Comeau v. Saint John Hospital,

• Jurisdiction: New Brunswick
• Judge: Turnbull, Deschênes and Robertson, JJ.A.
• Neutral Citation: 2001 NBCA 113
• Citation: (2001), 244 N.B.R.(2d) 201 (CA),2001 NBCA 113,244 NBR (2d) 201,9 CCLT (3d) 223,[2001] CarswellNB 436,[2001] NBJ No 450 (QL),634 APR 201,(2001), 244 NBR(2d) 201 (CA),244 N.B.R.(2d) 201,634 A.P.R. 201,[2001] N.B.J. No 450 (QL),244 NBR(2d) 201
• Date: 18 January 2001
• Court: Court of Appeal (New Brunswick)

Comeau v. Saint John Hospital (2001), 244 N.B.R.(2d) 201 (CA);

    244 R.N.-B.(2e) 201; 634 A.P.R. 201

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2001] N.B.R.(2d) TBEd. NO.045

Saint John Regional Hospital (defendant/appellant) v. Gertrude Comeau in her own name and as personal representative of John Arthur Comeau, deceased, and Katelyn Comeau and Jared Comeau, minors, by their litigation guardian, Gertrude Comeau (plaintiffs/respondents) and Dr. Wendy R. Smith, Dr. Paul J. MacDonald, Dr. John M. Dornan and Dr. Stewart Lamon (defendants/respondents)

(274/99/CA)

Dr. Paul J. MacDonald and Dr. John M. Dornan (defendants/appellants) v. Gertrude Comeau in her own name and as personal representative of John Arthur Comeau, deceased, and Katelyn Comeau and Jared Comeau, minors by their litigation guardian, Gertrude Comeau (plaintiffs/respondents)

(275/99/CA; 2001 NBCA 113)

Indexed As: Comeau v. Saint John Regional Hospital et al.

New Brunswick Court of Appeal

Turnbull, Deschênes and Robertson, JJ.A.

November 29, 2001.

Summary:

Comeau went to a hospital emergency department complaining of chest pain. Dr. Smith, an emergentologist, did a physical examination and ordered tests. Comeau was next seen by Dr. MacDonald, a resident in internal medicine. Dr. MacDonald examined Comeau and consulted Dr. Dornan, an inter­nal medicine specialist. Dr. MacDonald and Dr. Dornan diagnosed Comeau as suffering from irritative bronchitis secondary to paint fumes, a diagnosis that Dr. Smith had elim­inated. On the advice of Dr. Dornan, Dr. MacDonald discharged Comeau. Comeau died the next day from a ruptured aneurysm. Comeau's wife and two children sued the hospital and the doctors involved.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at 221 N.B.R.(2d) 201; 567 A.P.R. 201, held that the hospital was negligent in failing to enforce a hospital policy which required internal medi­cine specialists to consult with the referring emergentologist in reaching a diagnosis and prohibited the consulted inter­nal medi­cine physicians from discharging the referred patient. The court held that Dr. Mac­Donald was negligent in failing to con­sult with Dr. Smith (or her notes) or with Dr. Smith's replacement that night, Dr. Lamon. Dr. Dornan was found negli­gent for not insisting that Dr. MacDonald consult with Dr. Smith. No negligence was found by Dr. Smith or Dr. Lamon. The court held that the negligence of each of the hospi­tal, Dr. Dornan, and Dr. MacDon­ald, materially caused Comeau's death and appor­tioned liability 65% to the hospital, 25% to Dr. Dornan and 10% to Dr. Mac­Donald. The court assessed the plaintiffs' dam­ages and awarded judgment accordingly. The hospital, Dr. MacDonald and Dr. Dor­nan appealed from the decision on liability and the dam­ages awarded for future loss of financial support. The plain­tiffs cross-appealed with respect to the dam­ages awarded.

The New Brunswick Court of Appeal dismissed the appeal and allowed the cross-appeal in part.

Damage Awards - Topic 80

Injury and death - Wrongful death and fatal accidents - Father - [See Damages - Topic 2377 ].

Damage Awards - Topic 97

Injury and death - Wrongful death and fatal accidents - Loss of guidance, care and companionship - [See Damages - Topic 2377 ].

Damages - Topic 2117

Torts causing death - Method of assess­ment of value of the dependency (lump sum) - Contingencies - Comeau, aged 35, died from a ruptured aneurysm shortly after he was discharged from a hospital emergency department - Comeau's wife and children sued the hospital and the doctors involved - The trial judge found that the hospital and two doctors were negligent - In calculating damages for loss of financial support, the trial judge reduced the award by 5% to allow for the possibil­ity that Comeau's death might have oc­curred during an operation to repair the aneurysm - He did not allow any reduction for reduced life expectancy following such an operation - On appeal, the hospital and the doctors argued that the award should have been reduced by 30% for the risk of death associated with the operation and that there should have been an additional reduction for a reduced mortality rate following the operation - The New Bruns­wick Court of Appeal declined to interfere with the trial judge's assessment - See paragraphs 98 to 104.

Damages - Topic 2117

Torts causing death - Method of assess­ment of value of the dependency (lump sum) - Contingencies - Comeau, aged 35, died from a ruptured aneurysm shortly after he was discharged from a hospital emergency department - Comeau's wife and children sued the hospital and the doctors involved - The trial judge found that the hospital and two doctors were negligent - In calculating damages for loss of financial support, the trial judge as­sumed that an operation to repair the aneurysm was major surgery which would have caused Comeau to cut back on work starting at age 55 at the rate of 20% a year until his retirement at age 60 - On appeal, the New Brunswick Court of Appeal held that there was no evidence to substantiate the trial judge's conclusion that Comeau would have reduced his workload and thus his earnings at the rate of 20% per year from age 55 to 60 and his award should not have been decreased on that basis - See paragraphs 105 to 108.

Damages - Topic 2197

Torts causing death - Considerations which decrease award - Remarriage of surviving spouse - [See Damages - Topic 2377 ].

Damages - Topic 2377

Torts causing death - Particular damage claims - Loss of parent's guidance and support - The trial judge awarded two children, aged three and five, $5,000 each for loss of parental guidance arising from the death of their father - The trial judge stated that the loss was reduced to a large extent due to the fact that the children's mother had remarried and her new husband would provide male guidance replacing the children's biological father - The New Brunswick Court of Appeal held that the trial judge erred in reducing the damages for loss of parental guidance on the basis of remarriage - In adopting such an ap­proach, he failed to consider the unique nature of the parental guidance which the children could reasonably have expected to receive from their deceased father for many years, considering their young age and the manner in which he had dis­charged his parental responsibilities - The court held that each child should have been awarded $25,000 - See paragraphs 110 to 133.

Hospitals - Topic 231

Operation - Administration - Hospital policies - The trial judge found that a hospital was negligent for failing to en­force its policies - On appeal, the hospi­tal challenged the trial judge's conclusion that the policies were policies of the hospi­tal - The New Bruns­wick Court of Appeal declined to interfere with the trial judge's conclusion - While the policies were not formally adopted as a bylaw or regulation of the hospital, there was ample evidence to justify the trial judge's finding that such policies were the hospital's policies - See paragraphs 58 to 62.

Hospitals - Topic 231

Operation - Administration - Hospital policies - [See Medi­cine - Topic 4243.2 ].

Hospitals - Topic 2054

Liability of hospitals - To patients - Gen­eral - Failure to provide adequate training, protocols and procedure - Failure to en­force procedural policies - [See Medi­cine - Topic 4243.2 ].

Hospitals - Topic 2101

Liability of hospitals - For acts of others - For acts of doctors - The trial judge found that two doctors were not employees of a hospital and the hospital was not vicarious­ly liable for the doctors' negligence - The New Brunswick Court of Appeal declined to interfere with the finding - See para­graphs 46 to 53.

Medicine - Topic 4241.2

Liability of practitioners - Negligence or fault - Causation - [See Medicine - Topic 4243.2 ].

Medicine - Topic 4243.2

Liability of practitioners - Negligence or fault - Doctor's duty to consult other doc­tors - Comeau went to a hospital emer­gency department complaining of chest pain - He was seen by Dr. Smith, an emer­gen­tologist, and then by Dr. MacDonald, a resident in internal medicine - Dr. Mac­Donald consulted Dr. Dornan, an internal medicine specialist - Dr. MacDonald and Dr. Dornan diagnosed Comeau as suffering from irritative bronchitis secondary to paint fumes, a diagnosis that Dr. Smith had eliminated - On the advice of Dr. Dornan, Dr. MacDonald discharged Comeau - Comeau died the next day from a ruptured aneurysm - Comeau's wife and children sued the hospital and the doctors involved - The trial judge held that the hospital was negligent in failing to enforce a hospital policy which required internal medicine specialists to consult with the referring emergentologist in reaching a diagnosis and prohibited the consulted internal medi­cine physicians from discharging the re­ferred patient - The trial judge held that Dr. MacDonald was negligent in failing to consult with Dr. Smith (or her notes) or with Dr. Smith's replacement that night, Dr. Lamon - Dr. Dornan was found negli­gent for not insisting that Dr. MacDonald consult with Dr. Smith - No negligence was found by Dr. Smith or Dr. Lamon - The trial judge held that the negligence of each of the hospital, Dr. Dornan, and Dr. MacDon­ald, materially caused Comeau's death and apportioned liability 65% to the hospital, 25% to Dr. Dornan and 10% to Dr. MacDonald - The New Brunswick Court of Appeal affirmed the decision on liability - See paragraphs 23 to 97.

Medicine - Topic 4252.4

Liability of practitioners - Negligence or fault - Emergency room treatment - [See Medicine - Topic 4243.2 ].

Medicine - Topic 4259

Liability of practitioners - Negligence or fault - Residents or interns - [See Medi­cine - Topic 4243.2 ].

Medicine - Topic 4260

Liability of practitioners - Negligence or fault - Defences - Approved practice - The New Brunswick Court of Appeal held that the actions of two physicians in internal medicine were negligent despite the fact that they had acted in accordance with a practice which was followed by internal medicine specialists at the hospital in question and was accepted in most Cana­dian hospitals - See paragraphs 31 to 39.

Practice - Topic 7168

Costs - Party and party costs - Liability for party and party costs - Between defendants - Comeau died after being discharged from a hospital emergency department - His wife and children sued the hospital and the doctors involved - The trial judge found that the hospital and two doctors were negligent - The trial judge allowed two sets of costs to the plaintiffs and ordered that one set of costs be paid by the two doctors and the other set be paid by the hospital, without regard to the different proportions of liability which he had at­tributed to the hospital and the doctors - The trial judge found that the causes of action against the hospital and the doctors were quite different and that both raised important and complex issues - On appeal, the hospital and the doctors argued that the trial judge erred on allowing two sets of costs - The doctors also submitted that they should only be liable to share pay­ment of costs to the extent to which they were found at fault - The New Brunswick Court of Appeal declined to interfere - The trial judge exercised his discretion properly - See paragraphs 135 to 140.

Torts - Topic 35

Negligence - Standard of care - Particular persons and relationships - Medical doctors and medical personnel - [See Medicine - Topic 4243.2 ].

Torts - Topic 39

Negligence - Standard of care - Particular persons and relationships - Hospitals - [See Medicine - Topic 4243.2 ].

Torts - Topic 61

Negligence - Causation - Causal connec­tion - [See Medicine - Topic 4243.2 ].

Cases Noticed:

Thompson v. Creaghan and Miramichi Hospital (1983), 46 N.B.R.(2d) 271; 121 A.P.R. 271 (C.A.), refd to. [para. 24].

Beshara v. Dysart (1998), 207 N.B.R.(2d) 14; 529 A.P.R. 14 (C.A.), refd to. [para. 24].

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. 32].

Bateman et al. v. Doiron et al. (1991), 118 N.B.R.(2d) 20; 296 A.P.R. 20 (T.D.), affd. (1993), 141 N.B.R.(2d) 321; 361 A.P.R. 321 (C.A.), leave to appeal de­nied (1994), 174 N.R. 236; 150 N.B.R.(2d) 80; 385 A.P.R. 80 (S.C.C.), refd to. [para. 52].

Yepremian et al. v. Scarborough General Hospital et al. (1980), 110 D.L.R.(3d) 513 (Ont. C.A.), refd to. [para. 52].

Lachambre v. Nair et al., [1989] 2 W.W.R. 749; 74 Sask.R. 87 (Q.B.), refd to. [para. 70].

Osburn v. Mohindra and Saint John Gen­eral Hospital (1980), 29 N.B.R.(2d) 340; 66 A.P.R. 340 (Q.B.), refd to. [para. 76].

Braun Estate v. Vaughan et al. (2000), 145 Man.R.(2d) 35; 218 W.A.C. 35 (C.A.), refd to. [para. 76].

McAllister v. Wal-Mart Canada Inc. (2000), 228 N.B.R.(2d) 230; 588 A.P.R. 230 (C.A.), refd to. [para. 77].

Savoie v. Bouchard and Board of Trustees of Hotel-Dieu d'Edmundston (1983), 49 N.B.R.(2d) 424; 129 A.P.R. 424 (C.A.), refd to. [para. 84].

Sparks v. Thompson, [1975] 1 S.C.R. 618; 1 N.R. 387; 6 N.S.R.(2d) 481, refd to. [para. 84].

Toneguzzo-Norvell et al. v. Savein and Burnaby Hospital, [1994] 1 S.C.R. 114; 162 N.R. 161; 38 B.C.A.C. 193; 62 W.A.C. 193, refd to. [para. 93].

New Brunswick (Minister of Family and Community Services) v. J.V., [2001] N.B.R.(2d) Uned. 26 (C.A.), refd to. [para. 94].

Day & Ross Inc. v. Randall et al. (2001), 236 N.B.R.(2d) 317; 611 A.P.R. 317 (C.A.), refd to. [para. 95].

Woelk v. Halvorson, [1980] 2 S.C.R. 430; 33 N.R. 232; 24 A.R. 620, refd to. [para. 102].

Belyea v. Hammond (2000), 231 N.B.R.(2d) 305; 597 A.P.R. 305 (C.A.), refd to. [para. 102].

Anderson v. Williams et al. (1997), 188 N.B.R.(2d) 203; 480 A.P.R. 203 (C.A.), refd to. [para. 102].

Donnelly v. Bélanger (1991), 122 N.B.R.(2d) 48; 306 A.P.R. 48 (C.A.), refd to. [para. 102].

Kugelmass v. Natale et al. (1982), 37 O.R.(2d) 357 (H.C.), refd to. [para. 112].

Flett Estate v. Way-Mat Oilfield Services Ltd. et al. (1990), 103 A.R. 314; 72 Alta. L.R.(2d) 71 (C.A.), refd to. [para. 116].

Coe Estate v. Tennant (1988), 31 B.C.L.R.(2d) 236 (S.C.), varied (1990), 46 B.C.L.R.(2d) 62 (C.A.), refd to. [para. 117].

Vana v. Tosta, [1968] S.C.R. 71, refd to. [para. 120].

Harris Estate et al. v. Roy's Midway Transport Ltd. et al. (1989), 88 N.B.R.(2d) 411; 224 A.P.R. 411 (T.D.), refd to. [para. 120].

Sheppard Estate v. McAllister, [1984] O.J. No. 1520, refd to. [para. 124].

Daigle and Workers' Compensation Board (N.B.) v. Cape Breton Crane Rentals Ltd. et al. (1987), 91 N.B.R.(2d) 189; 232 A.P.R. 189 (C.A.), refd to. [para. 130].

Authors and Works Noticed:

Cassels, Remedies: The Law of Damages (2000), p. 181 [para. 131].

Fridman, G.H.L., The Law of Torts In Canada (1990), vol. 2, p. 320 [para. 52].

Picard, Ellen I., and Robertson, Gerald, Legal Liability of Doctors and Hospitals in Canada (3rd Ed. 1996), pp. 367 [para. 73]; 370 [para. 75]; 381, 383, 384 [para. 49].

Counsel:

David T. Hashey, Q.C., and Catherine M. Bowlen, for Saint John Regional;

Marc A. Bossé, Q.C., and Stéphane F. Viola, for Gertrude Comeau, Katelyn Comeau and Jared Comeau;

Rodney J. Gillis, Q.C., and Anne F. Mac­Neill, for Dr. Smith, Dr. MacDonald, Dr. Dornan and Dr. Lamon.

This appeal and cross-appeal were heard on January 18, 2001, before Turnbull, Des­chênes and Robertson, JJ.A., of the New Brunswick Court of Appeal. The following judgment of the Court of Appeal was deliv­ered by Deschênes, J.A., on November 29, 2001.