Vail v. MacDonald, [1976] 2 SCR 825

Supreme Court of Canada

Vail v. MacDonald, [1976] 2 S.C.R. 825

Date: 1976-02-25

Dr. W.J. Vail (Plaintiff) Appellant;

and

David William MacDonald, York County Hospital

and

Dr. John Fearon (Defendants) Respondents.

1975: October 15, 16, 17; 1976: February 25.

Present: Martland, Judson, Ritchie, Spence and Dickson JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Physicians and surgeons—Negligence—Absence of pulse in fractured ankle—Responsibility of surgeon to consult cardiovascular specialist—Delay of surgeon in administering anticoagulant drugs.

Respondent M was admitted to hospital on March 19, 1969, in pain with a comminuted fracture of the tibia and fibula of the left ankle. He was referred by a staff physician to appellant as senior staff surgeon. The doctors were unable to find any pulse in the left ankle and applied a temporary cast pending the performance of an open reduction of the fracture site. The next day appellant visited respondent once and, despite respondent’s loss of feeling in the foot, made only a brief examination of the cast. On March 21 there were four visits and appellant opened the cast and took steps to prepare respondent for a diagnostic operation which took place on March 22. Respondent’s pain and discomfort continued and the condition of the leg seemed to worsen but it was not until March 25 that an anticoagulant drug was prescribed. Appellant did little or nothing to alleviate the worsening condition until April 16 when, with another surgeon, he amputated the toes of the left foot. It was then found necessary to amputate the whole foot above the ankle and this was done on April 24. Both the trial judge and the Court of Appeal found that appellant had been negligent insofar as he had failed to consult or obtain assistance from a specialist.

Held: The appeal should be dismissed.

Courts should be careful in cases of medical malpractice to distinguish between negligence and error in judgment. However in light of the findings of fact in both the Trial and Appeal Courts the conduct of the appellant

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over an extended period was not merely “an error in judgment”. A prima facie case of negligence was established and the appellant failed to provide a satisfactory answer to it.

Ares v. Venner, [1970] S.C.R. 608; Wilson v. Swanson, [1956] S.C.R. 804, referred to.

APPEAL from a judgment of the Court of Appeal for Ontario[1] varying a judgment by Addy J.[2] at trial in an action for damages. Appeal dismissed.

D.K. Laidlaw, Q.C., and Colin Campbell, for the appellant.

Barry A. Percival, Q.C., for the respondent.

The judgment of the Court was delivered by

RITCHIE J.—This is an appeal by Dr. William J. Vail from a judgment of the Court of Appeal of Ontario varying the judgment rendered at trial by Mr. Justice Addy whereby he had awarded the present respondent damages in the sum of $41,645.65 to be paid equally by the appellant and the York County Hospital Corporation (hereinafter referred to as the “Hospital”). Dr. Vail and the Hospital both appealed with the result that the Court of Appeal ordered the claim against the Hospital to be dismissed and damages in the full amount assessed at trial to be recovered from Dr. Vail.

The action arose out of the alleged negligence in the medical treatment administered to the respondent by Dr. Vail and the York County Hospital Corporation in the care and treatment of the respondent’s left leg from the time when he was admitted to the Hospital with a severely fractured ankle until more than a month later, by which time gangrene had set in and Dr. Vail decided to amputate the leg above the ankle.

The reasons for judgment delivered by Mr. Justice Addy after a trial lasting for seven days are now reported in (1972), 28 D.L.R. (3d) from p. 521 to p. 553, and those of the Court of Appeal in (1974), 41 D.L.R. (3d) at p. 321, and I shall for convenience make references to these reports in the course of these reasons.

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It was contended with great force on behalf of the appellant that the findings of fact at trial and in the Court of Appeal could not be said to be concurrent because of a difference in the approach between the two courts in certain respects and some differences in the inferences drawn from the accepted facts. There are, however, as will hereafter appear, concurrent findings in both courts as to the appellant’s negligence having been causative of the respondent’s loss which are based in large measure upon his failure to prescribe anticoagulant drugs at an earlier stage in the treatment, his neglect of his patient for twenty days during which the condition of the leg continued to deteriorate, and his failure to confer with a qualified cardiovascular specialist when he found himself unable to diagnose the serious symptoms which had developed and which dictated his decision to amputate the respondent’s foot.

In the Court of Appeal Mr. Justice Brooke delivered a lengthy opinion disclosing that his views did not coincide with those of the learned trial judge in every particular, but I do not find it necessary to consider these differences because the majority opinion of the Court was delivered by Mr. Justice Dubin with whom Kelly J.A. concurred, and I agree with the overall view of the circumstances which he expressed at 41 D.L.R. (3d) at p. 348, saying:

In my view there was evidence upon which the learned trial Judge could find, as he did, that Dr. Vail failed to exhibit in the treatment of his patient the standard of care which was required of him, and that his failure to do so resulted in the physical impairment for which damages were sought in this action. Although, in my respectful view, the learned trial Judge was unnecessarily harsh on Dr. Vail, I do not think it unfair to conclude from the evidence that, after performing the closed reduction following his initial attendance on the patient, Dr. Vail did little if anything for him until it was too late to avoid amputation. After a careful review of the evidence, I cannot help but feel that Dr. Vail failed to direct his mind to the serious condition which the nurses’ notes disclosed, and the concern expressed to him by the nurses as to the condition of the patient.

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I do not find that Mr. Justice Addy’s account of the various symptoms which manifested themselves in the respondent’s leg while its condition deteriorated progessively between the 19th of March when he was admitted and the 16th of April when the first operation was performed, differs materially from that of Mr. Justice Brooke and Mr. Justice Dubin, and having regard to the fact that the very thorough expositions of the facts contained in the judgments at trial and on appeal have now been conveniently reported in the volumes to which I have referred, I find it unnecessary to retrace each step in the sad story and I think that for the purpose of this appeal the effect of the evidence can be summarized as follows:

The respondent was admitted to Hospital on March 19, 1969, in great pain with a comminuted fracture of the tibia and fibula of the left ankle. He was first seen by Dr. Fearon who was a general practictioner on the staff and who referred the case to the appellant as senior staff surgeon; the doctors were unable to find any pulse in the left ankle and Dr. Vail applied a temporary cast pending the performance of an open reduction of the fracture site.

On the following day Dr. Vail visited the respondent at least once and although he was then informed of the loss of feeling in the foot, he did no more than to make a brief examination of the cast. On March 21st there were four visits from the doctor and on this day he opened the cast to examine the site of the injury and this caused some relief to the patient, but as there was still pain, he opened the cast still further in the afternoon and took steps to prepare the respondent for a diagnostic operation (fasciotomy) which took place on the following day.

The respondent’s pain and discomfort continued and the condition of the leg appeared to be worsening in the next few days, but, although the anaesthetic originally administered after admission on March 19th might have had some anticoagulant effects, it was not until March 25th that the doctor first prescribed the type of anticoagulant drugs the primary purpose of which was to assist in breaking down any blockage to the circulation. The evi-

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dence indicates it to be probable that if these drugs had been administered at an earlier stage they would have had a beneficial effect. Although he may have visited the patient on April 9th, Dr. Vail in fact did little or nothing to alleviate the patient’s condition which was deteriorating daily until April 16th when in company with another surgeon, he amputated the toes of the left foot and at this time it was found that the tissue loss in the lower leg was such that the whole foot had to be amputated from above the ankle, which was done on April 24th.

I have not attempted to analyze the details of the day to day deterioration of the respondent’s condition because I am satisfied to adopt the following paragraph from the reasons for judgment of Dubin J.A. at p. 348 as descriptive of Dr. Vail’s care of his patient:

The charts disclosed only but casual attendance by Dr. Vail; no concern on his part as to the progress of the patient, no consultation, and no medication or other steps directed to remedy the apparent circulatory problem until it was too late.

Although I am not in agreement with all that is said in the reasons for judgment of Mr. Justice Brooke, I would adopt the following description of Dr. Vail’s treatment of this case after symptoms of circulatory impairment manifested themselves on the 20th and 21st of March. In this regard he said, in part, speaking of Dr. Vail:

...his evidence is that he did not know the cause at the time the fasciotomy was performed,… I think that Dr. Vail knew that he did not know the answer at the critical time on March 20th and 21st and perhaps the 22nd…

In these circumstances I think he was under a duty to his patient to take the advice of a specialist or alternatively to have his patient attended by the specialist; his failure to do so was negligence.

In the same judgment Mr. Justice Brooke later said, at p. 346:

It took some time from the hour of the injury until the irreversible damage signalled by the mottling of the flesh occured. The use of anti-coagulants and the other related drugs such as were resorted to on March 25th would probably have arrested the condition which resulted in his loss and taking care to regard only the

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evidence in this case, I think it is quite a proper inference that this was so.

This view is shared by Mr. Justice Dubin who said, at p. 349:

I accept as a fact that the expertise of Dr. Vail in the area of vascular and circulatory impairment was greater than that of a general practitioner but less than a cardiovascular specialist. However, when he found himself unable to diagnose the cause of the symptoms displayed in the plaintiffs foot, I consider that he failed in his duty to the plaintiff in not seeking the advice or collaboration of such a specialist, or at least in failing to recommend the desirability of such a course of action and in not earlier prescribing the anticoagulants which at a later date he directed to be administered to the plaintiff.

These findings of negligence on appeal reflect the conclusion reached by the trial judge after hearing the evidence when he said, at (1972), 28 D.L.R. (3d) at p. 545:

When it became obvious that the patient’s condition had deteriorated, or was deteriorating, the doctor failed to either consult or obtain assistance from any other specialist, either in his own field or in the field of cardiovascular medicine, and contented himself with doing nothing and refraining from taking any action whatsoever without establishing that medically nothing could be done. When Dr. Vail finally decided upon the fasciotomy, which was only a diagnostic procedure and which, in fact, produced negative results, the harm had then been done. In any event, if there was still then some action which could have been taken, he failed to take it. I do not accept his explanation as to “corridor consultations”, which normally take place, without his being able to say when or with whom they were held or what was advised.

As I indicated at the outset, these concurrent findings of fact in both courts support the conclusion reached by the Court of Appeal and although such findings do not relieve this Court of the responsibility of reviewing the evidence, it has long been the established practice to treat them with the greatest respect and not to interfere with them unless it can be shown that they are manifestly wrong. There is, in my view, no evidence here of error in the findings made in both courts as to the negligence of the appellant having been a cause of the respondent’s loss.

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Mr. Justice Addy judged the appellant’s actions on the basis of the standard of care accepted for a general practitioner and in so doing he fully accepted the evidence of Dr. Fearon and concluded that Dr. Vail’s treatment had not met this standard.

Mr. Justice Brooke in the course of his reasons for judgment appeared to consider that Dr. Vail’s qualifications required an even higher standard of care and as I have pointed out, Mr. Justice Dubin accepted that Dr. Vail’s expertise in the area of vascular and circulatory impairment was greater than that of a general practitioner. In considering the standard of care applicable to Dr. Vail, the reasons for judgment delivered by Mr. Justice Hall on behalf of this Court in Ares v. Venner[3], at p. 614 are in my view particularly relevant. He there said:

Having heard the evidence, the learned trial judge found as follows:

We have here a broken leg at a ski resort-albeit a severe break. These circumstances are not the unusual circumstances found in Challand and Ostash cases which involved very difficult diagnosis of complications resulting from gas gangrene and carbon monoxide respectively. The complication found in this case was one of circulatory impairment.

The classic signs or symptoms of circulatory impairment manifested themselves clearly and early.

There has been established, to my satisfaction, that in such cases there is a usual and normal practice in the profession, regardless of specialty, namely to split or bivalve the cast. If no relief is then obtained, one should refer to a specialist or, if equipped, explore further to ascertain the cause of the problem.

The defendant did not follow such practice. He was, in my judgment, concerned more with maintaining the good fracture reduction he had obtained than with the maintenance of good circulation. This led to the irreparable damage. To use a legal expression, in these cases time becomes of the essence.

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I am satisfied that the defendant’s decision was not the result of exercising the average standard and he is therefore liable for the resulting damage.

This was a finding made on contradictory evidence and upon evidence which the learned trial judge was entitled to rely. He also had the testimony of the appellant which of itself indicated a deteriorating condition through the decisive Monday to Wednesday period and which was corroborated by the findings of Dr. Johnston. The finding of negligence, supported as it is by the evidence, should not be disturbed.

It is true that in the present case Dr. Vail did split the cast on the morning of March 21st but the evidence indicates that by that time the symptoms had begun to manifest themselves. In other respects it would be difficult to find two cases in which the facts are more similar.

I appreciate that courts should be careful in cases of medical malpractice to distinguish between negligence and error in judgment, and I subscribe to the following language employed by Mr. Justice Rand in the case of Wilson v. Swanson[4] at p. 812 where he says:

An error in judgment has long been distinguished from an act of unskilfulness or carelessness or due to lack of knowledge.

In the present case, however, in light of the findings of fact in both the Trial and Appeal Courts, I do not think it can be said that this was simply a case of lack of judgment on the part of Dr. Vail; here both the Trial Judge and the Court of Appeal have found that the failure to consult a cardiovascular specialist when he was unable to diagnose the cause of the rapidly deteriorating condition of the respondent’s leg, constituted a breach of duty to the respondent and that the lack of concern manifested by the doctor in the weeks following the diagnostic operation and his failure to prescribe anticoagulants at an earlier stage, amounted to negligence. The doctor’s conduct can in my opinion be characterized as indifference to his patient’s welfare over an extended period which is a very different thing from “an error in judgment”.

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I am satisfied that the evidence called on behalf of the respondent established a prima facie case of negligence by the doctor and that the evidence called on his behalf failed to provide a satisfactory answer to the case so established, it therefore follows that upon consideration of all the evidence in this sad and singular case, I am unable to avoid the conclusion that it was the appellant’s negligence which resulted in the serious disability sustained by the respondent.

I share the opinion of the members of the Court of Appeal that there is no sufficient evidence in the record to warrant the conclusion that such negligence as there may have been on the part of the nurses or other members of the Hospital staff was a contributory cause of the respondent’s loss and there is therefore no room for a division of fault between the doctor and the Hospital. In this regard the following finding made by Mr. Justice Brooke at 41 D.L.R. (3d) p. 347 was adopted by the other members of the Court. He said, speaking of the evening of March 20th:

I agree with the learned trial Judge that the symptoms observed that evening were those of change, indeed, serious change; but Dr. Vail was closely cross-examined by counsel for the respondent as to his probable course of conduct had he been notified of the changes which had occurred and, while he said that he would have attended at the hospital and examined the respondent’s condition, he was very doubtful that he would have taken any action at that time. While it may be that the nurses were remiss in not calling the doctor and therefore negligent, there is, in view of the doctor’s evidence, no reason to believe that the negligence was a contributory cause of the respondent’s loss.

For all these reasons I would dismiss this appeal with costs.

Appeal dismissed with costs.

Solicitors for the appellant: McCarthy & McCarthy, Toronto.

Solicitors for the respondent, David William MacDonald: Benson, McMurtry, Percival & Brown, Toronto.