Cleveland v. Hamilton Health Sciences Corp. (Henderson General Division) et al.,

• Jurisdiction: Ontario
• Judge: Cronk, Blair and LaForme, JJ.A.
• Court: Court of Appeal (Ontario)
• Citation: 2011 ONCA 244,(2011), 277 O.A.C. 178 (CA)
• Date: 06 October 2010

Cleveland v. Health Sciences (2011), 277 O.A.C. 178 (CA)

MLB headnote and full text

Temp. Cite: [2011] O.A.C. TBEd. AP.007

Tyler Cleveland, Emily Cleveland, and Abigail Cleveland minors by their Litigation Guardian, Chris Cleveland, Chris Cleveland, personally, and Kim Cleveland (plaintiffs/respondents) v. Hamilton Health Sciences Corporation (Henderson General Division), Donald Thomas Whelan, Narsys Punthake, Frederick Eggleton, Penny Thomson, Michael Burger, B. Mark Hildebrand, John Doe, Her Majesty the Queen in Right of Ontario, Helen Demshar, John Thornley, John Doe No. 1 and Jane Doe No. 2 (defendant/appellant)

(C51555; 2011 ONCA 244)

Indexed As: Cleveland v. Hamilton Health Sciences Corp. (Henderson General Division) et al.

Ontario Court of Appeal

Cronk, Blair and LaForme, JJ.A.

March 30, 2011.

Summary:

At the age of three, a child (Tyler) was diagnosed with brain damage due to classical phenylketonuria (PKU), a congenital disorder. All Ontario newborns were screened for PKU through the administration of a blood test (the Guthrie test). Tyler and his family sued several parties, including the provincial laboratory (Crown Lab) and Whelan, a metabolic specialist, who interpreted Tyler's Guthrie tests. They alleged that the negligence of the Crown Lab and Whelan caused or contributed to the failure to make a timely diagnosis of PKU, and thereby deprived Tyler of the opportunity to receive appropriate treatment. They claimed that Whelan did not meet the standard of care required of him by ordering a third Guthrie test following the two earlier elevated phenylalaine results, rather than ordering a diagnostic assessment. Prior to trial, the action was dismissed against all parties, except Whelan. The action against the Crown was settled on the basis that the Crown would be held severally liable for its apportioned share of liability, to the extent that the Crown Lab caused or contributed to the damages suffered. Therefore, the trial proceeded against Whelan on the sole issue of liability.

The Ontario Superior Court, in a decision reported at [2009] O.T.C. Uned. U07, concluded that Whelan's conduct fell below the standard of care in ordering a third Guthrie test in circumstances where the reasonable and prudent decision was to order a quantitative diagnostic test. The court found that Whelan committed "a negligent error of clinical judgment". The court apportioned liability 75% to the Crown and 25% to Whelan. Whelan appealed respecting liability.

The Ontario Court of Appeal dismissed the appeal.

Medicine - Topic 4242

Liability of practitioners - Negligence or fault - Standard of care - The Ontario Court of Appeal stated that the respectable minority principle held that where the practice followed by a doctor was adhered to by at least a respectable minority of competent medical practitioners in the same field, it was not for the court to prefer the practice of the majority over that of the respectable minority - In other words, a doctor who acted in accordance with a respectable minority body of medical opinion would normally be absolved of negligence - However, the courts had recognized that the respectable minority principle did not absolve a doctor from liability in negligence whenever there was a conflict in the expert evidence led at trial concerning the reasonableness of a doctor's conduct - Otherwise, nearly every medical negligence case would be resolved in favour of the doctor, because they almost always involved a conflict of expert evidence - See paragraphs 38 and 51.

Medicine - Topic 4250

Liability of practitioners - Negligence or fault - Failure to diagnose an illness or condition - [See Medicine - Topic 4253].

Medicine - Topic 4253

Liability of practitioners - Negligence or fault - Tests - At the age of three, a child (Tyler) was diagnosed with brain damage due to classical phenylketonuria (PKU), a congenital disorder - All Ontario newborns were screened for PKU through the administration of a blood test (the Guthrie test) - Tyler and his family sued several parties, including Whelan, a metabolic specialist, who had interpreted Tyler's Guthrie tests - They alleged that Whelan's negligence caused or contributed to the failure to make a timely diagnosis of PKU, and thereby deprived Tyler of the opportunity to receive appropriate treatment - The trial judge concluded that Whelan's conduct fell below the standard of care in ordering a third Guthrie test in circumstances where the reasonable and prudent decision was to order a quantitative diagnostic test - As such, Whelan committed "a negligent error of clinical judgment" - Whelan appealed, arguing that the issue was his discretion to choose between two tests to rule out PKU in Tyler - He alleged that there were no practice protocols in place at the relevant time which expressed the applicable standard of care in the circumstances - The Ontario Court of Appeal dismissed the appeal - The trial judge essentially concluded that the expert evidence did not establish that Whelan's decision to order a third Guthrie test in the face of two successive borderline elevated phenylalaine levels, instead of ordering a diagnostic test, accorded with a practice adopted by a respectable minority of the medical profession - See paragraphs 37 to 54.

Cases Noticed:

Crits v. Sylvester, [1956] O.R. 132 (C.A.), affd. [1956] S.C.R. 991, refd to. [para. 16].

ter Neuzen v. Korn - see Neuzen v. Korn.

Neuzen v. Korn, [1995] 3 S.C.R. 674; 188 N.R. 161; 64 B.C.A.C. 241; 105 W.A.C. 241, refd to. [para. 22].

Brimacombe v. Mathews et al. (2001), 150 B.C.A.C. 71; 245 W.A.C. 71; 87 B.C.L.R.(3d) 75 (C.A.), refd to. [para. 22, footnote 3].

Fairley v. Waterman et al., [2002] B.C.T.C. 10; 2002 BCSC 10, refd to. [para. 22, footnote 3].

Dudas v. Munro et al., [1997] B.C.T.C. Uned. 482; 1997 CanLII 4313 (S.C.), refd to. [para. 22, footnote 3].

Bafaro et al. v. Dowd et al., [2008] O.T.C. Uned. H99; 2008 CanLII 45000 (Sup. Ct.), affd. (2010), 260 O.A.C. 70 (C.A.), refd to. [para. 22, footnote 3].

Connell v. Tanner (2002), 158 O.A.C. 268 (C.A.), refd to. [para. 23].

Rowlands v. Wright (2009), 250 O.A.C. 394 (C.A.), refd to. [para. 23].

Brain v. Mador (1985), 9 O.A.C. 87 (C.A.), leave to appeal refused (1985), 64 N.R. 240; 13 O.A.C. 79 (S.C.C.), refd to. [para. 23].

Mustapha v. Culligan of Canada Ltd., [2008] 2 S.C.R. 114; 375 N.R. 81; 238 O.A.C. 130; 2008 SCC 27, refd to. [para. 32].

Ryan v. Victoria (City) et al., [1999] 1 S.C.R. 201; 234 N.R. 201; 117 B.C.A.C. 103; 191 W.A.C. 103, refd to. [para. 33].

Kangas v. Parker and Asquith, [1976] 5 W.W.R. 25 (Sask. Q.B.), affd. [1978] 5 W.W.R. 667 (Sask. C.A.), refd to. [para. 51].

Cope v. Layden, [1984] A.J. No. 175 (C.A.), refd to. [para. 51].

Kehler v. Myles and Foothills Provincial General Hospital (1988), 92 A.R. 345; 64 Alta. L.R.(2d) 97 (C.A.), leave to appeal refused (1989), 101 N.R. 231; 95 A.R. 236 (S.C.C.), refd to. [para. 51].

Alakoozi Estate v. Hospital for Sick Children et al. (2004), 187 O.A.C. 187 (C.A.), refd to. [para. 51].

Anderson v. Chasney, [1949] 4 D.L.R. 71 (Man. C.A.), affd. [1950] 4 D.L.R. 223 (S.C.C.), refd to. [para. 52].

Roberge v. Bolduc - see Dorion v. Roberge et al.

Dorion v. Roberge et al., [1991] 1 S.C.R. 374; 124 N.R. 1; 39 Q.A.C. 81, refd to. [para. 53].

Authors and Works Noticed:

Picard, Ellen I., and Robertson, Gerald B., Legal Liability of Doctors and Hospitals in Canada (4th Ed. 2007), pp. 362 [para. 38]; 364 [para. 51].

Counsel:

Harry C.G. Underwood and Meighan E. Leon, for the appellant;

Brian J.E. Brock, Q.C., for the respondents.

This appeal was heard on October 6, 2010, by Cronk, Blair and LaForme, JJ.A., of the Ontario Court of Appeal. LaForme, J.A., filed the following reasons for judgment of the court on March 30, 2011.