Supreme Court of Canada
Eady v. Tenderenda, [1975] 2 S.C.R. 599
Date: 1974-10-01
Sylvia Eady Appellant;
and
Dr. T. Tenderenda Respondent.
1974: March 12, 13; 1974: October 1.
Present: Ritchie, Spence, Dickson, Beetz and de Grandpré JJ.
ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA, APPEAL DIVISION
Physicians and surgeons—Negligence—Standard of care—Res ipsa loquitur—Facial paralysis after mastoid operation—Bone chips in nerve canal—Responsibility of surgeon.
Respondent, a specialist in ear, nose and throat surgery, performed a mastoidectomy on appellant using the hammer and chisel method of performing the operation with the aid of a surgical loupe having a two and a half times modification (magnification) rather than the newer technique of microscopic surgery using a dental drill. Appellant suffered a facial paralysis as a result of the operation. Microscopic surgery performed to determine the precise cause of the paralysis revealed two small white bone chips which had been pressing against the facial nerve. At trial the jury found first that there was negligence on the part of the defendant, respondent to the plaintiff, appellant and second that this negligence was that respondent did not take due care in ensuring that all bone chips were removed from the operative area. On appeal this verdict was set aside because, in the view of the Appeal Division, there was no evidence upon which to make a finding of negligence against respondent.
Held (Ritchie and de Grandpré JJ. dissenting): The appeal should be allowed.
Per Spence and Dickson JJ.: The jury’s finding of negligence on the part of the respondent was an answer by a jury on a question of fact and that answer cannot be interfered with unless it is so plainly unreasonable and unjust that no jury reviewing the evidence as a whole and acting judicially could have reached it. The Respondent, in using the surgical loupe and hammer and chisel method, realised that vision using microscopic surgery was much better than the loupe which he would have to use and. should therefore have exercised a greater degree of care in making certain that the bone chips found in the wound had been removed. In failing in his search of the operative site to see such harmful chips in the
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area of the facial nerve the respondent did not accord to his patient the reasonable degree of care required.
Per Beetz J.: Once it is conceded that the jury was adequately instructed and that the rule res ipsa loquitur applied one cannot but conclude that there was some evidence upon which a finding of negligence could properly be made by the jury.
Per Ritchie and de Grandpré JJ., dissenting: There was no direct evidence that the respondent did not in the conduct of the mastoid operation act as a reasonable doctor would have acted in similar circumstances. Appellants are therefore obliged to invoke the res ipsa loquitur rule. The two tiny bone chips resulting from the operation were approximately the same colour as the surrounding area and were only found during a second operation which lasted three hours and which had been undertaken precisely to find the cause of the problem. The evidence taken together did not justify a conclusion of negligence.
[McCannell v. McLean, [1937] S.C.R. 341; Feener v. McKenzie, [1972] S.C.R. 525; Gent v. Wilson, [1956] O.R. 257; Crits and Crits v. Sylvester, [1956] O.R. 132 affd. [1956] S.C.R. 991 referred to]
APPEAL from a judgment of the Supreme Court of Nova Scotia, Appeal Division, allowing an appeal from a judgment of Dubinsky J. after trial upon the jury’s answer to questions. Appeal allowed, Ritchie and de Grandpré JJ. dissenting.
Harold F. Jackson, Q.C., and George W. MacDonald, for the appellant.
John M. Barker, for the respondent.
The judgment of Ritchie and de Grandpré JJ. was delivered by
DE GRANDPRE J. (dissenting)—By their action plaintiffs-appellants claim damages from respondent, a medical doctor, who performed a mastoidectomy on female plaintiff. The statement of claim alleges many grounds of negligence but the issue has been narrowed down to
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one as will immediately appear from the relevant questions and answers in the verdict of the jury:
Q. 1. Was there any negligence on the part of the Defendant to the Female Plaintiff? Answer Yes or No.
Answer: Yes.
2. Question: If your answer to Question 1 is yes, in what did such negligence consist?
Answer: Knowing the Probability that a Radical Mastoidectomy was necessary after examination of the patient & X-Rays & knowing the possibility of complications following this Type of surgery by performing this surgery using the chisel & Hammer, he did not take Due care in ensuring that all bone chips were Removed from the operative area.
The damages are not in issue here.
The verdict was confirmed by the trial judge who gave a judgment in favour of plaintiff. The Court of Appeal of Nova Scotia came to a different conclusion and set aside the verdict because, in the view of the Court, there was no evidence upon which a finding of negligence could be made against respondent. This Court is now asked to restore the verdict of the jury or alternatively to order a new trial.
In considering the verdict of the jury, we must keep before us the principles stated in many cases decided in this Court. The leading ones are mentioned in the reasons for judgment prepared by my brother Spence and I will not repeat them here.
What is negligence? The answer to that question is well known but it is worth a restatement. It is the failure to exercise “the ordinary skills of an ordinary competent man exercising that particular art”—Bolam v. Friern Hospital at p. 121. The same thought was expressed by
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Abbott J. in Donald McCormick v. Gaston Marcotte at p. 21:
The test of reasonable care applies in medical malpractice cases as in other cases where fault is alleged. The medical man must possess and use, that reasonable degree of learning and skill ordinarily possessed by practitioners in similar communities in similar cases. Whether or not such test has been met depends, of course, upon the particular circumstances of each case.
Taschereau J., as he then was, in Cardin v. La Cité de Montréal et al at p. 658, stated:
[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.
It is obvious that in most cases of negligence alleged against a medical doctor, direct evidence of fault is not possible. This suit is no exception. Only two witnesses were heard on the medical aspect of the case, respondent himself and a doctor Shane who had seen the female plaintiff a few days after the operation in circumstances that will be discussed later. It is not possible to find in their testimonies direct proof that respondent did not conduct himself as a reasonable doctor would have acted in similar circumstances.
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Appellants are therefore obliged to invoke in their favour the rule of evidence known as res ipsa loquitur. Its nature in a non medical case was examined by Ritchie J., speaking for the Court, in Frank Hellenius and Rock Leclerc v. Thomas Lees at p. 171:
It was contended on behalf of the appellants that this was a case of res ipsa loquitur and that on this ground there was an initial burden upon the respondent to disprove negligence. I should say at the outset that in my opinion this submission cannot be sustained on the facts of the present case. The so-called rule embodied in the Latin phrase res ipsa loquitur is nothing more than a rule of evidence and states no principle of law. The rule is conveniently and authoritatively stated in the judgment of Erle C.J., in Scott v. London & St. Katherine Docks Co. (1865) 3 H. & C. 596 at 601, 159 E.R. 665, where it is said:
There must be reasonable evidence of negligence.
But where the thing is shewn 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 defendants, that the accident arose from want of care.
I find that the limitations of the doctrine so stated are accurately described in Clerk & Lindsell on Torts, 13th ed., para. 967, at p. 968, where it is said:
The doctrine applies (1) when the thing that inflicted the damage was under the sole management and control of the defendant, or of someone for whom he is responsible or whom he has a right to control; (2) the occurrence is such that it would not have happened without negligence. If these two conditions are satisfied it follows, on a balance of probability, that the defendant, or the person for whom he is responsible, must have been negligent. There is, however, a further negative condition: (3) there must be no evidence as to why or how the occurence took place. If there is, then appeal to res ipsa loquitur is inappropriate, for the question of the defendant’s negligence must be determined on that evidence.
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In a medical case, namely Martel v. Hôtel-Dieu St-Vallier, Pigeon J., speaking for the Court, had this to say about the rule: (at p. 749)
[TRANSLATION] The only point to be considered, therefore, is whether the evidence was sufficient to support the conclusion that, in all probability, what happened would not have occurred, in the absence of fault. I use the words “in all probability”, because it is clear that when Taschereau J., in the above quoted passage, said “it is evident”, he was not intending to require a degree of certainty beyond the standard used in civil cases, i.e., reasonable probability. We are not dealing here with the certainty beyond reasonable doubt which is required only in criminal matters. Much less, may we require mathematical certainty, a demonstration excluding all other probabilities.
Res ipsa loquitur was applied recently in a medical case, namely in William Gordon Finlay and Nancy Jean Finlay v. Benson Auld. Having weighed all of the evidence, this Court came to the conclusion, confirming the courts below, that the doctor had rebutted any inference of negligence created by the application of the rule.
To be complete, I wish to refer to Hôtel-Dieu de Montréal v. Couloume, where the rule was again examined but in a different context.
In my view, the rule applies in the present case and the jury was entitled to take it into consideration. Still the entire evidence must be examined to determine whether or not the jury acting judicially could reach a verdict of negligence.
The evidence has been painstakingly reviewed by Cooper J. and I wish to quote the following extract from his notes:
The appellant used in the first operation the hammer and chisel method of performing a mastoidectomy, with an operating loupe described as magnifying
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glasses mounted on glasses frames. The glasses give two and one-half times magnification at a distance of eight or nine inches from the eye. The operation was done under general anaesthetic.
Facial paralysis having developed, Dr. Shane was called in by respondent to correct the situation if possible. He described as follows his intervention:
Q. And you examined the nerve in the area of the bridge?
A. Yes, and I then proceeded to dissect the bone away from the nerve following up what we called the oval window—over what we call the oval window and the labyrinth and I couldn’t see any reason for the nerve to be injured there and I also proceeded downward around the sternomastoid formanen canal—that canal and formanen because I was at a loss to find out just what had happened and I spent pretty near three hours before I could find out that there were two small bone chips in the nerve, but I lifted the nerve up out of this canal to see and that was the time that I saw these two small bone chips there and they are very difficult to see when you are dealing with a white bone and with a white nerve and with a white bone chip.
In cross-examination, he again explained what he did:
Q. Can you just tell me again what occurred, then?
A. Well, we opened the mastoid from the back this time because it had already been done from the front; we cut through the various muscles to get down to the area concerned; I removed what was left of Doctor Tenderenda’s packing; and, I must say that my notes on that operation are brief. First of all, the nerve where one would expect it to be cut or injured was frayed and I couln’t be sure just what had happened there and so we went further up into the middle ear and then uncapped the nerve over the stapes and I didn’t see anything wrong with that part of it either and so I decided to go further down. I went down the stylo-mastoid canal and I could see nothing there and so I went back to where I would have thought trouble would be in the area of the bridge or attic area around the semi-circular canal and lifting around and looking at
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that I finally found two bone chips, which we sent to the lab.
He had previously underlined “how close you are to the various structures when you are working in this small area of one to two to three millimetres and where the nerve is the size of a piece of twine, we’ll say, and where you have a diseased bone to start with.”
When asked to comment on the methods followed by Dr. Tenderenda in the first stages of the operation, Dr. Shane stated that he approved of those methods. Later on, in his testimony in cross-examination, we find the following question: “In your opinion, Doctor, was this operation which was performed by Doctor Tenderenda a competent operation?” Answer: “I would say so, yes.”
These answers by Dr. Shane put to rest the suggestion by appellants that the hammer and chisel method should not have been used. To be fair, I must add that this submission was not really pressed before this Court.
However, it was repeatedly suggested that having used that method, respondent was in a more difficult position and knew or should have known that chips on the nerve were to be expected and that this expectation would not have been in existence if another method had been used, namely the drill and microscope one. Here again, Dr. Shane had something to say this time in answer to a question put by the Court:
Q. Could chips be brought about if the work is done in the other manner?
A. What, with the drill? No.
Q. Yes, yes, with the drill?
A. Well, no, there you don’t get bone chips but you get bone dust which in itself is just as bad as bone chips there, if you want to look at it that way, although today one colleague is collecting bone dust to build a new meatal wall. They do
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all sorts of things different today than they ever done two years ago, you know.
When dealing with the source of the bone chips, respondent and Dr. Shane were unable to do more than to offer a list of possibilities. One thing is certain, however, namely that the chips were the result of the operation. Again, reference must be made here to the evidence of Dr. Shane:
Q. All right. Now, please go back to my question: chips can be brought about by what? By the gouging of—
A. By the chiselling of that area or by a gouge or chisel and you usually use a chisel.
Q. And how else?
A. And also with a fracture in that area you could disrupt the facial nerve and when you chisel it you can also fracture it.
Q. You can fracture it?
A. Yes, and you must take that area down in order to do the radical mastoid and exteriorize the whole cavity.
Q. Now, are there any other causes for chips?
A. Yes. We have air cells and this mastoid happens to be very, very sclerotic; I have knowledge of that. You might knock off another piece and it falls down out of your view.
Q. Out of your what?
A. Out of your view. You are dealing with a kidney-shaped cavity here, it’s just like a kidney bean in shape, and the bridge is the middle of that kidney bean and, in order to join those two together, the kidney bean of which the middle ear, or the tympanum as he called it, and the mastoid antrum area, you must remove the bridge between the two.
Q. Then are these the only ways these chips can come about?
A. Or when you are curetting the air cells that are there or hitting them with a hammer and gouge you might fracture off little pieces of dense, hard bone. I don’t know of any other way that you could get bone chips and I think perhaps that would be the only way.
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Whatever the exact source of the chips, the evidence, in my view, does not justify a conclusion of negligence. The two tiny bone chips were approximately of the same colour as the surrounding area and could only be found during the second operation which lasted three hours and which had been undertaken precisely to find the cause of the problem. To reach these tiny bone chips, Dr. Shane had to lift the nerve.
The evidence through Dr. Shane again also discloses that facial nerve paralysis is not unfortunately an uncommon thing in an operation of this type and Dr. Shane states that “one in every hundred such operations” gives rise to complications of one type or another.
Taking all of the evidence together and not only those parts mentioned in these notes, I cannot but come to the conclusion expressed as follows by Cooper J. in the Court of Appeal:
I reiterate that the jury did not find that Dr. Tenderenda was negligent in using the hammer and chisel method of performing the operation but rather that he failed in the standard of care required of him in the use of that method. I cannot find any evidence of such a failure. His procedure was approved of by Dr. Shane, the only medical witness apart from Dr. Tenderenda himself. That procedure did not involve the use of a microscope at any stage but rather the use of the operating loupe throughout. In my opinion, therefore, the jury’s answer to the first question must be rejected as one which the jury, reviewing the evidence as a whole and acting judicially, could not have reached.
A last word. Plaintiffs-appellants have invoked with vigour the case of Crits v. Sylvester. I simply wish to underline that this
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Court on that occasion limited itself to determine liability on the facts disclosed by the evidence which were an explosion, in an operating room, of gas used as an anaesthetic. This Court did not go any further nor did it adopt all of the reasons of the court below.
For the foregoing reasons, I would dismiss the appeal with costs.
The judgment of Spence and Dickson JJ. was delivered by
SPENCE J.—This is an appeal from the judgment of the Appeal Division of the Supreme Court of Nova Scotia pronounced on June 15, 1973. By that judgment, the said Appeal Division allowed an appeal from the judgment given by Dubinsky J. after the trial of the action upon the jury’s answers to questions. Dubinsky J. granted judgment for the male plaintiff for $104.35 and for the female plaintiff, the appellant in this Court, for $20,000 for general damages. The judgment of the Appeal Division dismissed the action.
Notice of appeal to this Court was filed only on behalf of the appellant Sylvia Eady and no application for leave to appeal was made on behalf of Delbert Eady, her husband, whose judgment for $104.35 for special damages obtained at trial had, of course, been reversed by the Appeal Division.
The plaintiff, a young married woman, suffered from repeated and severe earaches. She consulted her family physician, Dr. Weir, who, after some treatment, referred her to the respondent, Dr. T. Tenderenda, who was a specialist in ear, nose and throat surgery. I shall outline the latter’s qualifications later. The respondent carried on clinical tests which convinced him that the appellant suffered from exacerbation of the left ear amounting to infection and extending into the mastoid. He caused the appellant to be x-rayed at the Dartmouth Medical Centre on August 21, 1969. The x-ray showed that the bone was mostly sclerotic; that means there were no cells or very few cells
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which, if present, were abnormally small, so that they could not be detected from the x-ray. Dr. Tenderenda testified that this condition is accompanied by a long-duration infection and that one area which he called the “attic” which is just above the drum of the ear was translucent in appearance. He testified that this normally suggests that there is a destructive process going on in that area and since that area is next to the envelope of the brain and very close to a semi-circle of facial canals, it is a dangerous area. Dr. Tenderenda advised the appellant that she should have an operation for this mastoid condition and warned her of the dangers such as meningitis, encephalitis, etc., which could be brought on by a failure to treat the condition surgically. Dr. Tenderenda did not advise the appellant of any dangers attendant upon the operation and the appellant has testified that she did not put any such questions to him.
The respondent carried out the operation on the appellant on October 8, 1969. It appeared quite obvious to the respondent that the appellant had suffered a facial paralysis as a result of the operation and within a very short time he called in a Dr. Arthur G. Shane, a well-known otological surgeon in Halifax, who examined the appellant and determined that the ear would have to be reopened in order to determine the cause of the facial paralysis. This operation, carried out by Dr. Shane himself, with the respondent present, took place six days later. At that operation, Dr. Shane discovered the presence of two small white bone chips which had been pressing against the facial nerve. Dr. Shane removed those bone chips. The plaintiff has since that time only partially recovered from the facial paralysis and still suffers very grave defects.
The jury allowed the appellant $20,000 general damages and although that amount was made the subject of the appeal to the Appeal Division, the issue of damages was not argued in this Court.
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The respondent was born in Poland and obtained his medical diploma in 1934 from the Medical University of Warsaw. After service as a regular Army Medical officer, he arrived in England in May 1947. After a certain length of time in training and internship in various hospitals and clinics, he wrote his examination for a diploma in Laryngology and Otology.
Holding the Diploma in Laryngology and Otology, the respondent came to Dartmouth, Nova Scotia, in August 1954. He is certified as an ear, nose, eye and throat specialist in the Province of Nova Scotia, having obtained his certificate in the year 1965. He had practised in various medical institutions in and around Halifax up to the time of this operation in October 1969.
A great deal of time was spent in all the courts, including this Court, in debating the methods used by the respondent in his operation on the appellant on October 9, 1969. The respondent had carried out about fifty-five mastoid operations of which twenty-five had been carried out in the Province of Nova Scotia between 1954 and 1969. The respondent had been trained to operate in the very narrowly confined area of the ear, and particularly the inner ear, by use of a procedure known as a surgical loupe. This consisted of spectacle frames in which was inserted a magnifying lens which when held about eight or nine inches from the surgeon’s eyes would give what was described as “modification”, the word would seem to mean “magnification”, of two and a half times. That procedure was used by all ear surgeons up to recent date and would appear to be still used by many of them. The respondent knew of a further development which is described as microscopic surgery but professed to not having enough training in it to avail himself of that newer technique. The technique was described by Dr. Shane, the experienced otologist who carried out the second operation upon the appellant and who gave evidence on behalf of the respondent.
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Of late years, Dr. Shane has carried out far more operations in attempting to improve hearing rather than operations to relieve a chronic condition of mastoiditis. In the operations to which Dr. Shane devotes most of his time, it is necessary to use microscopic surgery. He testified that practically all doctors now use that form of surgery and that it is the only thing taught in medical schools today. Dr. Shane, however, would not agree that the surgical loupe type of surgery was not a perfectly proper method and, in fact, he himself used it in the first steps of his operation because he found that that type of surgery, which entailed the use of hammer and chisel, resulted in a much more rapid elimination of the bony cover before the actual operative site was reached. In the microscopic type of surgery on the ear, the dental drill or burr is used and Dr. Shane pointed out that there may be some difficulty in the use of that instrument as a doctor may encounter a dull drill or the drill, if not carefully handled, may cause the bone upon which the doctor is operating to become too heated. He did, however, agree that it is the duty of the surgeon to see that the drill is not dull and to exercise care to avoid overheating.
There may be some significance in the fact that Dr. Shane, in the second operation, where he entered the ear through a different opening rather than merely opening up the stitches in the previous wound, did not use a loupe to go through the bone but used microscopic surgery and a dental drill.
Of course, the great advantage of microscopic surgery is, as the name implies, you are looking at a very small area with the aid of a microscope which gives many times over the two and a half degrees of magnification which is provided by the surgical loupe. Therefore, as both Dr. Shane
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and the respondent agreed, you could see the area very much clearer.
After this very short reference to a mass of evidence with reference to the two surgical procedures, I return to the appellant’s first operation. The respondent testified that after having cut through the soft tissues, he exposed the bone right behind the ear canal, which is the normal way of gaining access to the mastoid bone. He chiselled out the bone until he came to the somewhat larger cells which normally represent the antrum and went along this antrum superiorally and anterioraly until the tympanum was found and the bone along this part removed. The respondent emphasized that at this particular point, the facial nerves are very close, only one twenty-fifth of a millimetre away from the area in which he was working. The respondent testified that the facial nerves are usually within a bony tube-like structure and that he never saw the facial nerve at any time during the operation and that he certainly did not sever the nerve. He was sure that he had not exposed the facial nerve but he could not state that the nerve was not exposed as it would most likely have been by the process of the disease. In the course of his surgery, the respondent located and removed much bone which he described as brittle so that, when he applied the chisel to it, it did not break in the direction he tried to chisel off but rather went in a different direction. The bone condition which he described as “sclerotic” was caused by the processes of the disease. The respondent removed all of the diseased bone which he could find until he got down to the solid bone and in the attic of the middle ear he found the condition which had previously been reported by the x-ray and he removed tissue there. The ear drum itself was practically gone but the remnants of the ear drum were there so that he removed them and then carried out an inspection. The respondent completed the operation by using hydrogen peroxide in order to control the bleeding and clean the area, particularly the attic where there was too much bleeding to control otherwise and then he testified: “…
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and I couldn’t find anything after this inspection and so I put the dressing into the ear and …”. The respondent testified that during the course of this inspection he did not see the facial nerve.
As I shall describe hereafter, in the second operation, Dr. Shane discovered the two small white bone chips, and the respondent, in his testimony, gave as his opinion that these bone chips had come from the area surrounding the mastoid bone. They may have been small particles eaten by the process of the disease and pointing out, I presume that the witness meant “protruding”, and they may very easily have been dislodged during the operation or during the packing of the ear with the dressing.
There is a conflict in the evidence between the appellant and Dr. Shane as to what occurred during his, Dr. Shane’s, first examination of the appellant at the request of the respondent. The appellant testified that when Dr. Shane pointed out to her her paralyzed face condition and had her look into a mirror, he told her that he suspected the presence of bone chips in the operative site. Dr. Shane, on the other hand, cannot remember making this statement but was rather of the opinion that he would first think up three other reasons. It matters not whether Dr. Shane said this to the appellant because when Dr. Shane did operate he did discover the bone chips. That operation, as I have said, took place six days after the first operation, and Dr. Shane carried out the operation with the aid of microscopic surgery and the dental drill.
Dr. Shane testified that so soon as he opened up the area he saw the exposed facial nerve but he could not say whether it was exposed because of a surgical procedure or because of the process of the disease, being inclined to the latter view. He testified that the nerve at the point where one would expect it to be cut or injured was frayed but he could not be sure what had happened there so he went further up through the middle ear and in fact spent nearly
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three hours before he could find that there were two small bone chips in the nerve. He testified that he “lifted the nerve up out of the canal to see and that was the time that I saw these two small bone chips there and they were very difficult to see when you are dealing with a white bone and with a white nerve and with a white bone chip”. I am of the view that too much emphasis is being placed on the fact that Dr. Shane only discovered these two small white bone chips after three hours of investigation because those three hours of investigation were spent not in looking for the bone chips but in searching along the nerve to see if the nerve had been severed at any place and it was only when he failed, after a very thorough search, to find such severance, that he returned to the place where, as he put it, one would have expected trouble, that is, where the nerve had been frayed and at that point, upon lifting the nerve, he found the bone chips pressed into the nerve. The respondent, who was present when Dr. Shane performed the second operation, testified that those two chips were between the packing and the nerve and said it was probable they had been compacted against the nerve by the packing, although the packing normally was a loose one and not a tight one. Dr. Shane removed the two offending bone chips but the plaintiff has failed to make full recovery from her condition of facial paralysis and the jury upon the whole of the evidence awarded her general damages of $20,000.
The learned trial judge’s charge to the jury at the close of the evidence at the trial was the subject of some comment and criticism by counsel for the respondent before the Appeal Division but the Appeal Division found no fault with that charge nor can I find any fault with it in so far as the enunciation of the law is concerned. The learned trial judge particularly instructed the jury that they were entitled to use the doctrine of res ipsa loquitur in their consideration of the evidence. This course was approved by Cooper J.A. in the Appeal Division
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and I am of the opinion that the case is a proper one for the application of the maxim.
The learned trial judge was free, however, to give his view of what facts the evidence established so long as he was careful to point out to the jury that it was his own personal view and the learned trial judge certainly did so. I quote:
I am saying this all the time so that there will be no doubt in your minds, but, in my opinion, all the medical evidence that was presented carefully and systematically by the Defendant and by Doctor Shane, and which is quite fresh in your minds, leads me to say and leads me to believe that the radical mastoidectomy which Doctor Tenderenda performed demonstrated that there was no negligence whatsoever in the operation itself, nor in his post-operative treatment of the patient.
The learned trial judge also pointed out to the jury that there was no evidence whatsoever that the delay of six days between the first operation by the respondent and the second by Dr. Shane caused the appellant any damage. He then turned to what he termed the crux of the case: the question whether Dr. Tenderenda should have operated on the appellant at all or whether, realizing the deficiencies of the older method of surgical loupe plus hammer and chisel which he alone was qualified to use, he should have called upon some other surgeon to use the modern microscopic method. The learned trial judge put to the jury this question:
Was Doctor Tenderenda in breach of a duty to take care, insofar as his patient, Mrs. Eady, was concerned when he went into the operating room and operated upon her, as he was accustomed to do and as he has done some fifty odd times in the past over the experience that he had?
The learned trial judge put these questions to the jury:
QUESTIONS FOR THE JURY
Q. 1 Was there any negligence on the part of the Defendant to the female Plaintiff? Answer “yes” or “no”.
Answer: Yes.
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Q. 2 If your answer to Question 1 is “yes” in what did such negligence consist?
Answer: Knowing the probability that a radical mastoidectomy was necessary after examination of the patient and X-rays; knowing the possibility of complications following this type of surgery by performing this surgery by using the chisel and hammer method, he did not take due care in ensuring that all bone chips were removed from the operative area.
Q. 3 If your answer to Question 1 is “yes”, what amount of damages did the female Plaintiff suffer?
Answer: $20,000.
Upon these answers, despite a motion by counsel for the defence to strike out the answer to Question 2 as not being supported by the evidence, the learned trial judge gave judgment in favour of the appellant for $20,000 and in favour of her husband for $104.35.
Cooper J.A. gave long and very carefully detailed reasons for the Appeal Division. He outlined the issues as set out by counsel for the there appellant, here respondent, as follows:
1. That there is no evidence to support the verdict that the appellant was negligent “in that he did not take due care in ensuring that all bone chips were removed from the operative area”.
2. Alternatively, that the verdict was perverse and against the weight of the evidence.
3. That the learned judge misdirected the jury by directing them that the omission of the defendant to use the microscope and power drill technique in performing an operation known as a mastoidectomy upon the female plaintiff constituted negligence on the part of the defendant.
4. That in any event the damages awarded were excessive.
Being in favour of allowing the appeal, the learned Justice on Appeal did not deal with issue Number 4 at all. He dealt with issue Number 3 by pointing out that the jury did not find that the respondent, there appellant, was
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negligent in using the hammer and chisel method of performing the operation but that rather he failed in the standard of care required of him in the use of that method. With respect, I am in agreement with this view and, in my view, the issue as to a surgical loupe plus hammer and chisel as one method of treatment or microscopic surgery with the aid of a dental drill as another has been much over-emphasized in the course of the litigation. Cooper J.A. put the real issue before the Appeal Division and before this Court very succinctly when he said:
This brings me down to the vital issue in this appeal, namely, whether there was evidence upon which the jury could make the finding they did that the appellant did not take due care in ensuring that all bone chips were removed from the operative area.
It must be remembered that the jury has answered Questions 1 and 2 by finding that the respondent here was guilty of negligence in his treatment of the appellant and by finding that the negligence consisted of
Answer: Knowing the probability that a radical mastoidectomy was necessary after examination of the patient and x-rays; knowing the possibility of complications following this type of surgery by performing this surgery by using the chisel and hammer method, he did not take due care in ensuring that all bone chips were removed from the operative area.
That was an answer by a jury upon a question of fact.
I am, with respect, in agreement with Cooper J.A. when he quoted the oft-repeated principle that the answer cannot be interfered with unless it is so plainly unreasonable and unjust as to satisfy the court that no jury reviewing the evidence as a whole and acting judicially could have reached it. Cooper J.A. quoted McCannell
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v. McLean.
As Ritchie J. points out in Feener v. McKenzie, at p. 540, Duff C.J. continued in McCannell v. McLean, supra:
That is the principle on which this Court has acted for at least thirty years to my personal knowledge and it has been stated with varying terminology in judgments reported and unreported.
Thirty-seven years later, I can say the same thing.
Our task, therefore, is to determine whether, in our view, the jury could find that the respondent did not take due care in ensuring that all the bone chips were removed from the operative area. The standard of care adopted by Cooper J.A. was that set out by Schroeder J.A. in Gent v. Wilson; there, Schroeder J.A. followed the earlier judgment of Crits v. Sylvester. The latter decision was affirmed in this Court in [1956] S.C.R. 991, without the citation of a single authority, this Court simply dealing with analysis of the evidence. Schroeder J.A. said at p. 165:
The legal principles bearing upon the degree of care and skill which may be expected of physicians or surgeons are well settled but the difficulty arises in applying them to particular circumstances. Every medical practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. He is bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same experience and standing, and if he holds himself out as a specialist, a higher degree of skill is required of him than of one who does not profess to be so qualified by special training and ability. I do not believe that that standard of care has been more clearly or succinctly stated than by Lord Hewart C.J. in R. v. Bateman (1925), 41 T.L.R. 557 at p. 559,
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from which I quote: “If a person holds himself out as possessing special skill and knowledge and he is consulted, as possessing such skill and knowledge, by or on behalf of a patient, he owes a duty to the patient to use due caution in undertaking the treatment. If he accepts the responsibility and undertakes the treatment and the patient submits to his direction and treatment accordingly, he owes a duty to the patient to use diligence, care, knowledge, skill and caution in administering the treatment … The law requires a fair and reasonable standard of care and competence.”
Each case must, of course, depend upon its own particular facts. If a physician has rendered treatment in a manner which is in conformity with the standard and recognized practice followed by the members of his profession, unless that practice is demonstrably unsafe or dangerous, that fact affords cogent evidence that he has exercised that reasonable degree of care and skill which may be required of him.
Surely, the jury realized the exact situation and correctly considered the effect of the evidence when they answered Question 2. The respondent Dr. Tenderenda knowing that he could only operate by means of the surgical loupe and hammer and chisel and knowing that a radical mastoidectomy was going to be required, should have take upon himself the burden of very great care in scrutinizing the site with his limited means of vision. I am of the opinion that Dr. Tenderenda’s negligence was not from entering into the operation at all but from proceeding with the operation using the technique at which he was skilled but exercising less than all of the skill of which he was capable. I have already cited Dr. Shane’s view as to the difficulty of perceiving these bone chips. As Dr. Shane testified, it was very difficult to see the bone chips when he was dealing with a white bone, with a white nerve and with a white bone chip. Dr. Shane at that time was working with the aid of a microscope. Dr. Tenderenda had realized that vision with a microscope was much better than with the surgical loupe which he employed and therefore, in my view, Dr. Tenderenda should have exercised a greater
[Page 621]
degree of care in making certain there was nothing left in the wound which could have the deleterious effect that these bone chips did have.
In his examination-in-chief Dr. Tenderenda had testified that the bone was very brittle and “when you applied the chisel it did not break in the direction you tried to chisel off but rather it went in a different direction, you see”.
Under such circumstances, where chips of brittle bone resulting from the chiselling could be expected, Dr. Tenderenda nevertheless completed his operation in a fashion which he described in his evidence-in-chief as follows:
Q. Did you say “quite dry tympaniceas”?
A. No, quite dry, clean cavities combined with the middle ear tympanum with an open mastoid. Now, we usually do a suction to help the operation because the blood vessels are open during surgery and they bleed, and you, the surgeon cannot operate in that field full of blood and so we remove the blood with suction and, in the small areas we remove the blood with sponges and gauze to tie up the areas which are very fine. Myself, I like to use the hydrogen peroxide at times when there is too much bleeding and clean the area and, particularly, the attic where there is too much bleeding to control this and I did, in her case, as well, and I couldn’t find anything after this inspection and so I put the dressing into the ear and—
Q. Just before you go on with that, Doctor, in the course of this inspection did you see the facial nerve?
A. I couldn’t see the facial nerve, no.
Q. Was anybody on the dressing?
A. I put the dressing in.
Q. Was that the end of the operation?
A. Yes.
Dr. Tenderenda’s description of cleaning out is very brief indeed and it would seem that it
[Page 622]
must have consisted of merely swishing out with hydrogen peroxide. Dr. Tenderenda’s words, which I have quoted above, give me the impression that such inspection as he did carry out was addressed particularly to the “attic” and that there seems to have been little search for the almost inevitable bone chips throughout the rest of the operative site, and particularly the area where, on all the evidence, the facial nerve had been exposed either by surgery or by disease. In that area, as Dr. Shane pointed out, the surgeon was faced with white nerve, white bone and white bone chips, and that was the area in which a most careful search should have been carried out. It was Dr. Tenderenda’s opinion that the two and a half times modification provided by the surgical loupe enabled him to see; why then, it might be asked, did he not see these two most harmful bone chips? To have failed in such search, is, in my view, to have failed to accord to his patient the reasonable degree of care which the learned justice on appeal accepted rightly as being the proper standard of care.
For these reasons, I would allow the appeal.
The learned trial judge awarded to the plaintiffs damages in accordance with the answers of the jury. The question of damages was not dealt with in the judgment of the Appeal Division. The appellant, in her factum to this Court, stated:
The quantum of damages was not dealt with by the Appeal Court and is not in dispute although it was put in issue before the Appeal Court.
There is no reference in the respondent’s factum to the question of damages.
In my view, therefore, the proper order of this Court would be to allow the appeal and restore the judgment at trial. The appellant is entitled also to costs in the Appeal Division and in this Court.
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BEETZ J.—I have had the advantage of reading the opinions of Mr. Justice Spence and of Mr. Justice de Grandpré.
Once it is conceded that the jury was adequately instructed, as it was, and that the rule res ipsa loquitur applied in this case, as it must, then, in my view, one cannot escape the conclusion that there was some evidence upon which a finding of negligence could properly be made against Respondent by a jury.
Had this case been tried by a judge alone, I would have been inclined to review it on the basis of the whole of the evidence. But it has been tried by a judge and a jury and I cannot find that the jury’s answer to the first question is one that no jury reviewing the evidence as a whole and acting judicially could possibly have given.
In the result, I agree with the conclusions of Mr. Justice Spence.
Appeal allowed with costs, RITCHIE and DE GRANDPRÉ JJ. dissenting.
Solicitors for the appellant: Harold F. Jackson and George W. MacDonald, Halifax.
Solicitor for the respondent: Ronald J. Downie, Halifax.
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