Supreme Court of Canada
Wilcox v. Cavan, [1975] 2 S.C.R. 663
Date: 1974-10-01
Cheryl Wilcox (Defendant) Appellant;
and
Hugh Cavan (Plaintiff) Respondent.
1974: June 25; 1974: October 1.
Present: Ritchie, Pigeon, Dickson, Beetz and de Grandpré JJ.
ON APPEAL FROM THE SUPREME COURT OF NEW BRUNSWICK, APPEAL DIVISION
Negligence—Inference of negligence by nurse administering injection—Res ipsa loquitur—Rebuttal—Medical evidence—Construction of res ipsa loquitur rule.
Respondent had developed pneumonia and when, despite an injection of tetracyclin and other prescribed treatment, his condition worsened he was taken to hospital where an x-ray revealed upper lobar pneumonia. Appellant, a registered nurse of some ten years standing, was instructed by the doctor to give the patient an injection of two c.cs. of bicillin. Respondent would not cooperate with the proposal to administer the injection in his buttock and appellant then elected to give the injection in the deltoid muscle of the upper left arm, a generally accepted alternative site. On his return home respondent found the arm extremely painful, the fingers of the left hand clenched, blanching occurred and later discoloration proceeded from the site of the injection to the hand. The condition deteriorated rapidly and the doctor, who was only able to attend the patient on the evening of the day following the injection, was surprised both as to the general health of the patient and the serious symptoms indicated by the condition of the left hand and arm. Respondent was admitted to hospital the next day suffering from gangrene of his left fingers and thumb. On his admission two doctors examined the hand, arm and shoulder in detail and both noticed the site of the injection which was in the proper place over the left deltoid muscle. It was decided that some amputation would be necessary but because of his general health this was not done until twenty days later when part of the four fingers and most of the thumb were amputated. Respondent sued appellant claiming negligence in administering the injection below the deltoid muscle, the needle being inserted deeply thereby entering an artery.
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The trial judge dismissed the action against appellant, however the Appeal Division found that appellant had been negligent in having improperly injected the drug into the circumflex artery.
Held: The appeal should be allowed.
In medical cases where differences of expert opinion are not unusual—great caution should be used to ensure that the res ipsa loquitur rule is not construed so as to place too heavy a burden on the defendant. Each such case must be determined on its own facts and the rule should never be applied in such cases by treating the facts of one case as controlling the result in another, however similar these facts may be. In the present case the appellant nurse was clear as to the aspiration of the syringe and the absence of blood and there was ample medical evidence to support the finding that the injection was given without any fault on her part.
Martel v. Hôtel-Dieu St-Vallier, [1969] S.C.R. 745; Finlay v. Auld, [1975] 1 S.C.R. 338; United Motors Service, Inc. v. Hutson et al., [1937] S.C.R. 294; Cardin v. La Cité de Montréal, [1961] S.C.R. 655 referred to.
APPEAL from a judgment of the Supreme Court of New Brunswick, Appeal Division, setting aside the judgment of Barry J. at trial. Appeal allowed.
J. Turnbull, for the appellant.
D. Pappas, for the respondent.
The judgment of the Court was delivered by
RITCHIE J.—This is an appeal from a judgment of the Appeal Division of the Supreme Court of New Brunswick setting aside the judgment rendered at trial by Mr. Justice Barry whereby he had dismissed an action brought by Hugh Cavan against a registered nurse in respect of the amputation of a part of his left hand as a result of a gangrenous condition having developed after an injection of bicillin
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given by the nurse on the instructions of a doctor.
The circumstances giving rise to this litigation were that Cavan had developed pneumonia early in January 1971, which was treated by Dr. Pugh who gave him an injection of tetracyclin in the deltoid muscle of the upper left arm and prescribed medication. Cavan’s condition worsened and on January 7th the doctor ordered him to be taken to the outpatient department of the St. John General Hospital where an x-ray revealed that he had left upper lobar pneumonia. Cheryl Wilcox, a registered nurse of some ten years’ standing, was instructed by the doctor to give the patient an injection of two c.cs of bicillin.
Mrs. Wilcox had been giving injections at the rate of six to eight a day for many years and intended to inject the bicillin into the patient’s buttock, but it was because he would not cooperate in this regard that she elected to give the injection in the deltoid muscle of the upper left arm, which is generally accepted as an alternative site. Immediately after the injection had been given, Cavan and his wife returned to their home by taxi because there was no bed available in the hospital, and very soon the arm became extremely painful and the fingers of the left hand assumed a clenched position which was followed by blanching and later by discoloration proceeding from the site of the injection to the hand. This condition deteriorated rapidly but Dr. Pugh was unable to attend the patient until the evening of the 8th of January when he was surprised at the state in which he found Mr. Cavan both as to his general physical health and the serious symptoms indicated by the condition of his hand and arm.
After the respondent was admitted to hospital on January 9th, his condition having further deteriorated, it was immediately concluded that he was suffering from gangrene of all of the fingers and thumb on his left hand. On the afternoon of his admission, Dr. W.J. Stephen and Dr. W.D. Miller examined the hand, arm
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and shoulder in detail at which time both noticed the site of Mrs. Wilcox’ injection, which was in the proper position over the left deltoid muscle. At this time it was found that Mr. Cavan was in a very serious condition attributable to the pneumonia affecting his ability to properly aereate his blood supply resulting in a complete renal failure. Although it had been decided that it would be necessary to amputate at least some of the left hand, his general health was considered too precarious to permit such an operation until the 29th of January when part of the four fingers and most of the thumb were amputated.
The respondent brought the present action claiming against Mrs. Wilcox that she was negligent in “administering the injection of bicillin in the left arm below the deltoid muscle, the needle being inserted deeply thereby entering an artery” and against Dr. Pugh claiming that he was vicariously responsible for this negligence and was himself “negligent in failing to diagnose that the said injection had been improperly and negligently given”, and in failing to prescribe proper treatment therefor and also for his delay in responding to the call made for his help during the night after the injection had been given.
Mr. Justice Barry dismissed the respondent’s action against both the nurse and the doctor, but the Appeal Division, while affirming this dismissal in so far as the doctor was concerned, nevertheless found Mrs. Wilcox to have been negligent in having improperly injected the drug into the circumflex artery of the respondent’s left arm. No appeal has been asserted from the judgment dismissing the action against the doctor.
The respondent’s case rests in large measure upon the evidence of his wife who had gone with him to the hospital and had watched the nurse inserting the needle. In explaining where she thought the injection had been given she was asked:
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Q. Would you call that the inner side of the arm?
A. Well I mean this is where it went in, but see this is why I paid attention to it because you usually get it up here, you know. I never heard of one down here.
She marked the spot which she had indicated with a pencil and Dr. Scott, who was the Chief of the Division of Cardiovascular and Thoracic Surgery at the Montreal General Hospital, when called to give an explanation relating the mark to the muscles of the arm, said that it was between “the long head of the biceps and the deltoid muscle.”
If Mrs. Cavan had correctly identified the site of the injection it would mean that the bicillin was not injected into the muscle at all but quite possibly directly into a vein. She identified the spot where she alleged the injection to have been given by reference to what she said was a little tea stain which she first observed after the operation on the hand. Her evidence in this regard was as follows:
Q. You say you could see that tea stain.
A. Well I was looking for things like this because I mean I knew that this is what had caused the arm and I was looking for this.
Q. Okay, and you say you saw it and you say that it was at the spot where you have marked the ‘x’.
A. Yes.
Q. And you say that you could see that—when did you first see it?
A. Well after his hand was amputated the skin started to clear up—you know—the hand and arm started to have a bit of colour in it—you know—nothing to talk about, but it wasn’t as marbly like as it was before.
The operation took place on the 29th of January and this evidence can only mean that Mrs. Cavan is saying that she was able to observe the injection mark three weeks after Mrs. Wilcox had inserted the needle. This story has to be
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viewed in light of the evidence of Dr. Miller who examined the patient shortly after his admission, finding the needle mark in the proper position over the deltoid muscle, who stated that such a mark would normally disappear within three days and that it was no longer observed by him on his subsequent visits on the 11th and 12th of January. He said, in the course of cross-examination:
Q. Well when one gives drugs of this nature and as you described it—the deltoid area—is it normal that the site of the injection—there is a bruise after the injection which stays for some time?
A. There is usually a flare and a slight thickness of the tissue in that site, yes.
Q. A bruise though.
A. Not necessarily a bruise.
Q. Is that what you meant by discoloration?
A. I think I meant a reddish erythema, not a bruise. A reddish erythema would be the discoloration I refer to.
Q. Which would be caused by the injection?
A. It would be caused by the substance injected. The cause, sir, is exceedingly more complex. It has to do with the mode of absorption and breakdown of the material in the area. So, we can’t really just—that’s a paraphrasing of the cause.
Q. How long would this discoloration last?
A. It usually lasts about 72 hours.
Q. 72 hours. That is—my mathematics isn’t very good, but how many days is that?
A. Three days.
Q. In this case did it go away after three days?
A. I was unaware of it in my subsequent visits on the 11th and 12th.
Q. There is some indication from the nurses notes that it was still there on the 13th of January, which would be six days later. Is that unusual assuming that to be the case?
A. The date again.
Q. The 13th.
A. The 13th, which is four days.
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Q. No. The injection was given on the 7th.
A. Oh yes, the 7th. Not unheard of.
Although Mrs. Cavan purports to have noticed the point at which the appellant injected the needle, she was later asked:
Q. Now, do you say that Mrs. Wilcox, when she gave this injection, held the plunger in her right hand, the needle, and her thumb on the plunger.
A. Yes.
Q. And in one motion put it in.
A. Well again I am surmising that’s what she did. I don’t know the procedure to put a needle in. I never look personally. I never look when I’m getting it.
Q. Did you look at this time?
A. Well I was just watching like. I wasn’t curious or anything.
One further phase of Mrs. Cavan’s evidence which is worthy of note is contained in the following questions and answers:
Q. Mrs. Cavan, there was no blood when the needle was withdrawn, was there?
A. No.
Q. No blood came out of the puncture site.
A. No. She put a bandaid over it.
Q. How long did the bandaid last?
A. Well she told me to take it off when I got home.
Q. And was there any blood on the bandaid?
A. Oh, you know, just a small part—a tiny, tiny spot.
On the other hand, Mrs. Wilcox testified that she gave the injection in the proper site over the deltoid muscle where she had always given such injections in the course of her ten years’ experience. Her evidence was criticized on the ground that she was unable to recall the details of the Cavan case and relied in great degree upon the fact that she had never given such an injection in any other manner, but her evidence was confirmed by that of the doctor who examined the patient on his return to hospital on the 9th of January and then found the only injection
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mark to be in the correct position over the deltoid muscle just as the appellant had described it.
The appellant recalled Mr. Cavan’s visit on the 7th of January with particular reference to his reluctance to having the injection in the buttock and she stated that she had never in her life put a bandaid on an injection site. Considerable importance attaches to the fact that the proper practice in giving such an injection, and the one which Mrs. Wilcox said she followed, is that described by Dr. Scott where he said:
…you put the needle in and then when you feel that you’re in the muscle you withdraw on the plunger and the syringe to make sure that you’re not in a blood vessel and when no blood comes back then you have—really you have done all you can do. There is nothing more that you can do really.
Mrs. Wilcox stated categorically that she had aspirated the syringe and that there was no blood. She then said:
It is very seldom that you get blood, and I don’t think I would have forgotten it in a couple of weeks. I have gotten blood.
Q. Approximately how many times have you got blood?
A. Maybe 2 or 3. Not very many times.
The significance of this evidence is that if there had been evidence of blood after aspiration it should have alerted Mrs. Wilcox to the probability that the needle had entered a blood vessel and that it would be dangerous to give the injection in that spot but, as I have indicated, Mrs. Cavan’s evidence that there was a small spot of blood at the puncture site was denied by the nurse, and doctors who were very highly qualified specialists testified that the needle could have reached the artery without any blood being released.
In weighing the evidence of Mrs. Cavan and Mrs. Wilcox, Mr. Justice Barry, who had the advantage of seeing and hearing these witnesses as they gave their evidence, clearly preferred the version of the appellant and based his judg-
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ment on the finding that “Mrs. Wilcox injected the medication into the deltoid muscle” and that her actions and technique were faultless. In finding that the gangrenous condition of the respondent’s arm was due to the bicillin injection having entered the circumflex artery, Mr. Justice Barry stated:
I must also state how the antibiotic got into the artery if the injection was given in the deltoid muscle as it probably was, in view of the evidence of the men who saw the injection mark at the hospital. The second necessity is answered by stating that there is a circumflex artery connected to the brachial artery and the circumflex runs around the outer aspect of the humerus under the deltoid and its presence is not mentioned in nursing text books at all, according to the best evidence… That circumflex artery, in my opinion, was the point of entry. It will be asked why, then, did Mrs. Wilcox not get blood on aspiration of the syringe if the needle was in it, to which the answer is given by Doctors MacLean and Scott, that it is possible for the point of the needle to be so positioned that it would not get blood on aspiration but could inject the medication nevertheless. In other words, aspiration as a technique to determine if the needle is in a large blood vessel is not perfect but it is the best method available. After all, as one witness said, the needle is under the skin and one cannot see its point unless all injections are made in the presence of an x-ray machine and a properly medicated subject. The slightest motion of the needle or the patient could vary the position of the needle.
As to the suggestion that the injection should have been given in the buttock, the evidence indicates that site as the usual place, but it is perfectly proper to use the deltoid muscle in certain cases, for example, when the patient is in a body cast or has an infection in the buttock area, or usually, in the case of some females, the lady is unwilling to expose that part of the body. I cannot find it to have been negligent to use the deltoid area in this situation. A shorter needle might have been used but the medical evidence indicates that a 1½ inch needle is perfectly proper.
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It is significant also in my view that the evidence of the Director of Nursing Services at the St. John General Hospital and the Assistant Director of Nursing at St. Joseph’s Hospital, which was confirmed by Professor Irene Leckie, a member of the teaching staff in nursing at the University of New Brunswick, is all to the effect that nurses in training were not instructed with respect to the existence of the circumflex artery’s proximity to the deltoid muscle. Professor Leckie gave the following evidence:
Q. Now from your own knowledge, and also from what you teach the students today, is there anything about—in giving an injection—an intermuscular injection in the deltoid, is anything taught about the circumflex humeral arteries?
A. No. The textbooks in nursing refer to the fact there is a possibility or the danger that is involved in giving of an intermuscular injection in the deltoid: is hitting the radial nerve.
And later:
Q. Had you yourself ever known about this until yesterday afternoon?
A. This was the first time I had heard this in relation to the giving of intermuscular injections in the deltoid.
Finally the same witness was asked:
Q. Professor, how many student nursing textbooks are you familiar with?
A. I think I can say quite honestly I am familiar with all of them that are published at the present time.
Q. Have you ever seen in any of those nursing textbooks any reference to this business of the circumflex artery?
A. No.
Q. And you yourself didn’t know of it?
A. No.
It appears to me to follow that Mrs. Wilcox was in no way blameworthy by reason of the fact that she was unaware of the existence of any potential danger due to the position of the circumflex artery.
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The Appeal Division affirmed the finding that the bicillin had “somehow gotten into an artery and caused the damage suffered”, and in agreeing with the trial judge concluded that the evidence called on behalf of the respondent constituted a prima facie case giving rise to a presumption of negligence and thus shifting the burden of proof to the appellant.
I have recited excerpts from the evidence at some length because the difference between the trial judge and the Appeal Division was that the former was satisfied that Mrs. Wilcox had discharged the burden resting upon her by showing that the misfortune suffered by Mr. Cavan could have occurred without any negligence on her part. The difference of opinion between the two courts clearly arises as a result of their evaluation of the evidence adduced by Mrs. Wilcox and of the inferences to be drawn therefrom. The Appeal Division appears to have felt itself bound by the similarity between the facts of this case and those disclosed in Martel v. Hôtel-Dieu St-Vallier, where Mr. Justice Pigeon, speaking for the Court, had found that the explanation advanced by the doctor who had injected an anaesthetic in that case was not sufficiently convincing to discharge the burden of proof imposed by the rule of evidence which is often referred to as res ipsa loquitur.
The case of Martel came to this Court after the Court of Queen’s Bench (Appeal Side) and the learned trial judge had both found that the doctor had failed to discharge the burden imposed upon him by the circumstances and in this regard differs sharply from the present case where the finding of the trial judge in Mrs. Wilcox’ favour was reversed on appeal.
One of the main factors which affected the conclusion in the Martel case was that the anaesthetist appeared to have no recollection of giving the injection and even when it was pointed out to him that the nurse in charge of the recovery room had made a note of his having
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visited the patient in that room, he did not remember such a visit and in fact denied that he had been there. This becomes all the more significant in light of the fact that only three or four days had elapsed between the administration of the anaesthetic and the time when the anaesthetist was first alerted to the difficulties of which it was the cause.
On the other hand, Mrs. Wilcox’ account of the injection given to Cavan was based on her practice over the years and she was clear in her recollection as to the aspiration of the syringe and the lack of blood and the fact that she had not used a bandaid. Her inability to remember the details of this particular injection is, in my opinion, understandable on the basis that, in the course of her duties over many years, she had given a number of injections daily and that two weeks had elapsed after Cavan’s injection before she was reminded of the incident by being told of the gangrenous condition of his hand.
Perhaps the most marked difference between the Martel case and the present one is that in the former case the explanation advanced by the anaesthetist was a pure hypothesis which was totally unsupported by the evidence of the other doctors, whereas in the present case there was ample medical evidence to support the finding that the injection was given without any fault on the part of Mrs. Wilcox.
It appears to me that in medical cases where differences of expert opinion are not unusual and the sequence of events often appears to have brought about a result which has never occurred in exactly the same way before to the knowledge of the most experienced doctors, great caution should be exercised to ensure that the rule embodied in the maxim res ipsa loquitur is not construed so as to place too heavy a burden on the defendant. Each such case must of necessity be determined according to its own particular facts and it seems to me that the rule should never be applied in such cases by treating the facts of one case as controlling the result in another, however similar those facts may be.
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In the recent case of Finlay v. Auld, this Court considered the application of the rule of res ipsa loquitur to medical malpractice cases and readopted the language in which it was stated by Sir Lyman Duff in United Motors Service, Inc., v. Hutson et al. at p. 297:
There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care.
Sir Lyman, however, added the following qualification:
Broadly speaking in such cases, where the defendant produces an explanation equally consistent with negligence and with no negligence, the burden of establishing negligence still remains with the plaintiff.
In the Auld case the Court went on to say:
This interpretation of the rule is consistent with the judgment of the House of Lords in Woods v. Duncan [1946] A.C. 401 at p. 419 which is referred to in the judgment of the Appellate Division, where Viscount Simon pointed out that even where the rule applies the defendant is not to be held liable because he cannot prove exactly how the accident happened.
In the present case neither the appellant nor any of the distinguished doctors called at the trial were able to explain exactly how the bicillin found its way into the circumflex artery. One of the doctors described the event as a misadventure and Dr. Scott stated that if Mrs. Wilcox had given the injection as she stated she did and in the place where Dr. Miller found the mark, “what happened after that was tragic as it was
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Mr. Cavan’s misfortune. I don’t see that she had done anything wrong, anything for which she could be blamed.”
These medical opinions bring to mind what was said by Taschereau J. in Cardin v. La Cité de Montréal, at p. 658, although the passage to be quoted was not strictly necessary to the determination of the issue in that case:
[TRANSLATION] Certainly, doctors should not be held responsible for unforeseeable accidents which may occur in the normal course of the exercise of their profession. Cases necessarily occur in which, in spite of exercising the greatest caution, accidents supervene and for which nobody can be held responsible. The doctor is not a guarantor of the operation which he performs or the attention he gives. If he displays normal knowledge, if he gives the medical care which a competent doctor would give under identical conditions, if he prepares his patient before operation according to the rules of the art, it is difficult to sue him in damages, if by chance an accident occurs. Perfection is a standard required by law no more for a doctor than for other professional men, lawyers, engineers, architects, etc. Accidents, imponderables, what is foreseeable and what is not, must necessarily be taken into account.
In my view the evidence of the appellant, supported by that of the doctors who examined the patient on the 9th of January and explained by the Chief of the Division of Cardiovascular Surgery at the Montreal General Hospital, afforded an explanation consistent with no negligence on the part of the appellant.
For all these reasons, I would allow this appeal, set aside the order of the Appeal Division and restore the judgment of the learned trial judge dismissing the respondent’s action against Cheryl Wilcox.
The appellant is entitled to her costs throughout.
Appeal allowed with costs.
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Solicitors for the appellant: Palmer, O’Connell, Leger, Turnbull & Turnbull, Saint John.
Solicitors for the respondent: Clark, Drummie & Company, Saint John.
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