Villemure v. Turcot et al., [1973] SCR 716

Supreme Court of Canada

Villemure v. Turcot et al., [1973] S.C.R. 716

Date: 1972-06-29

Dame Huguette Villemure (Plaintiff) Appellant;

and

l’Hôpital Notre-Dame

and

Doctor Georges H. Turcot (Defendants) Respondents.

1972: March 3 and 6; 1972: June 29.

Present: Fauteux C.J. and Abbott, Ritchie, Hall and Pigeon JJ.

ON APPEAL FROM THE COURT OF APPEAL, APPEAL SIDE, PROVINCE OF QUEBEC

Negligence—Mental disease—Suicide—Patient without surveillance—Act in accord with current medical practice—Doctor acting as an independent professional man—Obligation of a doctor towards his patient—Evidence of fault—Hospital’s responsibility.

The appellant’s husband fell to his death from a window of the hospital where he had been admitted for psychiatric treatment after being transferred from the psychiatric wing to a semi-private room on the respondent’s instructions. The trial judge held the hospital and the psychiatrist liable for the death of the patient. This judgment was reversed by a majority judgment of the Court of Appeal. Hence the appeal to this Court.

Held (Ritchie and Pigeon JJ. dissenting): The appeal should be allowed.

Per Fauteux C.J. and Abbott and Hall JJ: For the reasons given by the dissenting judge in the Court of Appeal, the appeal should be allowed.

Per Ritchie and Pigeon JJ., dissenting: In order to decide whether the doctor committed a fault in granting his patient’s wish to be put in a semi-private room, instead of in the ward with barred windows, the Courts are not required to consider whether the open door system is really preferable to barred windows. They must be guided in their decision by the following criterion: was the act in accord with current medical practice? The experts were unanimous in stating that it was. The obligation of a doctor towards his patient is one of means, not one of result. In order to establish professional fault, it is necessary to show that the occurrence which was not supposed to happen but occurred nevertheless and caused dam-

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ages, would not have occurred if there had been no negligence.

Moreover, the hospital was committing no fault in following the doctor’s orders, the latter acting as an independent professional man whose services had been retained not by the hospital, but by the patient himself through his family doctor.

Finally, it has not been proven that the appellant’s husband acted in a fit of insanity. We are concerned with a person who was gravely ill and displayed extremely grave symptoms, and could have consciously decided to take his life in the belief that he was beyond recovery. There has been no medical evidence establishing the probability of recovery with proper care.

APPEAL from a judgment of the Court of Queen’s Bench, Appeal Side, Province of Quebec[1], reversing a judgment of Challies C.J. Appeal allowed, Ritchie and Pigeon JJ. dissenting.

J. Flynn, Q.C., for the plaintiff, appellant.

L.P. de Grandpré, Q.C., for the defendant, Hôpital Notre-Dame, respondent.

P. Sébastien, for the defendant, Dr. Turcot, respondent.

The judgment of Fauteux C.J. and Abbott and Hall JJ. was delivered by

THE CHIEF JUSTICE—For the reasons given in this case by Mr. Justice Choquette of the Court of Appeal¹ of the Province of Quebec, I would allow the appeal and restore the judgment of Chief Justice Challies of the Superior Court. The appellant is entitled to her costs here and in the Court of Appeal.

The judgment of Ritchie and Pigeon JJ. was delivered by

PIGEON J. (dissenting)—The appeal is seeking reinstatement of a judgment of the Superior

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Court which held the hospital and the psychiatrist liable for the death of appellant’s husband by suicide. The key portion of the reasons of the trial judge reads as follows:

In the opinion of the Court, in view of the warnings and most particularly in view of the warning by the interne Dr. Maugile—“Patient à surveiller”—Dr. Turcot should have left the patient in the psychiatric wing where the windows were barred, should have given instructions to the nursing staff to pay particular attention to him, and should have asked or had the staff ask the other patients in his room (unless there was some evidence that this would disturb them and delay their recovery) to keep a particular eye on him.

The Court is unable to accept the opinion of Doctors Fortin and Saucier. It may be that they would have done exactly what Dr. Turcot did. Had they done so, in the opinion of the Court they would have been wrong and negligent. It is no answer to say it is impossible absolutely to prevent a person from committing suicide unless he is placed in a straight jacket. This of course is obvious. But it is surely possible to prevent him from committing suicide for 30 hours and until a sufficient investigation has been made into his condition to be able more accurately to diagnose his true situation. The Court also rejects Dr. Saucier’s view that there were many factors which indicated that the patient’s condition was not nearly as serious as might at first have been thought. The facts as proven of what happened prior to the entry into the hospital, coupled with the incidents in the hospital, indicate to the Court rather a situation which should have made both Dr. Turcot and the nurses take particular care of the deceased.

In my opinion the majority of the Court of Appeal[2] correctly held this to be erroneous reasoning. As Mr. Justice Taschereau points out, the three psychiatric experts who testified in this case stated that if they had had the patient under their care, they would have “done exactly the same thing as Dr. Turcot did”. No evidence was adduced to contradict this testimony and, with respect, I cannot see on what basis the trial judge refused to accept the opinion of the expert witnesses and found that if they had

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acted as Dr. Turcot did, they would have committed a fault.

The precautions to be taken with regard to the mentally ill are clearly within the province of psychiatric medicine. Those who practise this difficult art have abandoned the system of constant surveillance or confinement which was formerly the rule. On what grounds can the courts blame them for doing so? In order to decide whether Dr. Turcot committed a fault in granting his patient’s wish to be put in a semi-private room, instead of in the ward with barred windows, we are not required to consider whether the open door system is really preferable to barred windows. We must be guided by the following criterion: was the act in accord with current medical practice? Now, the evidence is not contradictory. The experts, including one who is not mentioned by the trial judge, Dr. Straker, were unanimous in stating that it was. Surely, a judge should not be permitted to rely on his personal opinion and to find a psychiatrist at fault for having prescribed an insufficient sedative dose, ignoring expert opinion as to the sufficiency of that dose. I do not see why the situation would be different for the system of surveillance, the more so when it is clearly established by the experts that this is a therapeutic factor which must be considered in treatment leading to recovery.

But, says the trial judge, it is surely possible to prevent someone from committing suicide for thirty hours. At first sight this may seem to be an attractive proposition, however it does not stand close examination. First of all, where is the line to be drawn? It was thirty hours in this case, in the next one it may be forty-eight or seventy-two. When can the psychiatrist start to apply the open door system which, in his judgment, is therapeutically desirable, without being at fault? And then, what is the basis for finding that the occurrence of suicide within thirty hours of admission to the hospital constitutes proof of fault on the part of the psychiatrist? In

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my view this result was reached only by assuming that this could not have occurred without a fault having been committed. The evidence does not support such an assumption. By treating the fact itself as evidence of fault, one loses sight of the fundamental principle that the obligation of a doctor towards his patient is one of means, not one of result. This does not mean that professional fault by a doctor may not be established by presumptions, like any other fault, but for this to be done the necessary conditions must be fulfilled, namely, as stated by Taschereau J. (as he then was) in Parent v. Lapointe[3]:

[TRANSLATION] When in the normal course of events an occurrence is not supposed to happen, but occurs nevertheless, and causes damage to another, and when it clearly would not have occurred if there had been no negligence, then, it is for the person who brought it about to show that there was an independent cause for which he cannot be held responsible, and which produced such damage.

I have italicized the words “when it clearly would not have occurred if there had been no negligence”. This is what has to be proven before the outcome may be regarded as conclusive evidence of fault. In Martel v. Hôtel-Dieu St-Vallier[4], liability was found because in that case such proof had been made. The medical experts had testified that the kind of anaesthesia employed would not have resulted in the paresis with which plaintiff was afflicted unless there had been faulty administration. Here there was no evidence tending to establish fault by the psychiatrist, except the bald fact itself, i.e. the result.

In my view the note of the intern, Dr. Maugile, “patient to be watched,” cannot be treated as evidence of fault against Dr. Turcot. It is conceivable that this intern did not want to decide before the patient’s doctor arrived what procedure was to be followed with the patient, and so

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opted for maximum precautions. Nothing in this case indicates that Dr. Turcot subsequently committed a professional fault in deciding otherwise. Indeed, as we have seen, the three expert witnesses were unanimous in saying that they would have done likewise in similar circumstances.

It seems to me there is even less reason to hold the hospital responsible for not having followed Dr. Maugile’s instructions when, on Dr. Turcot’s instructions, the patient was transferred to a semi-private room. In prescribing this move with no instructions for special care, the psychiatrist clearly intended him to be treated like any other patient. The hospital was committing no fault in following the doctor’s orders, the latter acting as an independent professional man whose services had been retained not by the hospital, but by the patient himself through his family doctor. On this point Taschereau J. appears to me to have correctly applied the principles stated in the Martel case. While in that case, it was held that the anaesthetist at fault was in the position of a servant of the hospital, and involved the latter in liability as a principal, this was because the evidence established a legal position of a very special kind. The anaesthetists were hospital employees, putting patients under anaesthesia in the performance of their duties, without their services being requested either by the patient or through his medical practitioner. They were, therefore, in quite a different position than Dr. Turcot in the present case; rather, they were in a legal position comparable to that of nurses or other persons employed by a hospital for the purpose of providing care to the patients.

In spite of the sympathy which appellant’s misfortune may arouse, the total absence of any medical evidence to support her claim cannot be overlooked. Not only is there no indication of professional fault, but in addition there is the disturbing fact that, before his first attempt at

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suicide, appellant’s husband had suffered a serious weight loss. Could he not have consciously decided to take his life, in the belief that he was beyond recovery? This was not proven, but it was not shown either that he acted in a fit of insanity. We are not concerned with an accident victim, but with a person who was gravely ill, and displayed extremely grave symptoms. In order to support a claim in such circumstances, should there not have been medical evidence establishing the probability of recovery with proper care? No attempt to introduce such evidence was made. In allowing the action the trial judge assumed, first, that appellant’s husband had committed suicide in a fit of insanity, and second, that if he could have been prevented from doing so, he would have recovered his health and been able to return to work.

I would dismiss the appeal with costs.

Appeal allowed with costs, RITCHIE and PIGEON JJ. dissenting.

Solicitors for the plaintiff, appellant: Flynn, Rivard & Ass., Quebec.

Solicitors for the defendant, respondent, Hôpital Notre-Dame: Tansey, de Grandpré & Ass., Montreal.

Solicitors for the defendant, respondent, Dr. Turcot: Lafleur & Brown, Montreal.