Toronto General Hospital v. Matthews et al., [1972] SCR 435

Supreme Court of Canada

Toronto General Hospital v. Matthews et al., [1972] S.C.R. 435

Date: 1971-10-05

The Trustees of the Toronto General Hospital (Defendant) Appellant;

and

Dr. R.L. Matthews (Defendant) Respondent;

and

Elizabeth Aynsley, a mentally incompetent person not so found by her next friend Stuart James Aynsley, and the said Stuart James Aynsley (Plaintiffs) Respondents.

1971: May 13, 14; 1971: October 5.

Present: Judson, Ritchie, Hall, Spence and Pigeon JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Negligence—Injuries sustained by patient while undergoing surgery in hospital—Negligence on part of assistant anaesthetist—Employee of hospital and supplied as part of its services to patient—Whether hospital vicariously liable.

A trial judgment whereby the appellant was held liable, together with the respondent M, for injuries sustained by the respondent A while undergoing surgery in the hospital of the appellant was upheld by the Court of Appeal. An appeal to this Court was confined solely to the question of the hospital’s vicarious liability for the negligence of P, a senior resident in anesthesiology, who was assisting M in administering the anaesthetic to the respondent A in preparation for the heart surgery she was to undergo.

Held: The appeal should be dismissed.

The Court was fully in agreement with the conclusion reached by the Court of Appeal that the liability of a hospital for the negligent acts or omissions of an employee vis-à-vis a patient depends primarily upon the particular facts of the case, that is to say, the services which the hospital undertakes to provide and the relationship of the physician and surgeon to the hospital.

The principles expressed as to nurses in The Sisters of St. Joseph of the Diocese of London in Ontario v. Fleming, [1938] S.C.R. 172, are applicable to physicians and even to physicians in the operating theatre.

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APPEAL from a judgment of the Court of Appeal for Ontario[1], upholding a judgment of Morand J. Appeal dismissed.

Isador Levinter, Q.C., and Gordon R. Dryden, for the defendant, appellant.

D.K. Laidlaw, Q.C., for the defendant, respondent, Dr. R.L. Matthews.

W.H.O. Mueller, for the plaintiffs, respondents, Elizabeth Aynsley and Stuart James Aynsley.

The judgment of the Court was delivered by

HALL J.—This is an appeal from the Court of Appeal for Ontario[2] which upheld the judgment of Morand J. who had held the appellant liable, together with the respondent Dr. R.L. Matthews, for injuries sustained by the respondent Elizabeth Aynsley while undergoing surgery in the hospital of the appellant.

The appeal is confined solely to the question of the hospital’s vicarious liability for the negligence of one Dr. Porteous, a senior resident in anaesthesiology, who was assisting Dr. Matthews in administering the anaesthetic to the respondent Elizabeth Aynsley in preparation for the heart surgery she was to undergo. The damages fixed by the Court of Appeal are not in dispute. Dr. Matthews did not appeal.

The facts are fully set out in the judgment of Morand J. reported [1968] 1 O.R. 425 at pp. 427‑36, 66 D.L.R. (2d) 575 at pp. 577-86. The relationship of Dr. Porteous to the hospital is set out in the judgment of Aylesworth J.A. as follows:

What then was the relationship between Dr. Porteous and the hospital? Dr. Porteous, as has been noted already, was a highly skilled, trained anaesthetist—a specialist with several years experience in this his chosen line of work. As such he was a full-time member of the hospital staff, paid by the hospital, and assigned by the hospital to assist from time to time consulting anaesthetists in the operating rooms of the hospital. The equipment was supplied by the hospital and a charge was made to the patient for the use of the operating room; in other words, the hospital undertook to furnish to the patient as part of the hospital service an operating

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theatre, the required equipment in good order and the services free from negligence of a properly qualified assistant to the patient’s anaesthetist. A perusal of the medical evidence makes it abundantly clear that in the type of operation under review the safety of the patient and the success of the operation required the participation of two anaesthetists; it was of necessity a team effort; each anaesthetist had many tasks to attend to individually and concurrently with the other anaesthetist. While the senior, Dr. Matthews, was in charge and control in the sense that he could and did either assign or decide upon the division of the work, he could not and did not control everything Dr. Porteous was required to do or his manner of doing it; each of them of necessity acted in many tasks on his own responsibility and judgment. One such task, it is plain, was the manometer end of the calibrating procedure attended to by Dr. Porteous in the operating theatre proper while Dr. Matthews, in another room, “calibrated” the monitor. The negligence of Dr. Porteous, in my view, was a failure by the hospital staff itself to discharge efficiently its undertaking to the patient and I would allow the judgment against the hospital to stand; he was, I think, under a contract of service with the hospital but, in my view, the legal result would be the same if his had been a contract for services. In addition to what I have already said on this subject, I wish to concur in the following observations taken from the reasons for judgment of the learned trial Judge [[1968] 1 O.R. at pp. 439-41, 66 D.L.R. (2d) at pp. 589-91]:

“Dr. Porteous was… a highly skilled trained anaesthetist who was assisting Dr. Matthews in the necessary calibrating of the monitor. While under the orders of Dr. Matthews, he was to carry out these orders in a manner consistent with his training… Since, in my view, he was an employee of the hospital and supplied as part of its services to the patient, even though under the direction of Dr. Matthews, I hold that the hospital is vicariously liable for his negligence.

* * *

In the case in question, Dr. Porteous was directed by Dr. Matthews to assist in calibrating the machine, but it was in the pumping of the manometer as part of his duties as an assistant anaesthetist employed by the hospital that Dr.

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Porteous was negligent and this was done while Dr. Matthews was in the next room.

* * *

In the instant case, however, Dr. Porteous was obviously expected to use his training and abilities aside from following direct orders of Dr. Matthews. Since the calibration required Dr. Matthews to be out of the room and out of view of the actions of Dr. Porteous at the time he, Dr. Porteous, pumped the manometer, it appears clear to me that Dr. Porteous would be expected to use professional skill in the manner in which the manometer was pumped. This, in my view, he failed to do and as a permanent employee of the hospital, the hospital is vicariously liable for his negligence.”

In his judgment, Aylesworth J.A., with whom Evans and Brooke JJ.A. concurred, reviewed all the relevant cases beginning with Hillyer v. The Governors of St. Bartholomew’s Hospital[3], and he dealt in particular with the case in this Court of The Sisters of St. Joseph of the Diocese of London in Ontario v. Fleming[4].

Davis J. who delivered the judgment in the Fleming case, after extensively reviewing the Hillyer case and subsequent cases criticizing, distinguishing or limiting its application, said concerning that case at p. 188 of the report:

The statement of Lord Justice Kennedy in Hillyer’s case as to the difference between ministerial or administrative duties, on the one hand, and matters of professional care or skill, on the other hand, is entitled to great weight and respect, but even the decision in the case is not binding upon this Court.

and at p. 190:

After the most anxious consideration we have concluded that, however useful the rule stated by Lord Justice Kennedy may be in some circumstances as an element to be considered, it is a safer practice, in order to determine the character of a nurse’s employment at the time of a negligent act, to focus attention upon the question whether or not in point

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of fact the nurse during the period of time in which she was engaged on the particular work in which the negligent act occurred was acting as an agent or servant of the hospital within the ordinary scope of her employment or was at that time outside the direction and control of the hospital and had in fact for the time being passed under the direction and control of a surgeon or physician, or even of the patient himself. It is better, we think, to approach the solution of the problem in each case by applying primarily the test of the relation of master and servant or of principal and agent to the particular work in which the nurse was engaged at the moment when the act of negligence occurred.

Aylesworth J.A., having quoted these extracts from Fleming’s case, said:

I respectfully adopt that principle as binding upon this Court and in the statement thereof by Davis, J., I perceive no limitation of the application of the principle to acts by a nurse outside the operating theatre or not committed by her during the course of an operation. While it well may be that a nurse is seldom, if ever, while acting in the course of an operation, to be considered for the time being as an employee of the hospital, that is a question of fact in each case and does not impinge upon the principle itself. I also conclude that by analogy, at least, the same principle applies to a physician or surgeon, not only outside of the operating room but within it and that in each case it is a question of fact to be determined whether or not the physician or surgeon, a member of the staff of the hospital and, generally speaking, an employee of that hospital is, at the time of the commission of the act complained of, an employee of the hospital or acting in a different capacity. Certainly for all that was said in the St. Joseph case, it is open to this Court so to decide.

From this base Aylesworth J.A., after reviewing a number of cases subsequent to Fleming’s case, concluded as follows:

The cases under review both in this country and in England make it clear, I think, that the liability of a hospital for the negligent acts or omissions of an employee vis-à-vis a patient, depends primarily upon the particular facts of the case, that is to say, the services which the hospital undertakes to provide and the relationship of the physician and surgeon to the hospital. The introduction into

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England of nationalized medicine probably has greatly altered the factual situation in that country with respect to the inquiries I have just mentioned, but each case there, I take it, will turn upon its particular facts. Similarly, I think in Ontario vicarious liability will be driven home to the hospital or plaintiffs will fail in that attempt, depending upon the peculiar facts of each case.

In this regard, I cannot refrain from observing that the more modern cases in England at the appellate level would seem to be drawing ever nearer to the principle, so far as nurses are concerned, enunciated in the Supreme Court of Canada in the St. Joseph case and, as I have already said, in my view it is open to this Court to apply those principles expressed as to nurses, to physicians and even to physicians in the operating theatre.

(Emphasis added.)

I am fully in agreement with Aylesworth J.A. in the conclusion which he reached in the paragraphs quoted above and I would, accordingly, dismiss the appeal with costs.

Appeal dismissed with costs.

Solicitors for the defendant, appellant: Levinter, Dryden, Bliss, Maxwell, Levitt & Hart, Toronto.

Solicitors for the defendant, respondent, Dr. R.L. Matthews, McCarthy & McCarthy, Toronto.

Solicitors for the plaintiffs, respondents, Elizabeth Aynsley and Stuart James Aynsley: Thomson, Rogers, Toronto.