferences be drawn than should be necessary in a case involving standards of professional care.
In considering the obligation to examine the X-rays, it is pertinent to bear in mind Dr. Spaulding’s observation that in a complex medical situation such as this a physician seeking a resolution of his patient’s problems would be expected to conduct more frequent examinations and more extensive examinations and would be expected in formulating his assessment to avail himself of all ancillary assistance. It is manifest that such added vigilance and caution is both good sense and good medicine.
The need for X-rays is not really in issue; Dr. Smith perceived and identified their necessity; no medical witness has suggested them to be inappropriate or unnecessary; they plainly constitute a standard and applicable diagnostic procedure; everyone acknowledged they should be obtained. The only question raised by the defence is when. The contention of the defence put simply is this: the X-rays were not a matter of urgency nor were they perceived by Dr. Smith as such; they were an item of low priority; they could reasonably await some later date when conditions had improved and the patient was “up and about”; no urgency existed dictating they be done on the 10th; and, accordingly, there was no pressing need they be examined then, this could also wait.
The explanation for not reading the X-rays is predicated upon the suggestion implicit in Dr. Smith’s evidence that he and Dr. MacRae operated independently and in isolation from one another. I do not accept this to have been the case. On my view of the evidence they shared the management of the patient and in effect worked in tandem. If, as Dr. Smith maintained, he alone was responsible for Mrs. Holmes’ problems other than tracheal or larynx problems, why, it may be asked, was it Dr. MacRae who requested the X-rays of the 5th and later, after his laryngoscopic examination had been satisfactorily completed, of the 10th Were not the X-rays of the 5th clearly in response to Dr. Smith’s direction of the 4th Did they not consult and communicate about the X-rays (there is no evidence on this), who would order them and when Is this a situation in which it is to be concluded, as Dr. Smith’s evidence would suggest, that the right hand was unaware of what the left hand was doing
By the 10th the patient’s condition was patently worse than on the 5th, and yet the X-ray plates of the 5th were seen to be of sufficient significance to be examined by the doctors and interpreted by a radiologist. Those of the 10th could not conceivably have been thought less significant — why were they not similarly inspected If, as Dr. Smith stressed, he would have delayed the X-rays because no urgency existed to justify moving the patient in her condition to the X-ray department, does not the fact that it was deemed sufficiently important to move her by stretcher demonstrate that a sense of urgency was indeed perceived On the defence contention, it must have been entirely coincidental that Mrs. Holmes was X-rayed on the critical day she appeared, among other things, to have developed foot drop. I do not accept that; the evidence and the inferences to be taken from it point the other way. I think the conclusion irresistible that X-rays were ordered that day because her progressively deteriorating condition dictated securing the best factual data upon which to formulate, confirm or support a diagnostic judgment; X-rays were thought clearly necessary and, notwithstanding her condition, justified moving her for the purpose. They were ordered then Dr. MacRae said on discovery (and he put it no higher than “if I recall”) because of a lack of detail in the earlier film. I find this most improbable. If so, why the unexplained delay from the 5th to the 10th And why Dr. MacRae’s special instructions
Dr. Smith stated in chief, curiously in my view, that he “presumed” he knew X-rays were ordered on the 10th but “cannot specifically recall”. Surely when quadriparesis was discovered on the 15th the doctors must have discussed the X- rays, the fact that they warned of the patient’s condition, the fact that they had not been examined, the fact they showed the diagnosis to be in error; surely on that date there must have been concern and certainly regret that available pre- existing information had not been secured. Whether the doctor did or did not know of the X-rays at the time would I think have been so salient a fact as to stand out clearly and distinctly in his memory. If he had not known of the X-rays would that also not have been discussed, questioned and remembered There is, of course, the possibility that Dr. Smith did not inspect the nurses’ notes of the 10th and consequently was indeed unaware of the X-rays — he has no recollection of seeing these important notes. If such were the case I would hold him negligent for failing to do so in the circumstances here; those notes are patently factual data necessary for a proper diagnosis and not to have read them in the situation then existing would be manifest neglect. Dr. Smith later in his evidence says he was aware of the X-rays and, with little certainty as the evidence stands, I accept that he probably did.
But on the evidence and the observations I have made I cannot accept that Dr. Smith made a conscious decision to ignore the X-rays or to have them filed unread for reference at some indeterminate future time or otherwise to render pointless the fact that they had been taken. Nor do I accept the suggestion that the X-rays ordered on the 10th were part of a normal “work-up” of a patient’s file conducted on a routine or non- urgent basis. In my opinion the specific need for good cervical X-rays had been identified and the results of those X- rays should have been reviewed at the time as I feel certain was, in fact, intended. I expect, and this is speculative, that what probably happened was very simple: each of the doctors anticipated the other would obtain a report of the X-rays and would advise if a problem appeared; through inadvertence neither did and the responsibility, in short, fell between them; perhaps also the fact that Dr. Smith was to be out of town for the following few days contributed to the confusion.
In any event, whatever the reason for not properly collecting the information disclosed by the X-rays of the 10th, I find Dr. MacRae negligent for his failure to have done so and to have fulfilled the responsibility he undertook and assumed in ordering them. I likewise find Dr. Smith negligent for his failure to avail himself of the factual data revealed by X-rays of which he knew or should have known and which were clearly pertinent and material to the diagnostic duties he had undertaken and were seen by him as such.
As a result of the failure to secure and utilize the significant findings revealed by the X-rays, the misdiagnosis remained in force and steps were not taken which, it is undisputed, could have been taken and which might have made a significant difference to Mrs. Holmes. Her condition is, so far as can be known, permanently worse than it probably otherwise would have been and the negligence of the doctors must be held to have contributed to it.
Just as there is no question of causation in this case, there is no issue or dispute among the doctors or any claim of one against the other and I am not required to concern myself about questions of novus actus interveniens or the like.
The case against Victoria Hospital
I have said nothing to this point about the case against Victoria Hospital; there is indeed little to be said. The hospital was not the employer of the defendant doctors and is not vicariously responsible for their negligence. The plaintiff’s claim against it was not pursued at trial with any vigour. As matters developed the main attack on the hospital was made by Drs. Smith and MacRae. They claim contribution and indemnity pursuant to the Negligence Act, R.S.O. 1970, c. 296, for those damages for which they may be liable alleging that such damages were “caused or contributed to by the failure of the nursing staff to properly observe and report to the medical doctors the complaints and deteriorating condition of the plaintiff during the period from November 2nd to 15th, and in particular on November 13th, 14th and 15th, 1971”.
In my opinion there is not a shred of evidence to support the allegation. The nurses’ notes appear to constitute an adequate, indeed complete, record of the relevant findings in respect to the patient. No inference can be drawn, as is suggested, that unrecorded changes took place during November 12th, 13th and 14th, which were known to the nurses and should have been communicated by them to the attending physicians. And the suggestion advanced during the trial that the physicians could have been misled by nurses’ occasional observations that the patient has had “a good day” or “a good night” is plainly specious. There is nothing in the evidence before me to indicate that the Victoria Hospital or anyone for whom it is responsible in law was guilty of any want of care or failed to comply in any respect with the high standards to be expected of this hospital.
Mrs. Holmes’ subsequent treatment and hospitalization
Mrs. Holmes’ condition following November 15, 1971, has remained serious and there is no argument about the gravity of her injuries. For the purpose of these reasons it is sufficient to synopsize briefly the medical testimony and the many medical reports before me.
Mrs. Holmes remained at Victoria Hospital until November, 1972. During that year she underwent a cervical laminectomy, or spinal operation, further to the pre-vertebral explorations performed on November 15, 1971, by Dr. Barr. This procedure did not provide relief and confirmed extensive infection of the tissues. Increasing dosages of drugs including an experimental drug were prescribed in an unsuccessful attempt to treat persistent, marked and painful spasms of her limbs and trunk. She encountered problems with abdominal distention and constipation. In January, 1972, she was readmitted to the intensive care unit for a time to deal with an episode of kidney failure related to her continued use of antibiotics to suppress residual infection. Some occupational therapy and physiotherapy were conducted and some gradually increased control of her upper extremities was achieved. She resumed the ability to feed and wash herself.
From November, 1972, to April, 1975, Mrs. Holmes was a patient at University Hospital, London, in the care of its rehabilitation service. She was described as a “pleasant and co-operative patient” and one who “works hard with her treatment programmes”. In 1973 she had operations of a nature described as “tenotomies” and an “obdurator neurectomy” in an effort to reduce severe spasms of her legs and to allow the legs to separate but she continued to have a “great deal of spasm”. She was advised at that time to consider a “Bischoff’s myelotomy” as a means of alleviating her spasticity but she resisted this operation because the loss of sensation and power which would result would complicate her bowel problems and not permit her to achieve the goal she then still held, to walk again. She was advised of the reasons why walking remained a very doubtful possibility for her but for a long time was convinced her paralysis was not permanent.
Due to recurrent and severe infection of the kidneys an ileo- conduit or urinary by-pass through the abdominal wall to an exterior collecting bag was required and performed. After the establishment of her conduit, she had an intestinal obstruction which required resection of some small intestine. As a complication of this she has a large ventral hernia making her uncomfortable and causing soreness in the abdominal wall muscles; further corrective surgery may be required.
In April, 1975, Mrs. Holmes was transferred to Parkwood Hospital, and remained there until April, 1976. Spasticity continued as a major problem in this period. In October, 1975, procedures known as phenol and then alcohol blocks were performed on her but were not very successful. She experienced a marked hyperaesthesia of nearly her whole body and a burning sensation much of the time, particularly of her hands and feet. She was administered quite large doses of pain killers on a regular basis and became severely depressed.
In April, 1976, Mrs. Holmes was transferred to Lyndhurst Hospital in Toronto. Attempts were made over the following months to control her spasms through medication rather than absolutely through surgery with the very major loss of remaining power which would inevitably result. By September, 1976, there was increasing evidence of the hallucinogenic and depressive effects of the medications employed. When medications were discontinued Mrs. Holmes gradually improved. By this time, however, it had become evident that she required surgical treatment for relief of the severe and disabling spasticity which had plagued her for so long. She accepted the inherent risks of this operation, and it was successfully performed at St. Michael’s Hospital in December, 1976, when indeed there was a significant loss of feeling but a substantial reduction of spasticity in the lower extremities. While she is now able to demonstrate a full range of movement in the limbs of her upper extremities she experiences pain in the fingers, wrist joints and to a lesser extent the elbow joints. The left hand in which the pain is minimal manifests fusiform-shaped fingers, as often noted with rheumatoid arthritis.
Since returning from the December, 1976 surgery she has “worked as hard as she is capable of doing and has made progress”, but nevertheless she falls short of independence. The degree of her dependency is set out in the evidence. She is able to sustain the weight of the upper part of her body but someone must transfer her legs. She is able to dress and undress herself slowly and laboriously and does this quite regularly. “But she is much less depressed. She is more at ease with herself and her plate.” Some degree of spasm persists in her lower extremities, as was evident to me during her appearance in Court. She complains of constant pain, though not as severe as in the past, and experiences sensory disorders — such as subjective feelings of cold or heat not substantiated by touch — which are related, of course, to her primary neurological deficit. Some loss of sensation has been suffered as a consequence of the myelotomy. Her kidneys drain through an ileo-conduit requiring that she wear a plastic bag bonded to the skin over her abdomen. Bowel evacuation is controlled by suppositories for which assistance is required. Mrs. Holmes is confined to a wheelchair and this is a permanent state. It is clear on the evidence particularly of Dr. A. T. Jousse, an eminently qualified specialist in the rehabilitation of persons suffering spinal cord injury, that Mrs. Holmes has reached and is able to maintain a level of personal independence required for living in her own community. Her rehabilitation is now best served by her return to her home and husband and the provision of care for her in this environment. Continued institutional confinement of a person in Mrs. Holmes’ situation can produce serious negative psychological effects and, while it may be more expensive, she is entitled to the benefit of her own home environment and the motivation for living it is most likely to produce. The desirability of this is recognized and recommended by the specialists and has been their aim throughout their treatment of Mrs. Holmes.
She will, Dr. Jousse says:
be able to manage her home and perform quite a few household duties but will require assistance for homemaking in all cases which, being in a wheelchair makes participation virtually impossible. These areas are, of course, going up and down stairs, passing through narrow doorways, reaching into cupboards, cleaning, making of beds, much of the laundry, gardening and maintaining the lawn in condition … She cannot use public transportation and therefore must always have her own motor vehicle or taxi service available. It is possible for one to drive an automobile which is hand controlled. However the garage must be heated … attached to the house … and be wide enough to permit an individual in a wheelchair to gain access … The particulars of the modifications required for the house and the equipment which must be installed has been placed, together with a statement of their capital cost, in evidence. So also has the cost and maintenance of an adequate van for her transportation. The extent of the future care and maintenance needed for Mrs. Holmes is also in evidence. Briefly, she will require the daily aid and assistance of a nurse’s aide or part- time homemaker to help her with various day to day functions; she will also require a registered nurse once or twice daily and more often as she grows older. It is anticipated that on an average she will require two months of active hospital care each year. Her life expectancy at the present time, having survived the initial high mortality rate of her injuries and having had the risk of urinary infection substantially removed, is 15 to 20 years. It may be expected that during the last period of her life, up to five years, she will of necessity be in a chronic care nursing home.
The present cost of the future home care and assistance she will require is in evidence as is the cost which will of course be incurred for such items as special clothing, wheelchair and medical supplies. The cost of future hospitalization and medical expenses which will be incurred annually both during the two-month hospitalization period and during the last period of the expected life span and otherwise has been placed in evidence separately; these costs are covered by the Ontario Health Insurance Plan (OHIP) and are claimed separately on its behalf.
I do not propose to detail these various items or set forth a breakdown of their costs; they are not in dispute and can be found in the “projected cost of living” report of L. R. Reavley, a rehabilitation counsellor with the Canadian Paraplegic Association, his report of cost of supplies for bowel and bladder maintenance and drugs, the report of Comcare Limited, a firm which provides nursing service in the London area, the medical reports of Dr. Jousse and other doctors, and the evidence of C. A. Gordon, liaison officer of the Ministry of Health.
Damages
This brings me to the assessment of Mrs. Holmes’ damages.
She is entitled to general damages for her non-pecuniary loss. This includes damages for pain and suffering both physical and mental, loss of the amenities and pleasures of life and loss of expectation of life. Under this head I award her the sum of $150,000 — an amount I consider within the range submitted by counsel and in line with recent awards of Courts in Ontario in serious personal injury cases.
Mrs. Holmes is entitled also to pecuniary general damages to cover the cost of her future care. Actuarial evidence has been adduced as to the capital sum required to meet the expenses of future care over her projected life expectancy. A 3% figure, established in evidence as reasonable and not disputed, has been applied by way of discount to provide the present value of the money required to provide for these future costs. The actuarial calculations for these costs (which do not include the OHIP medical and hospital expenses) have been made to cover a 15-year period anticipating, as I have noted, that Mrs. Holmes’ last years will probably be in a chronic care home. Perfect damages are never possible but the sum awarded should be sufficient to ensure that the plaintiff will be reasonably looked after in situations that can be reasonably foreseen.
Considering all the evidence before me and weighing the usual factors and contingencies applicable to damages under this head, in my opinion the proper global figure at which to assess these damages is $200,000.
The Ontario Hospital Insurance Plan is entitled to recover the cost incurred for past insured services and the cost that will probably be incurred for future insured services: the Health Insurance Act, 1972 (Ont.), c. 91, ss. 35, 36 and 38. The past insured services which have been paid by OHIP are agreed upon at $166,107.75, a figure which by itself demonstrates the extent of the medical treatment and hospital care required by and afforded to Mrs. Holmes to trial. The future services have been testified to by an officer of OHIP and actuarial evidence respecting those services has been submitted. It has been prepared on the same basis as the actuarial figures relating to future care except that here the calculations are for a 20-year period the last five years of which it is thought will be spent in a chronic care institution. In considering these figures note should be taken that they take the most optimistic view of the life span and include a full five years of institutional care during which of course the cost of the insured services will be highest. In weighing the contingencies it would appear that the realization of certain of them becomes more likely as time passes and accordingly it is appropriate to effect a greater reduction here to arrive at a fair capital sum than it was for future care while in her home. I assess the future cost of insured services at $200,000 including in that sum those extra costs incurred from trial to the date of Mrs. Holmes’ planned move.
I have been urged on behalf of the defendant doctors to impose a trust upon the sum assessed for future insured services and direct an annual reference of the actual cost of such services to which OHIP would be entitled each year until the fund is exhausted; and further to order that in the event any balance remains in the fund at the death of the plaintiff that it revert to these defendants. This suggestion was rejected by OHIP and in the absence of consent the Court has no jurisdiction in my opinion to impose such a trust. I may say that the proposal is to me a reasonable and sensible one; any procedures which might be made available to remove the element of guesswork from the assessment of such future costs and make their ascertainment more precise is much to be desired. But this is a matter for the Legislature.
Mrs. Holmes’ damages will, therefore, be assessed as follows: Non-pecuniary general damages$150,000.00
Pecuniary general damages to cover the cost of future care and maintenance, etc.200,000.00
Cost of past insured services apportioned in favour of OHIP166,107.75
Future insured services apportioned in favour of OHIP200,000.00 $716,107.75
The claim of David Holmes
Mr. Holmes as a plaintiff claims the recovery of special damages incurred by him as a result of his wife’s injuries. Three of these items are disputed not as to quantum but as to his entitlement to recover them.
One relates to his automobile mileage expenses for the literally hundreds of trips he made from St. Thomas to visit his wife in hospital in London or Toronto; another to his long- distance telephone costs in placing numerous telephone calls to his wife over the past six years. Both these items, in my opinion, are recoverable. I do not agree that because the husband himself may have received some advantage from his visits and calls they must be disallowed. These expenses were absolutely essential for Mrs. Holmes’ health and welfare, they were patently necessary to sustain her. Both items will be allowed but I shall disallow a third item relating to certain household expenses of Mr. Holmes.
On the figures as agreed to Mr. Holmes is entitled to special damages in the sum of $18,303.14.
Conclusion
In the result, for these reasons there will be judgment for the plaintiff Jessie Holmes against the defendants Drs. Diamond, MacRae and Smith for $716,107.75 of which sum $366,107.75 will be apportioned in favour of OHIP. There will be judgment for the plaintiff David Holmes against the said defendant doctors for $18,303.14. The action of the plaintiffs and the claim of the defendant doctors against Victoria Hospital will be dismissed. The costs of the plaintiffs and Victoria Hospital will be paid by the defendant doctors.
Judgment for plaintiffs against doctors; action and claim over against hospital dismissed.