Goodman v. Viljoen, 2012 ONCA 896

• Judge: Doherty, Feldman and LaForme, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: January 17, 2012
• Jurisdiction: Ontario
• Citations: 2012 ONCA 896;(2012), 299 O.A.C. 257 (CA)

Goodman v. Viljoen (2012), 299 O.A.C. 257 (CA)

MLB headnote and full text

Temp. Cite: [2012] O.A.C. TBEd. DE.059

Paul Goodman, Jaqueline Goodman, Calvin Goodman, a minor by his litigation guardian, the Children's Lawyer and Daniel Goodman, a minor by his litigation guardian, the Children's Lawyer (plaintiffs/respondents) v. Johan Viljoen (defendant/appellant)

(C53377; 2012 ONCA 896)

Indexed As: Goodman v. Viljoen

Ontario Court of Appeal

Doherty, Feldman and LaForme, JJ.A.

December 20, 2012.

Summary:

Calvin Goodman and Daniel Goodman were twin brothers. They were delivered prematurely on August 18, 1995. Both developed cerebral palsy. They sued the defendant, Dr. Viljoen, their mother's obstetrician, for negligence.

The Ontario Superior Court, in a decision reported at [2011] O.T.C. Uned. 821, allowed the action. The defendant appealed.

The Ontario Court of Appeal, Doherty, J.A., dissenting, dismissed the appeal.

Medicine - Topic 4241.2

Liability of practitioners - Negligence - Causation - A mother was pregnant with twins - Dr. Viljoen was her obstetrician - The mother saw Dr. Viljoen on August 9, 1995 - Routine tests showed a urinary infection and Dr. Viljoen prescribed antibiotics - On August 16, the mother awoke to feel fluid gushing out of her - There was no sign of any blood in the fluid - The mother called Dr. Viljoen's office later on August 16 and reported the fluid leakage - Dr. Viljoen's secretary, after speaking to Dr. Viljoen, told the mother that the leakage was related to the bladder infection and that she should continue to take the antibiotics - The mother awoke on the morning of August 18 feeling "crampy" - As Dr. Vilojen was unavailable, the mother saw her family doctor, who immediately sent her to the hospital - The mother was in premature labour and the membranes had ruptured - The hospital was able to administer a single dose of antenatal corticosteroids (ACS) hours before the twins were delivered - The twins developed cerebral palsy (CP) caused by diffuse periventricular leukomalacia (PVL), a condition common with premature babies - The plaintiffs sued Dr. Viljoen for negligence - The trial judge allowed the action, finding that Dr. Viljoen had been negligent and his negligence caused the twins' CP - Dr. Viljoen appealed - At issue was causation, i.e., whether the plaintiffs could establish a causal link between the twins' CP and the failure to give the mother a full course of ACS prior to the twins' delivery - The Ontario Court of Appeal dismissed the appeal - The standard of review was to defer to the evidentiary findings of the trial judge unless her findings had no basis in the evidence - This was a complex medical malpractice case - The causation issue was particularly difficult because there were no specific scientific studies on which the experts or the parties could rely for definitive answers to the specific issues before the court - The administration of ACS in the case of premature births had such a significant positive effect, including on the incidence of CP from certain causes, that the accepted standard of care was to administer the ACS in all such cases - However, that did not mean that the failure to do so in any particular case caused the CP in that case - The trial judge understood both the deficiencies in the available experimental evidence and the analysis she had to conduct to be satisfied of causation to the required standard - She made no error of law or palpable and overriding error in the apprehension of the evidence, including the expert opinion evidence, or in her findings of fact based on the robust and pragmatic approach - See paragraphs 109 to 146.

Medicine - Topic 4252.2

Liability of practitioners - Negligence or fault - Obstetrical or gynaecological care - [See Medicine - Topic 4241.2 ].

Medicine - Topic 4255.1

Liability of practitioners - Negligence or fault - Prenatal care - [See Medicine - Topic 4241.2 ].

Cases Noticed:

Ediger v. Johnston et al. (2011), 305 B.C.A.C. 271; 515 W.A.C. 271; 333 D.L.R.(4th) 633; 2011 BCCA 253, leave to appeal granted (2012), 433 N.R. 392 (S.C.C.), refd to. [para. 70].

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. 71].

Clements v. Clements (2012), 431 N.R. 198; 346 D.L.R.(4th) 577; 2012 SCC 32, refd to. [para. 71].

Fisher v. Atack et al. (2008), 242 O.A.C. 164; 2008 ONCA 759, leave to appeal refused (2009), 401 N.R. 399; 267 O.A.C. 400 (S.C.C.), refd to. [para. 71].

Aristorenas v. Comcare Health Services et al. (2006), 216 O.A.C. 161; 83 O.R.(3d) 282 (C.A.), leave to appeal refused (2007), 368 N.R. 394; 233 O.A.C. 398 (S.C.C.), refd to. [para. 71].

Laferrière v. Lawson, [1991] 1 S.C.R. 541; 123 N.R. 325; 38 Q.A.C. 16, refd to. [para. 84].

Cottrelle et al. v. Gerrard et al. (2003), 178 O.A.C. 142; 67 O.R.(3d) 737 (C.A.), leave to appeal refused (2004), 330 N.R. 194; 196 O.A.C. 398 (S.C.C.), refd to. [para. 92].

Goodman v. Viljoen, [2011] O.T.C. Uned. 821; 2011 ONSC 821, refd to. [para. 112].

Hanke v. Resurfice Corp. et al. (2007), 357 N.R. 175; 404 A.R. 333; 394 W.A.C. 333; 2007 SCC 7, refd to. [para. 113].

Stein Estate v. Ship Kathy K, [1976] 2 S.C.R. 802; 6 N.R. 359, refd to. [para. 142].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 142].

H.L. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 401; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1; 2005 SCC 25, refd to. [para. 142].

Counsel:

J. Thomas Curry, Anne Posno and Rebecca Jones, for the appellant;

Donald Rogers and Anita Varjacic, for the respondents.

This appeal was heard on January 17, 2012, by Doherty, Feldman and LaForme, JJ.A., of the Ontario Court of Appeal. The decision of the Court of Appeal was delivered on December 20, 2012, and the following opinions were filed:

Doherty, J.A., dissenting - see paragraphs 1 to 108;

Feldman, J.A. (LaForme, J.A., concurring) - see paragraphs 109 to 146.