Doiron v. Haché,

• Jurisdiction: New Brunswick
• Judge: Turnbull, Robertson and Richard, JJ.A.
• Neutral Citation: 2005 NBCA 75
• Citation: (2005), 290 N.B.R.(2d) 79 (CA),2005 NBCA 75,290 NBR (2d) 79,[2005] NBJ No 347 (QL),[2005] N.B.J. No 347 (QL),290 N.B.R.(2d) 79,(2005), 290 NBR(2d) 79 (CA),290 NBR(2d) 79
• Date: 04 August 2005
• Court: Court of Appeal (New Brunswick)

Doiron v. Haché (2005), 290 N.B.R.(2d) 79 (CA);

    290 R.N.-B.(2e) 79; 755 A.P.R. 79

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: [2005] N.B.R.(2d) TBEd. SE.018

Bernice Doiron (plaintiff/appellant) v. Dr. Alban Haché (defendant/respondent)

(26/03/CA; 2005 NBCA 75)

Indexed As: Doiron v. Haché

New Brunswick Court of Appeal

Turnbull, Robertson and Richard, JJ.A.

August 4, 2005.

Summary:

Doiron sued an orthopedic surgeon for damages for the surgeon's negligence in treating a Colles type fracture to her wrist.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at [2003] N.B.R.(2d) (Supp.) No. 7, dis­missed the action and provisionally assessed damages. Doiron appealed.

The New Brunswick Court of Appeal dismissed the appeal.

Evidence - Topic 2401

Special modes of proof - Presumptions - Specific presumptions - Inference from failure to call or adduce available evidence - The defendant in a medical malpractice action caused a notice of expert witness relating to a physiatrist (Smith) to be served on the plaintiff - That same month, at the defendant's request, another physi­cian (Stiles) examined the plaintiff - Nei­ther physician was called to testify at trial - The plaintiff appealed the dismissal of her action, asserting that the trial judge should have drawn an inference that Smith's and Stiles' testimonies would not have been favourable to the defendant - The New Brunswick Court of Appeal rejected the assertion - This was not an unusual case where an adverse inference could have been drawn - The plaintiff had to show that Smith and Stiles were ma­terial witnesses and that only the defendant could have brought them before the court - Smith had no involvement in this case and the notice of expert given regarding his possibly being called was in anticipation of involvement that did not materialize - The plaintiff was provided with the results of Stiles' assessment and knew that the defen­dant would not be calling him - Nothing prevented the plaintiff from calling Stiles to testify at trial - See paragraphs 103 to 110.

Medicine - Topic 3048

Relation with patient - Consent to treat­ment - Negligence or fault - Duty of the treating doctor to inform patient - Doiron suffered a Colles type wrist fracture - Haché, an orthopedic surgeon, reduced the fracture and maintained anatomical posi­tion with a cast - Doiron continued to have problems - After regular follow up treat­ment, she was referred for a neurological assessment - She was diagnosed with carpal tunnel syndrome - Haché performed a surgical decompression - Pain symptoms increased - Eventually, she was diagnosed with Complex Regional Pain Syndrome (CRPS), Type II - Doiron sued Haché, asserting that he failed to inform her of the risks associated with the surgery - The trial judge rejected the assertion - Although Haché had not advised Doiron of the pos­sibility of developing CRPS, that pos­sibility was not an unusual or special risk inherent in the surgery and it was not the usual custom to inform patients of the risk - Even if Haché had informed Doiron of the risk, a reasonable person in her posi­tion would have opted for the surgery - Further, it was impossible to determine when or why the CRPS first began - The New Brunswick Court of Appeal expressed concern at the trial judge's focus on the usual medical custom in finding that the risk was not material - However, the court dismissed an appeal where the trial judge had not committed palpable and overriding errors - See paragraphs 82 to 102.

Medicine - Topic 3050

Relation with patient - Consent to treat­ment - Negligence - Causation - [See Medicine - Topic 3048 ].

Medicine - Topic 4242

Liability of practitioners - Negligence or fault - Standard of care - A trial judge stated that "If the evidence establishes that a medical doctor has given treatment in accordance with standard and recognized practices of the medical profession, unless the practice is demonstrably unsafe or dangerous that fact is strong evidence that he has exercised the reasonable degree of care and skill required." - The New Bruns­wick Court of Appeal affirmed the trial judge's characterization of the standard of care - See paragraph 77.

Medicine - Topic 4248

Liability of practitioners - Negligence or fault - Failure to inform or disclose (incl. treatment choices) - [See Medicine - Topic 3048 ].

Medicine - Topic 4250

Liability of practitioners - Negligence or fault - Failure to diagnose an illness or condition - Doiron suffered a Colles type wrist fracture - Haché, an orthopedic sur­geon, reduced the fracture and maintained anatomical position with a cast - After regular follow up treatment, Doiron was referred for a neurological assessment - She was diagnosed with carpal tunnel syndrome - Haché performed a surgical decompression - Pain symptoms increased - Haché referred Doiron to a specialist who diagnosed her as having Complex Regional Pain Syndrome (CRPS), Type II - A trial judge held that Haché met the required standard in diagnosing and treating Doiron - Sensory nerve dysfunction was common in this type of injury and usually was cured over time without surgical interven­tion - The nature of CRPS, which was not common, and the difficulty of early certain diagnosis had to be considered - Failure to diagnose the syndrome earlier did not lead to the conclusion that the treatment was below the standard expected of a prudent and diligent doctor in the same circum­stances - The New Brunswick Court of Appeal dismissed an appeal - See para­graphs 66 to 81.

Medicine - Topic 4252.3

Liability of practitioners - Negligence or fault - Orthopedic surgeons - [See Medi­cine - Topic 4250 ].

Medicine - Topic 4260

Liability of practitioners - Negligence or fault - Defences - Approved practice - [See Medicine - Topic 3048 and Medicine - Topic 4242 ].

Practice - Topic 4166.1

Discovery - General principles - Informa­tion subsequently obtained - The New Brunswick Court of Appeal stated that "Rule 32.09 ['Examination for Discovery ... Information Subsequently Obtained'] clearly vests the trial judge with a discre­tionary power to admit testimony at trial, even if it were inconsistent with the testi­mony given at discovery. The degree of freedom afforded a court in procedural matters under the 'discretion' umbrella is significant but not unfettered. The discre­tion must be exercised judicially, that is 'according to the rules of reason and jus­tice, not according to private opinion', 'according to law' and it must not be 'arbitrary, vague and fanciful, but legal and regular' ... To exercise discretion means to choose between two or more reasonable options. The choice must be made considering the applicable law and guiding principles and on a proper under­standing of the facts. Where the facts are misapprehended and the error is an over­riding factor in the exercise of the discre­tion such that the foundation for the option chosen no longer exists, then an injustice has been done. Where this occurs in the context of those factors listed in Rule 62.21(9) ['Powers of Court of Appeal'], the appellate court must then determine whether the error resulted in substantial wrong or if a miscarriage of justice has resulted." - See paragraph 57.

Practice - Topic 4166.1

Discovery - General principles - Informa­tion subsequently obtained - On October 24, 1993, Doiron suffered fractures to her wrists - She was treated by an orthopedic surgeon (Haché) - Haché eventually re­ferred her to a specialist who diagnosed her as having Complex Regional Pain Syndrome (CRPS), Type II - Doiron sued Haché, alleging that he negligently treated her injuries - On examination for dis­covery, Haché testified that he only be­came aware of Doiron's complaints of numbness on January 13, 1994 - At trial he explained that he had not had the benefit of the entire hospital chart at discovery which revealed complaints of numbness in October 1993 - He acknowledged that he must have been contemporaneously made aware of the complaints - Doiron objected to the testimony because she had not been advised that Haché's discovery testimony was incorrect - The New Brunswick Court of Appeal affirmed the decision to allow the testimony - The trial judge was called upon to balance the parties' interests - The overriding consideration was to ensure that he would, at the end of the trial, be able to justly determine the issues - Even if the trial judge erred in admitting the evidence, there was no substantial wrong or miscar­riage of justice where the trial judge had accepted expert evidence that numbness was a frequent occurrence following a wrist fracture - See paragraphs 53 to 61.

Practice - Topic 6036

Judgments and orders - Reasons for judg­ment after trial or application - Effect of failure to file reasons when required by statute - Final arguments in a medical malpractice action were made on April 26, 2002 - The trial judge delivered judgment dismissing the action on January 24, 2003 - The plaintiff appealed, asserting that a new trial should be ordered because the trial judge did not file his decision until approximately three months past the six month period mandated by s. 7.2 of the Judicature Act - The New Brunswick Court of Appeal rejected the assertion - Whatever the administrative consequences of a failure to comply with s. 7.2 might be, they did not include the invalidation of a judgment on the sole ground that it was not delivered within six months - See paragraphs 111 to 113.

Practice - Topic 8807

Appeals - General principles - Duty of appellate court regarding inferences and inferences from truthful evidence - Rule 62.21 of the Rules of Court permitted the Court of Appeal to "... draw inferences of fact, render any decision and make any order which ought to have been made, and may make such further or other order as the case may require" - The New Bruns­wick Court of Appeal stated that "Rule 62.21(1) does not change the nature of appellate review in this Province. Review for error is the proper approach. Applied to appeals from trial decisions, the Rule simply allows this Court to draw infer­ences where none have been drawn by the trial judge or where the inference drawn at trial is rooted in either (1) a material error of law, (2) a palpable and overriding error in the trial judge's primary findings of facts, or (3) material inferences that are not reasonably supported by the evidence." - See paragraph 75.

Practice - Topic 8809

Appeals - General principles - Duty of appellate court respecting conduct of trial - [See first Practice - Topic 4166.1 ].

Torts - Topic 35

Negligence - Standard of care - Particular persons and relationships - Medical doctors and medical personnel - [See Medicine - Topic 4242 ].

Cases Noticed:

Sharp v. Wakefield, [1891] A.C. 173 (H.L.), refd to. [para. 57].

Wrights' Canadian Ropes Ltd. v. Minister of National Revenue, [1946] S.C.R. 139, varied [1947] A.C. 109 (P.C.), refd to. [para. 57].

Naderi v. Strong (2005), 280 N.B.R.(2d) 379; 734 A.P.R. 379 (C.A.), refd to. [para. 58].

CDP Accès Capital Inc. v. Engrais Chaleur ltée - Chaleur Fertilizers Ltd. et al., [2003] N.B.R.(2d) Uned. 160 (C.A.), refd to. [para. 58].

Bardeaux St-Hilaire Inc. et autre v. Bonen­fant et autres, [2002] N.B.R.(2d) (Supp.) No. 11 (C.A.), refd to. [para. 58].

Canadian Broadcasting Corp. v. New Brunswick Broadcasting Co. (2000), 230 N.B.R.(2d) 332; 593 A.P.R. 332 (C.A.), refd to. [para. 58].

Doucet v. Savoie (1998), 197 N.B.R.(2d) 395; 504 A.P.R. 395 (C.A.), refd to. [para. 58].

Beetham et al. v. Markessini et al. (1997), 190 N.B.R.(2d) 193; 484 A.P.R. 193 (C.A.), refd to. [para. 58].

Repap New Brunswick Inc. v. Pictou et al. (1996), 182 N.B.R.(2d) 228; 463 A.P.R. 228 (C.A.), refd to. [para. 58].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 65].

H.L. v. Canada (Attorney General) et al. (2005), 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1 (S.C.C.), refd to. [para. 65].

Kennedy v. Jackiewicz, [2004] O.J. No. 4816 (C.A.), leave to appeal refused (2005), 341 N.R. 399 (S.C.C.), refd to. [para. 65].

Gallant v. Thibodeau (1998), 206 N.B.R.(2d) 336; 526 A.P.R. 336 (C.A.), refd to. [para. 68].

McAdam et al. v. McIlveen et al. (2002), 252 N.B.R.(2d) 35; 658 A.P.R. 35 (C.A.), refd to. [para. 68].

Reid v. Hatty (2005), 279 N.B.R.(2d) 202; 732 A.P.R. 202 (C.A.), refd to. [para. 68].

H.L. v. Canada (Attorney General) et al. (2002), 227 Sask.R. 165; 287 W.A.C. 165 (C.A.), refd to. [para. 70].

Crits and Crits v. Sylvester et al., [1956] O.R. 132 (C.A.), affd. [1956] S.C.R. 991, refd to. [para. 77].

Thompson v. Creaghan and Miramichi Hospital (1983), 46 N.B.R.(2d) 271; 121 A.P.R. 271 (C.A.), refd to. [para. 77].

Beshara v. Dysart (1998), 207 N.B.R.(2d) 14; 529 A.P.R. 14 (C.A.), refd to. [para. 77].

Lepp v. Hopp, [1980] 2 S.C.R. 192; 32 N.R. 145; 22 A.R. 361, refd to. [para. 84].

Reibl v. Hughes, [1980] 2 S.C.R. 880; 33 N.R. 361, refd to. [para. 84].

White et al. v. Turner et al. (1981), 31 O.R.(2d) 773 (H.C.), affd. (1982), 47 O.R.(2d) 764 (C.A.), refd to. [para. 86].

Hollis v. Dow Corning Corp. et al., [1995] 4 S.C.R. 634; 190 N.R. 241; 67 B.C.A.C. 1; 111 W.A.C. 1, refd to. [para. 88].

Videto et al. v. Kennedy (1981), 33 O.R.(2d) 497 (C.A.), refd to. [para. 89].

Mason v. Forgie (1986), 73 N.B.R.(2d) 193; 184 A.P.R. 193 (C.A.), refd to. [para. 90].

Kueper v. McMullin (1986), 73 N.B.R.(2d) 288; 184 A.P.R. 288 (C.A.), refd to. [para. 90].

Kitchen v. McMullen (1989), 100 N.B.R.(2d) 91; 252 A.P.R. 91 (C.A.), refd to. [para. 90].

Ciarlariello et al. v. Schacter et al., [1993] 2 S.C.R. 119; 151 N.R. 133; 62 O.A.C. 161, refd to. [para. 91].

Arndt et al. v. Smith, [1997] 2 S.C.R. 539; 213 N.R. 243; 92 B.C.A.C. 185; 150 W.A.C. 185, refd to. [para. 91].

Snell v. Farrell, [1990] 2 S.C.R. 311; 110 N.R. 200; 107 N.B.R.(2d) 94; 267 A.P.R. 94, refd to. [para. 94].

Athey v. Leonati et al., [1996] 3 S.C.R. 458; 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243, refd to. [para. 94].

Bryan v. Hicks et al., [1993] B.C.J. No. 662 (S.C.), affd. (1995), 62 B.C.A.C. 109; 103 W.A.C. 109 (C.A.), refd to. [para. 98].

Seney v. Crooks et al. (1996), 189 A.R. 21 (Q.B.), affd. (1998), 223 A.R. 145; 183 W.A.C. 145 (C.A.), refd to. [para. 98].

Lindahl Estate et al. v. Olsen et al. (2004), 360 A.R. 310 (Q.B.), refd to. [para. 105].

Blatch v. Archer (1774), 1 Cowp. 63; 98 E.R. 969, refd to. [para. 107].

R. v. Jolivet (D.), [2000] 1 S.C.R. 751; 254 N.R. 1, refd to. [para. 107].

Lévesque v. Comeau, [1970] S.C.R. 1010; 5 N.B.R.(2d) 15, refd to. [para. 107].

Lambert v. Quinn et al. (1994), 68 O.A.C. 352 (C.A.), refd to. [para. 108].

Ritchie v. Thompson (1994), 155 N.B.R.(2d) 35; 398 A.P.R. 35 (C.A.), refd to. [para. 109].

Statutes Noticed:

Judicature Act, R.S.N.B. 1973, c. J-2, sect. 7.2 [para. 112].

Rules of Court (N.B.), rule 32.09 [para. 50]; rule 62.21(1) [para. 74]; rule 62.21(9) [para. 54].

Authors and Works Noticed:

Picard, Ellen I., and Robertson, Gerald B., Legal Liability of Doctors and Hospitals in Canada (3rd Ed. 1996), p. 128 [para. 87].

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), para. 6.321 [para. 106].

Counsel:

Eugene J. Mockler, Q.C., for the appellant;

Rodney J. Gillis, Q.C., and Nathalie L. Godbout, for the respondent.

This appeal was heard on October 13 and 14, 2004, by Turnbull, Robertson and Rich­ard, JJ.A., of the New Brunswick Court of Appeal. Richard, J.A., delivered the fol­lowing reasons for judgment in both official languages for the court on August 4, 2005.