Joseph Brant Memorial Hospital v. Koziol, [1978] 1 SCR 491

Supreme Court of Canada

Joseph Brant Memorial Hospital v. Koziol, [1978] 1 S.C.R. 491

Date: 1977-05-17

Joseph Brant Memorial Hospital and Nurse G. Malette (Plaintiffs) Appellants;

and

Katherine Koziol and Joseph Koziol, by Suggestion (Defendants) Respondents;

and

Terrance L. Jeffries Respondent.

1977: February 23, 24; 1977: May 17.

Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Appeal—Negligence—Death of patient in hospital—Death due to regurgitation and chocking—Patient confined to Stryker frame—Nursing care—Findings of fact by trial judge—Function of appellate court.

In January 1969, Kolesar, while driving, was involved in a collision with an automobile owned and driven by Jeffries and sustained serious injuries. The collision was due solely to the negligence of Jeffries. Kolesar’s injuries required very much later surgical treatment and in December 1969 Kolesar had the operation known as spinal fusion in the defendant Hospital. After the operation the still unconscious patient was placed in a Stryker frame and removed to the surgical ward. The patient was some three hours later visited by the surgeon who gave orders for his care appropriate to a patient confined in a Stryker frame. Some hours thereafter Koselar was visited by his wife who found him very pale, having pain in the head, neck and back and complaining of a heavy feeling in his stomach. Early the next morning Koselar was found either dead or so close to it that attempts to resuscitate him failed. Particular care must be exercised in the treatment of such a patient since amongst other problems which may arise as a result of confinement in the frame there is the grave risk of regurgitation which may be either suddenly massive or minimal over a period of time and may result in a flow into oesophagus, pharynx and lungs. The patient Kolesar should be aroused periodically and made to cough to prevent this. He should not have been given large quantities of fluids. He should have had physiotherapy and his blood pressure, respiration, pulse and temperature should have been taken and recorded at regular intervals. He should have been watched carefully. The limited records avail-

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able indicated that the patient was all times quite pale and allowed to sleep soundly all night. Judgment was entered by the trial judge against Jeffries, the other driver, and all the other defendants except the surgeon. The Court of Appeal in dismissing the appeal of the present appellants refused to accept the finding of fact as to the negligence of the hospital nurse and dismised the appeal by an application of Cook v. Lewis, [1951] S.C.R. 830.

Held: The appeal should be dismissed.

The judgment in Cook v. Lewis, [1951] S.C.R. 830, has no application to the circumstances in the present appeal. However it is a well-known principle that appellate tribunals should not disturb findings of fact made by a trial judge if there were credible evidence before him on which he could reasonably base his conclusion. The trial judge heard evidence, judged it to be credible, and accepted it as a basis for his conclusion. It is not the function of an appellate court to reconsider that evidence whether it be upon facts or a matter of professional opinion and come to a different conclusion, unless it can be shown that the evidence reasonably could not result in justifying the conclusion of the trial judge. In this case the trial judge had evidence before him as to the conduct of Nurse Malette, and therefore the responsibility of the hospital.

Cook v. Lewis, [1951] S.C.R. 830; Mann v. Balaban, [1970] S.C.R. 74 referred to.

APPEAL from a judgment of the Court of Appeal for Ontario dismissing an appeal from a judgment of Haines J. Appeal dismissed.

J.J. Fitzpatrick, Q.C., and H. Poss, for the appellants.

E.J. Orzel, Q.C., and M.L. Baker, for the respondent, Koziol.

W.S. Wigle, Q.C., and T.J. McGoey, for the respondent, Jeffries.

The judgment of the Court was delivered by

SPENCE J.—This is an appeal from the judgment of the Court of Appeal for Ontario pronounced on January 15, 1976. By that judgment,

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the Court of Appeal for Ontario dismissed the appeal of the present appellants, the Joseph Brant Memorial Hospital and Nurse G. Malette, from the judgment of Haines J. pronounced on January 21, 1975 but allowed the appeal from that latter judgment in so far as it gave judgment against four other defendants and third parties Nurse E. Tilman, Nurse D. Stroop, Nurse Janet Stannix and Nurse Margaret Bragger.

The judgment of the Court of Appeal for Ontario confirmed the dismissal of the action as against the defendant Dr. Shri K. Bhalla and made variations as to the costs payable by the various parties.

The appeal to this Court was taken only against the plaintiff Julie Kolesar, Administratix of the Estate of William Kolesar, deceased, and Terrance L. Jeffries.

The plaintiff Julie Kolesar died prior to the hearing of the appeal in this Court and by a Suggestion filed on February 10, 1977 Katherine Koziol and Joseph Koziol were made parties respondents to the appeal.

Some considerable reference to the circumstances involved in this appeal is necessary.

On January 2, 1969, the late William Kolesar, while driving his motor vehicle, became involved in a collision with an automobile owned and driven by the defendant Terrance L. Jeffries and as a result thereof Kolesar sustained serious injuries. It was admitted throughout the litigation that the collision was due solely to the negligence of Jeffries. Those injuries required, very much later, surgical treatment and on December 30, 1969 the late William Kolesar underwent surgical treatment by the defendant Dr. Bhalla. This operation was for the correction of a condition described as traumatic spondylolysis and the operation may be colloquially described as spinal fusion. The operation was completed at about 12:10 p.m. on December 30, 1969. After the operation and while the patient was still unconscious, he was placed in a Stryker frame. The patient was removed to the surgical ward. He was visited by his surgeon Dr. Bhalla at

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3:30 p.m. who gave orders for his care appropriate to a patient so confined in a Stryker frame.

From 6:00 to 8:00 p.m., the late William Kolesar was visited by his then wife, the late Julie Kolesar, who in her evidence described her husband as being very pale, in a lot of pain in his head, neck and back and complaining of a heavy feeling in his stomach. At 5:00 o’clock the next morning, December 31, 1969, Kolesar was found either dead or so close to death that he died immediately therafter despite the attempts of a Dr. Michael Watts to resuscitate him. This litigation resulted.

The trial only commenced on November 7, 1974, almost five years later, and during that time there had been a great deal of examination for discovery carried on by all parties. When the action was called for trial in Hamilton, Mr. Justice Haines was presiding at an Assize for the trial of actions with a jury. A jury notice had been served in this action but had been stricken out. The case had, however, remained on the list for trial of actions with a jury. The conduct of Mr. Justice Haines in what was alleged to be a forcing of the parties on to trial was made subject to serious complaint in the appeal and Jessup J.A., giving the judgment for the Court of Appeal, said:

A ground of complaint if not of appeal is the way in which the learned trial judge became seized of the case.

After the judgment in the Court of Appeal, the appellants to this Court applied for leave to reargue the appeal on a fresh point, i.e., that the bias and unjudicial conduct of the trial judge were such as to have deprived the appellants of their right to a fair trial. By reasons for judgment delivered on February 27, 1976, the Court of Appeal for Ontario dismissed that application but gave leave for amendment of the notices of appeal “so that the appellants may, if they were so advised, apply to the Supreme Court of Canada for leave to also argue that issue if an application to that Court were taken”.

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This Court, on April 5, 1976, granted leave to the present appellants to appeal and notice of appeal was filed dated April 22, 1976.

At the opening of the appeal in this case, the appellants presented a notice of motion dated February 17, 1977, for leave to file a supplementary factum dealing with the following ground of appeal:

That there was an appearance of bias on the part of the learned trial judge which deprived the appellants of their right to a fair trial.

After counsel for the appellants had addressed the Court upon such application and after discussion with members of the Court, counsel withdrew such application and in these reasons it is not my intention to deal any further with that so-called ground of appeal.

The action by the present respondent Kolesar as against the appellants was based on an allegation that Kolesar came to his death due to aspiration which was cause by a failure to give him proper care and attention between the time of his removal unconscious from the operating room encased in a Stryker frame and the time of his death some seventeen hours later. There had been no admission by the present appellants that such aspiration had been the cause of death but in the long series of examinations for discovery there had been no suggestion of any other possible cause of death.

At the opening of the trial before Haines J., counsel for both appellants made their position very clear that there had been no admission of such cause of death but it was equally clear that at that time they had no information which would lead them to suggest any other cause of death.

I quote the statement made by counsel for the appellant hospital and agreed to by his co‑counsel:

I can advise Your Lordship and my friend Mr. Wigle (counsel for the defendant Jeffries) that as of this time we have no evidence to indicate that the cause of death was other than as a result of aspirating gastric fluid.

Jessup J.A., in his reasons for judgment, said:

…but in any event it is painfully evident from the cross-examination of the plaintiff’s witnesses that nei-

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ther was fully aware of another theory of death, if aware at all, until at least the close of the plaintiff’s case.

The plaintiffs’ counsel proceeded to prove his case by adducing the evidence of a surgeon, Dr. Hudecki, two nursing experts, and other medical evidence, as to the care which must be exercised in the treatment of a patient confined in a Stryker frame, and also the evidence of the pathologist who performed an autopsy on the late William Kolesar and another expert pathologist.

The Stryker frame resembles a narrow bed with apparatus that enables the bed to be turned over 180 degrees on its longitudinal axis so that the supine patient is then lying face downwards on the frame. He is strapped into the frame so that he remains in a fixed position permitting healing to proceed. This frame must be rotated as required at intervals directed by the surgeon. The use of the frame presents some problems to those who have management of the patient’s care. Chief amongst those problems would appear to be the grave risk of regurgitation contributed to by many factors which need not be outlined in detail. For this reason, great care must be taken not to give the patient too much fluid and particularly not to allow the contents of his stomach to rise to the point where he might regurgitate. Such regurgitation may be either suddenly massive or minimal over a period of time and may result in a flow into the oesophagus, from there into the pharynx, and then into the lungs.

Haines J. considered particularly the evidence of Nurse Kathleen Stewart and Nurse Patricia O’Connor and accepted their evidence as to the proper treatment which should have been accorded to the late William Kolesar, summarizing as follows:

1. Kolesar should have been roused at 12 p.m. midnight and made to deep breath and cough every 15 minutes at least during the night so that fluids would not collect in his throat and lungs.

[This evidence related to the note timed at 10 p.m. that Kolesar had not voided and had been twice sedated.]

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2. Physiotherapy in the form of movement of the arms should have been given at the same time.

3. The large quantity of fluids ought not to have been given to him orally, and on learning of the fluids which had been given prior to midnight together with the constant flow of intravenous fluids, the nurses should have realized the patient’s body systems were overloaded with fluid. He should have been watched carefully because of the danger of regurgitation, his stomach palpated and catheterized.

4. Blood pressure, respiration, pulse and temperature should have been taken and recorded at regular intervals.

5. The failure to chart and make nurses notes between 10 p.m. on the 30th December and 5 a.m. on the 31st December is a definite breach of basic record keeping in the management of the case. The hospital is an accredited hospital under the Canadian Council on Hospital Accreditation. I do not think I can better emphasize the need of prompt and accurate record keeping than by quoting from Exhibit 31 at p. 69:

On a ward with a great many patients the medical record becomes the common source of information and direction for patient care. If kept properly it indicates on a regular basis the changes in the patient’s condition and alerts staff to developing dangers. And it is perhaps trite to say that if the hospital enforced regular entries during each nursing shift, a nurse could not make the entry until she had first performed the service required of her. In Kolesar’s case the absence of entries permits of the inference that nothing was charted because nothing was done.

6. A post-operative patient is usually very disturbed, sleeps only from hour to hour. If Kolesar was pale, slept peacefully all night, that in itself was a danger signal. He should have been aroused hourly, compelled to deep breath and cough, and if fluid in the throat or tubes was present a suction device should have been brought in.

7. Merely looking at the patient, even if regularly, is not sufficient.

Adopting that standard of care, Haines J. then turned to consider the evidence given by a large number of persons as to the care which the late William Kolesar actually did receive. That evidence was given in large part by three witnesses; the first of these was John Mayes who, on that night, had been a patient in the bed adjoining that of the late William Kolesar; the second was Mrs. I.

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M. Stevens, a nursing assistant. In his reasons for judgment, Haines J. rejected the evidence given by these two witnesses and gave reasons for such rejection. In the Court of Appeal, Jessup J.A. said:

The learned trial judge considered in detail the demeanour and evidence of Mayes and Nursing Assistant Stevens and found their evidence incredible for reasons which do not permit our interference in his findings.

The third person who gave the chief evidence as to that care was Nurse Malette. Nurse Malette gave evidence in very considerable detail but that evidence certainly was not confirmed by any notation in the hospital record and Haines J. found most unsatisfactory the practice which had been followed of not making notes on the charts contemporaneously with the performance of the service or the making of the observation but later in a joint conference at 5:00 a.m. so that the notes represented the memory of the different persons who had been attending the patient during that night. Such a record made in the early morning hours by Nurse Malette was filed as Exhibit 29. Haines J., in his reasons, stated:

One is always suspicious of records made after the event, and if any credence is to be attached to Exhibit 29 it shows that at all times the patient was quite pale, very pale, and was allowed to sleep soundly to his death.

Haines J. came to his conclusion after examining all of the evidence in very considerable detail and after having presided at the trial which took eighteen days in the following words:

On all the evidence I accept the theory advanced by the plaintiff and the defendant Jeffries that the cause of death was the regurgitation of gastric juices occurring from 1 to 3 hours before the death. I accept the evidence of Doctors Stanley Hudecki and Frederick Jaffe and I find that the deceased died slowly over a period of hours. In his weakened state following the surgery, together with the cumulative effect of the drugs and the accompanying anoxia, together with being strapped in a supine position on the Stryker frame, he was limited in his struggles and efforts to call for help. I haven’t the slightest doubt that had he been given adequate nursing care his condition would not have occurred, or would have been detected timely. The plaintiff has established that her husband’s death was caused by the acts of negligence set out in her statement of claims, para-

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graphs 14(c) (d) (e) (f) and (g). The defendant Jeffries adopts the plaintiff’s allegations of negligence and in addition I find he has established those pleaded in paragraph 9 of his statement of defence as (b) (c) (e) and (f).

Before expressing his conclusion in favour of the plaintiff in those words, Haines J. had dealt with the evidence adduced by the defence in attempting to show that aspiration had not been the cause of death and stated:

The defendants called a great many expert witnesses, many of whom had been retained for the trial. Doubtless their opinions were intended to be helpful, but in the light of the preponderance of evidence supporting the plaintiff’s theory, I find the theories propounded by the defence that death may have been caused by heart failure, or may have been caused by some liver condition, or may have been cause by something else, as being postulates unsupported by the weight of evidence.

On this basis, Haines J. gave judgment as follows: Firstly, as against the defendant Jeffries alone based upon the action for damages for injuries resulting from the accident for $11,679.09. This judgment was not appealed to the Court of Appeal for Ontario nor to this Court. Secondly, he dismissed the action against the defendant Dr. Bhalla and that judgment also was not interfered with in the Court of Appeal and not considered in this Court. Thirdly, he gave judgment against all the defendants except Dr. Bhalla but including Jeffries in the sum of $101,901.58, the quantum of that judgment having been agreed between the parties and no discussion as to such quantum took place in this Court. It was this judgment which was the subject of the appeal to the Court of Appeal for Ontario and to this Court. The judgment provided that the defendant Jeffries was entitled to be reimbursed by all other defendants and third parties except Dr. Bhalla to the extent of any portion of the $101,901.58 and costs that he should pay to the plaintiff.

Reasons for judgment for the Court of Appeal for Ontario were delivered by Jessup J.A. I summarize those reasons and shall deal with them in detail hereafter. Firstly, the appeals of Nurses Tilman, Stroop, Stannix and Bragger were allowed with costs and there has been no appeal from that

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disposition. Secondly, Jessup J.A. was of the opinion that he was unable to accept the learned trial judge’s conclusion that a preponderance of evidence supported a finding of death resulting from aspiration or that the balance of probabilities was that such was the cause of death. Concluding, on the other hand, that the cause of death was a mystery, Jessup J.A. then determined that the maxim res ipsa loquitur could not be applied because to do so required the establishment of the cause of death and that with reasonable care that cause of death would have been avoided, while in this case the cause of death had not been established.

Jessup J.A. then proceeded to apply the judgment of Rand J. in Cook v. Lewis[1], a decision of this Court. I am unable to find any assistance in the judgment of this Court upon that appeal. In the first place, the judgment of Rand J. was not the judgment of this Court as he spoke only for himself and the judgment for the majority composed of Cartwright J., as he then was, Estey and Fauteux JJ. was given by Cartwright J., and that judgment, I think, is summarized at p. 842 in these words:

1 do not think it necessary to decide whether all that was said in Summers v. Tice (1948), 5 A.L.R. (2nd) 91, should be accepted as stating the law of British Columbia, but I am of opinion, for the reasons given in that case, that if under the circumstances of the case at bar the jury, having decided that the plaintiff was shot by either Cook or Akenhead, found themselves unable to decide which of the two shot him because in their opinion both shot negligently in his direction, both defendants should have been found liable. I think that the learned trial judge should have sent the jury back to consider the matter further with a direction to the above effect, in view of their answer to question 3.

In that case, three men had gone on a bird hunting expedition in British Columbia and agreed that they were to share the bag. Two of the three men fired their shotguns simultaneously. Both alleged that they had fired in another direction but the plaintiff, not a member of their party and

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hidden by a bush, was struck by pellets and as a result lost an eye. Both of the two men who fired their shotguns were sued. The jury, in answer to questions, found that the plaintiff had been shot by one or other of the defendants but that the plaintiff’s injuries were not caused by the negligence of either defendant and expressed themselves as unable to decide which one of the two defendants had fired the pellets which struck the plaintiff. The jury’s answer denying negligence was found by the Court of Appeal for British Columbia to be perverse and that finding was accepted by this Court. The judgment of the Court of Appeal for British Columbia was that there should be a new trial and that judgment was confirmed in this Court.

Jessup J.A. quoted the headnote which purported to summarize the reasons given by Rand J. Even if that had been the judgment of the Court, it is surely inapplicable in the present circumstances on the basis of Jessup J.A.’s finding because by that finding guilt has not been “brought down” to one or the other of the two persons. Upon Jessup J.A.’s finding, the cause of death was a mystery and therefore it is impossible to say that there was guilt or negligence, that is, guilt or negligence which cause the death. There must be not only negligence but negligence causing the injury before there can be recovery. We are not here faced with two persons who were negligent and with an inability to find whether the negligence of one or the other caused the death. We are here faced with the simple question of whether there was negligence by Nurse Malette, for which negligence the hospital was responsible in law, and whether that negligence resulted in the late William Kolesar’s regurgitation. Nor is Mann v. Balaban[2], cited by the respondent, helpful. That was a case of assault while the present case is one based on an allegation of negligence by the omission to take care.

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Haines J., in the excerpt from his judgment which I have quoted above, accepted the theory advanced by the plaintiff and the defendant Jeffries that the cause of death was such regurgitation and that had the late William Kolesar been given adequate nursing care such a condition would not have occurred. That was a finding that the negligence of the defendants caused the death of Kolesar. It was this finding which Jessup J.A. for the Court of Appeal refused to accept.

Jessup J.A. was of the opinion that Haines J., in coming to his judgment after trial, had refused to put any dependance on the evidence given by Mayes, Nursing Assistant Stevens or Nurse Malette, and that, therefore, “Between 12 p.m. and 5 a.m. we know nothing of the deceased’s vital signs or sound or whether or not he was struggling for life”. With respect, I am of the opinion that this is not a correct view of the learned trial judge’s consideration of the evidence of the third person I have named, i.e., Nurse Malette. It is perfectly true that Haines J. refused to rely on the notes made by Nurse Malette which purported to show frequent attendances upon the late William Kolesar during the early hours of December 31st and even purported on occasion to give notations as to observation of his vital signs, but he did accept the record for one very important fact when he said that if any credence was to be attached to the hospital record made by Nurse Malette it was that at all times the patient was quiet, very pale and was allowed to sleep soundly all night. It is this very conduct, admitted by Nurse Malette in the record, which established her negligence and the hospital’s responsibility. It was that conduct which was absolutely contra the course of treatment advised by the medical witnesses and particularly by the two nursing experts Nurse Stewart and Nurse O’Connor. The learned trial judge heard those witnesses. It was for him to judge their credibility and the weight which should be given to their testimony. He did so and made a specific finding saying, “I accept their evidence which may be summarized in respect to this case as follows:” and then for the next three pages he set out the

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summary of the evidence as to proper treatment.

I am, therefore, of the opinion that Haines J. did have evidence before him which he could accept as to the conduct of Nurse Malette and therefore the responsibility of the hospital. Not only did the learned trial judge have this evidence but he had the evidence of the pathologist Dr. Fowler and of the expert pathological specialist Dr. Jaffe. In fact, Jessup J.A. even quotes Dr. Fowler’s evidence in the following question and answer:

Q. In any event, your opinion now is that he died of aspiration some one or two hours before his death?

A. No, my opinion is the patient died of aspiration of gastric juice and I don’t know exactly when the aspiration occurred and I cannot really give you an accurate time. I can say less than 2 hours. I would say less than 2 hours, but that I can’t.

Jessup J.A. stated later in his reasons “Drs. Fowler and Jaffe gave aspiration as the cause of death based solely on the pathology or some part of it”.

It would seem that Jessup J.A. started out with the premise that the learned trial judge had no clinical information as to the period between midnight and 5:00 a.m. then proceeded to examine the evidence of not only the two pathologists Drs. Fowler and Jaffe, to whom I have referred, but a host of other doctors to come to the conclusion that the plaintiff had not established, upon a balance of probabilities, that the cause of death was aspiration resulting from regurgitation. In doing so, Jessup J.A. referred to the evidence given by a total of fifteen doctors as well as other witnesses. All of those doctors and all of those witnesses gave evidence and were subject to a very careful cross-examination before Haines J. at trial. I agree with the statement made in the factum of the respondent Julie Kolesar that “it is a well‑known principle that appellate tribunals should not disturb findings of fact made by a trial judge if there were credible evidence before him upon which he could reason-

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ably base his conclusion”. Haines J. heard that evidence, judged it to be credible, and accepted it as a basis for his conclusion. I am strongly of the view that it is not the function of an appellate court to reconsider that evidence whether it be upon facts or a matter of professional opinion and come to a different conclusion, unless it could be shown that the evidence reasonably could not result in justifying the conclusion made by the trial judge. This is particularly true in the circumstances of the present case where, as Jessup J.A. pointed out, up to the end of the plaintiff’s evidence, the defence had no suggestion of any other cause of death other than the aspiration relied upon by the plaintiff.

Death had taken place more than five years prior to the trial. During that time, expert solicitors had been engaged on both sides and voluminous examinations for discovery had been proceeded with. Although it is true that the defence had not admitted that the cause of death was aspiration, it would seem that both the defence and the plaintiff were proceeding on the basis that aspiration was the cause of death and were solely concerned with whether that aspiration resulted from a failure to properly care for the patient. It seems then nothing less than startling that after all that time and after the counsel for the plaintiff had put in his evidence over many days the defence should turn up with a bevy of experts none of whom could have had any contact with even the records in the case until the very last minute and who could only suggest possible alternative causes of death as varied as cardiac arrest, stroke, or sudden and previously undetected fatal liver disease. It is, in my view, a rather natural conclusion for the trial judge to have rejected this kind of testimony which he rightly termed “postulates unsupported by the weight of the evidence”, and preferred to accept the evidence of the pathologist who performed the autopsy together with other witnesses who had seen the patient alive.

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For these reasons, I would dismiss the appeal by adopting the judgment of the learned trial judge with respect to the appellants’ liability. As to the other matters, such as the variation of costs, dealt with by the Court of Appeal for Ontario, I think such matters are properly within the jurisdiction of that Court and I would not interfere with them.

The respondents are entitled to their costs in this Court.

Appeal dismissed with costs.

Solicitors for the appellants: Fitzpatrick, O’Donnell & Poss, Toronto.

Solicitors for the respondents, Kolesar: Agro, Zaffiro, Parente, Orzel & Hubar, Hamilton.

Solicitors for the respondent, Jeffries: Hughes, Amys, Toronto.