Gallant v David Thompson Regional Health Authority No. 6 (Red Deer Regional Hospital Centre), 2013 ABQB 340

Court of Queen ’ s Bench of Alberta Citation: Gallant v David Thompson Regional Health Authority No. 6 (Red Deer Regional Hospital Centre), 2013 ABQB 340 Date: 20130610 Docket: 0610 00837 Registry: Red Deer Between: Shawn Gregory Gallant by His Guardians Sharon Gallant and Paul Gallant, Sharon Gallant and Paul Gallant Plaintiffs - and - David Thompson Regional Health Authority No. 6, Carrying on Business Under the Name and Style of Red Deer Regional Hospital Centre and Red Deer Regional Hospital Centre, Dr. G.R. Nye and Dr. Alayne M.

Farries Defendants Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment. _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice M Bast _______________________________________________________ I. Introduction

[ 1 ] This action relates to the medical treatment provided to the Plaintiff, Shawn Gregory Gallant (“Shawn”), during wisdom tooth extraction on September 24, 2004 (the “surgery”). [ 2 ] The action was discontinued against the dentist, Dr. Nye, and the Red Deer Regional Hospital. [ 3 ] It is alleged that the Defendant, Dr. Alayne M. Farries (“Dr.

Farries”), an anesthesiologist, breached the standard of care owed to her patient, Shawn, during dental surgery for the removal of wisdom teeth, causing injury. [ 4 ] The action is brought on behalf of Shawn by his parents and appointed guardians, Sharon Gallant and Paul Gallant, and by Sharon Gallant and Paul Gallant in their individual capacities. The Plaintiffs seek general damages for pain and suffering, loss of amenities of life, future cost of care, and special damages for past cost of care. II. Issues [ 5 ] Broadly stated, the issues in this case are: 1. Did Dr.

Farries breach the applicable standard of care as an anesthesiologist, treating a patient in September 2004? 2. Did Shawn suffer an injury or loss? 3. Were Dr. Farries’ actions the actual and legal cause of the Plaintiff’s injury or loss? III. Background of the Parties A. The Defendant [ 6 ] Dr. Farries is an anesthesiologist practicing in the City of Red Deer. She obtained her medical degree from the University of Alberta, Faculty of Medicine in 1985. She then did her residency in family medicine at the Royal Alexandra Hospital in Edmonton between 1985 and 1987.

She entered a residency in anesthesiology at the University of Alberta in 1987, which she completed in 1991. Dr. Farries has been working as an anesthesiologist in Red Deer since 1994. In addition to her active clinical practice, Dr. Farries is the clinical director for the Department of Anesthesia for Alberta Health Services in the Central Zone. She also goes to various meetings and conferences on anesthesia to fulfil her professional licensing requirements with the College of Physicians and Surgeons. [ 7 ] Dr. Farries met Shawn for the first time on September 24, 2004. B.

The Plaintiff [ 8 ] Shawn, born in June 1986, was 18 years of age on [...], 2004, when he had his wisdom teeth extracted during general anesthetic at Red Deer Regional Hospital Centre. The surgery was performed by Dr. Nye, a dentist, and the anesthesiologist during the dental surgery was the Defendant, Dr. Farries.

[ 9 ] Shawn was diagnosed with cerebral palsy (“CP”) at about 16 months of age and he also suffered from spastic quadriplegia. Despite his significant physical and cognitive disabilities, Shawn enjoyed a full and fairly active life, in most part due to the commitment and dedication of his loving parents. While he was unable to walk or sit on his own, he operated his own power wheelchair from a very early age, and by the time he started school and thereafter he was able to independently navigate the wheelchair at home, getting on and off the school bus, at school and in the community.

He graduated from a modified school program in June 2004. [ 10 ] Shawn experienced no problems from general anesthetic which had been administered to him during a number of previous surgeries, including: 1. hernia surgery at three months of age; 2. eye surgery to correct crossed eyes at five years of age; 3. leg surgery involving his hamstrings; and 4. a six hour surgery in 2000 involving the insertion of rods and screws into his spine . IV. General Law [ 11 ] The Plaintiff has the onus to prove on a balance of probabilities the four elements of medical negligence: (

a) The doctor owed the plaintiff a duty of care; (

b) The doctor breached the applicable standard of care; (

c) The plaintiff suffered an injury or loss; and (

d) The doctor’s conduct was the actual and legal cause of the plaintiff’s injury or loss. [ 12 ] There is no dispute that Dr. Farries owed a duty of care to Shawn Gallant. V. Standard of Care [ 13 ] The first issue to be determined is whether Dr. Farries’ treatment of Shawn breached the applicable standard of care. The Plaintiffs alleged Dr.

Farries’ breach relates to a number of errors, including her failure to: a. administer appropriate anaesthetic medications considering the nature of the surgery and Shawn ’ s pre-existing conditions and appropriate dosages of medication to reverse the effects of the anaesthetic; b . to properly monitor the administration of the anaesthetic and Shawn ’ s oxygenation levels during and after surgery; c. make proper charting entries after the administration of the reversal drug; and d. take appropriate steps to keep Shawn oxygenated after surgery and until he was released from the recovery room. A .

The Law on Standard of Care [ 14 ] The parties generally agree on the principles that are applied to determine whether a medical professional has met the standard of care. A doctor must possess the skill, knowledge and judgment of the average reasonable doctor. In judging the average reasonable doctor, regard must be had to the special class and community to which the doctor belongs. If she holds herself out as a

specialist, a higher degree of skill is required of her, equal to that of a reasonably competent member in her group of specialists: Wilson vSwanson, (SCC), [1956] SCR 804; Challand v Bell (1959), (AB KB), 18 DLR (2d) 150 at 154 (AltaSC (TD)); Cranwill v James (1994), (AB KB), 164 AR 241 at para 41 (QB), aff’d (1997), 1997 ABCA 13 ,193 AR 204 (CA), leave to appeal to SCC refused, [1997] 2 SCR vii. [15] The classic statement with respect to standard of care was stated in Crits v Sylvester, (ON CA), [1956] OR132 (CA) at 143, aff'd (SCC), [1956] SCR 991: Every medical practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree ofcare.

He is bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of thesame 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 doesnot profess to be so qualified by special training and ability. [16] In the case of a specialist, the doctor’s behaviour will be assessed in light of the conduct of other ordinary specialists, whopossess a reasonable level of knowledge, competence and skill in that field: Fournier v.

Wiens, 2004 ABQB 430 at para 76, 368 AR 306. [17] The plaintiff has the onus of proving on a balance of probabilities that the doctor departed from the normal standard of theprofession. Usually, expert evidence is required to do this. The court needs such information to determine if the doctor failed to meet thestandard of care: German v.

Alberta, 2009 ABQB 558 at paras 17-18. [18] In Legal Liability of Doctors and Hospitals in Canada, 4th ed (Toronto: Carswell, 2007), Ellen I Picard and Gerald Robertsondiscuss the standard of care forming part of the basis of negligence at 393-394: Not only is expert evidence important in proving the plaintiff’s claim, in most cases it is essential. As we have seen, the standard of careis that of the reasonable physician in similar circumstances.

Without evidence from experts, the Court is not in a position to assesswhether the defendant physician was negligent, except in those relatively rare cases where the Court is in as good a position as a medicalexpert to determine what ought to have been done. Therefore, save in those exceptional cases, a court should not find a physiciannegligent in the absence of expert evidence, and a plaintiff’s failure to adduce that evidence will usually be ground for

summarydismissal of the claim. [19] Treating physicians who have not been called or qualified as experts are restricted in their evidence to their own observationsand treatment of the patient.

Treating physicians may not provide their opinions on the possible future condition of a patient, thecausation of the patient’s injuries or the care provided by others: Lowe v Larue, 2000 ABCA 28, 250 AR 220 at paras 22-24 and 27-29,and Marchand (Litigation guardian of) v Public General Hospital Society of Chatham (2000), (ON CA), 51 OR(3d) 97 at paras 88-97 (CA), leave to appeal to SCC refused (2001), 282 NR 397 (note). [20] It is common practice in medical negligence cases to argue that the practice was generally approved and employed bymembers of the medical profession at the time in issue.

In Ter Neuzen v Korn, (SCC), [1995] 3 SCR 674 the SupremeCourt focussed on the Court’s lack of technical expertise in the area under investigation. The Court recognized though that there may beexceptions to the general rule and stated at para 51: I conclude from the foregoing that, as a general rule, where a procedure involves difficult or uncertain questions of medical treatment orcomplex, scientific or highly technical matters that are beyond the ordinary experience and understanding of a judge or jury, it will notbe open to find a standard practice negligent.

On the other hand, as an exception to the general rule, if a standard practice fails to adoptobvious and reasonable precautions which are readily apparent to the ordinary finder of fact, then it is no excuse for a practitioner toclaim that he or she was merely conforming to such a negligent common practice. 1. Hindsight [21] It is clear that a court should take care not to assess the case with the benefit of hindsight: Wilson v. Swanson, (SCC), [1956] SCR 804 at 812. Therefore, a court should guard against giving undue weight to the distressing result for the patient. A

court should also be cautious in assessing the testimony of the experts whose opinions are based on a retrospective assessment ofmedical issues: Kehler v Myles (1986), (AB KB), 74 AR 259 (QB); aff’d (1988), 1988 ABCA 350 , 92 AR345 (CA); leave to appeal refused [1989] SCCA No. 84. 2. Error in Judgment [22] A well established principle of medical negligence law is that an error of judgment does not necessarily constitute negligence:Picard at 364. An error of judgment is to be distinguished from

an act of unskillfullness or carelessness or error due to lack of knowledge.Conversely, the mere fact that the doctor’s error involves the exercise of judgment does not always shield the doctor from liability. If theerror is one which a reasonable doctor would not have made in similar circumstances, liability will be imposed. 3. Charting [23] In Gemoto v. Calgary Regional Health Authority, 2006 ABQB 740, 67 Alta LR (4 th) 226, Justice Martin determined that thefailure to chart deprives the court of relevant information: The law accords a special status to contemporaneous chart entries as business records.

Hospital records, including physicians’ andnurses’ notes, can be received in evidence as prima facie proof of the facts stated therein: Ares v. Venner, (SCC), [1970]S.C.R. 608 (S.C.C.) at 626. The case law allows a Court to conclude that the absence of contemporaneous chart entries at crucial pointspermits the inference that nothing was charted because nothing was done: Kolesar v. Jeffries, (SCC), [1978] 1 S.C.R.491 (S.C.C.).

This is not a rule of law or an automatic conclusion: it is an inference which may only be drawn if supported after a carefulweighing of all the evidence (para 100). [24] In Duncalfe v Capital Authority, 2009 ABQB 80, 4 Alta LR (5th) 201 Justice Crighton confirmed that hospital records formpart of the record; they do not stand alone: at para 48. The Court noted that while the doctor was not able to rely on information gaps tohis advantage, the neither should the court ignore, “...a logical progression in the information chain where those progressions arereasonably probable...” (at para 50). B.

Positions of the Parties on the Standard of Care 1. Plaintiffs’ Position [25] The Plaintiffs’ theory is that there was a hypoxic or anoxic event, at some point in either the operating room or the recoveryroom. Anoxia is the absence of oxygen and hypoxia is low oxygen saturation. The Plaintiffs argued that the records did not support thefact that Shawn was well-monitored. They suggested that Dr. Farries’ charting was inadequate as it left the Plaintiffs without any way ofknowing whether Dr.

Farries checked Shawn’s neuromuscular response during the reversal phase of the anesthesia and without any wayof knowing whether Shawn was adequately oxygenated or ventilated. [26] Further, the Plaintiffs submitted that Dr. Farries’ credibility must be questioned based on the error in her evidence at discovery as to the dosage of Rocuronium, the neuromuscular blocker, she administered which she correctedfor the first time at trial.

In addition to this error, she initially testified that it took four minutes to move the stretcher down the hallwaybut then she later resiled from this position and said that it took one or two minutes. [27] The Plaintiffs submitted that Dr. Farries administered an inappropriate dose of Rocuronium to Shawn. The Plaintiffs arguedthat the evidence on the standard of care for the appropriate dosage of Rocuronium came from Dr. Farries herself. Dr. Farries testifiedthat she was aware in 2004 of the recommendation that Rocuronium should be reduced when dealing with people suffering from CP.

Shetestified that she didn’t realize until after discovery that she did not reduce the dose. She admitted that it was her standard practice to givelesser dosages to patients with CP. When she gave Shawn the reversal drug, he did not immediately come around. Dr. Farries had toadminister a second reversal and did not realize at the time that his slowness to come around had anything to do with her failure to

administer a reduced dosage of Rocuronium. [ 28 ] Specifically Plaintiffs’ counsel argued as follows in closing argument: So, I submit that on the standard of care you have ample evidence to find that she breached the standard of care and that as a result of that Shawn was given too much anaesthetic and as a result of that he did not come out of the neuromuscular block as expected and that he was unable to breath on his own for a significant period of time and that the treatment of him is – uncharted, unverified, and it is consistent –his injury afterwards –his condition afterwards is consistent with him having suffered some type of hypoxic or anoxic episode during that unexplained 18 to 23 minutes, and I submit that you can –you can decide that on a balance of probabilities.

It is more likely that’s what happened. 2. Defendant ’ s Position [ 29 ] The Defendant submitted that Dr. Farries did not breach the standard of care. The Defendant emphasized that the onus is on the Plaintiffs to establish that the standard of care was breached and that the Plaintiffs provided no expert evidence on the appropriate standard of care. [ 30 ] Dr. Farries’ evidence is that she provided adequate oxygenation and ventilation throughout Shawn’s anaesthetic and that she monitored him constantly. Dr. Farries testified that Shawn was never hypoxic nor anoxic while under her care.

She testified that this type of event would be a major event which she and others present in the operating room would have been aware of and, if it had occurred, she would have charted it and that she would have expected others in attendance to do so as well. The Plaintiffs offered no evidence to contradict Dr. Farries’ testimony. [ 31 ] Further the Defendant seeks an adverse inference against the Plaintiffs for failing to call any of the other people in the operating room or the recovery room on September 24, 2004, including Dr. Nye, two operating room nurses, a respiratory technician and recovery room staff.

The Plaintiffs who have the burden of proof have opted not to call any of these witnesses and the Defendant submitted that an adverse inference may be drawn from their failure to do so. C. Evidence on Standard of Care 1. Evidence of Sharon Gallant [ 32 ] Shawn’s wisdom teeth were impacted and required removal. Dr. Nye, the dentist, recommended the extraction be done in the hospital under general anesthetic because it would be difficult to position Shawn, and keep him still, in a dental chair due to his spastic condition. Shawn previously had a tooth removed once when he was young. According to Mrs. Gallant, Dr.

Nye did not discuss the risk of the surgery or the anesthetic. [ 33 ] Shawn had the required medical check-up before surgery. He and his mother met Dr. Farries for the first time on September 24, 2004 just before surgery. [ 34 ] In direct examination, Mrs. Gallant, Shawn’s mother, testified that Shawn answered Dr. Farries’ questions himself and gave his own history. Her evidence was that Dr. Farries commented on how articulate Shawn was and never indicated that she could not understand Shawn. However, in cross-examination, Mrs. Gallant admitted that she helped Shawn in giving his medical history. [ 35 ] Mrs.

Gallant admitted that at the time of surgery and at the time of trial, she did not feel there was any increased risk of anaesthesia in patients with CP, and although Shawn had had many prior surgeries, she had never once been told of any increased risk to him because of his CP.

[ 36 ] Mrs. Gallant stated that Dr. Farries did not discuss any risks of general anesthetic, nor did she advise Mrs. Gallant that Shawn’s CP put him at a higher risk. [ 37 ] According to Mrs. Gallant, she waited a long time to be updated as to Shawn’s surgery, longer than the half-hour, more like a couple of hours, even though she kept asking people to tell Dr. Farries that she was waiting. When Dr. Farries finally came out, she took Mrs.

Gallant to see Shawn and, told her that she was sorry it took so long but there had been a little bit of confusion and that they had to bag Shawn from the operating room to the recovery room. Mrs. Gallant’s evidence was that she did not understand what this meant at the time. [ 38 ] In October 2004, Mrs Gallant received the report of operation from the hospital (Exhibit 1, Tab 2, page 263-4) which read, “The patient was returned to the recovery room with the tube in place and extubated shortly thereafter. He tolerated the procedure well. There were no intra-operative complications.” [ 39 ] Mrs.

Gallant became aware that Shawn was given more than one reversal drug to get him out of general anaesthesia and she was not told of any other problems. [ 40 ] When Mrs. Gallant first saw Shawn in the recovery room, he was on his back, and when she rolled him over, she felt that he looked right through her and then he said “this is the worst fucking surgery.” This shocked her because Shawn never swore. When Shawn did not speak further while they were at the hospital over the next hour, she attributed this to the fact that he had packing in his mouth and was lethargic from the surgery. [ 41 ] When Mrs.

Gallant and Shawn took the access bus home from the hospital, Shawn did not acknowledge a driver he knew. Once home, Mrs. Gallant described Shawn as just sitting and staring without talking. At first she assumed that he did not feel like talking. Over the next few days, Shawn was not interested in food and he did not “chit-chat” as he had in the past. In addition, he would just drive his powered wheel chair in circles, and he was not interested in television or anything around him. [ 42 ] When Shawn saw Dr. Nye the next week, Mrs. Gallant was told the healing was going well. Shawn did not talk to Dr.

Nye at all except to say “thank you” when he was prompted by his mother. Mrs. Gallant began telling people that Shawn was not the same as before surgery and she did not understand why he was not snapping out of it. [ 43 ] Mrs. Gallant finally phoned Dr. Farries at home and asked Dr. Farries whether she had ever heard someone not acting like himself after surgery. During the call, she reminded Dr. Farries that Shawn was bagged from the operating room to recovery. Mrs. Gallant’s evidence was that Dr. Farries said she did not recall that, but would check her notes and call back. [ 44 ] Mrs.

Gallant’s evidence was also that Dr. Farries told her that what Mrs. Gallant was describing “was only common in elderly people and low functioning individuals – but Shawn did not fall into those categories because he was so articulate.” [ 45 ] Mrs. Gallant’s evidence was that Dr. Farries called her back and said that her notes confirmed that she had bagged Shawn from the operating room to recovery. Dr. Farries did not state there was any problem with this and suggested that because Shawn had CP, Mrs. Gallant should take him to see someone with that specialty about this. 2. Evidence of Dr. Farries (

a) Pre-surgery [ 46 ] Dr. Farries’ evidence at trial was that she reviewed Shawn’s medical chart and significant pre-operative history (Exhibit 1, Book 1, Tab 2, p. 262) before meeting him for the first time just prior to surgery on September 24, 2004. Dr. Farries was aware that

Shawn had CP, spastic quadriplegia and scoliosis. She was aware Shawn had never had any problems with general anesthetic during his previous surgeries, and that he had tolerated major general anesthetic over a period of four to five hours during back surgery. [ 47 ] Dr. Farries was aware from her conversation with Dr. Nye the morning of the surgery, that due to Shawn’s quadriplegia, Dr. Nye did not do the tooth extractions in his office. Instead, he had decided to do Shawn’s surgery under general anaesthetic to keep him still during surgery. [ 48 ] Dr. Farries had anesthetized a CP patient before.

She was aware that anesthetic textbooks indicated that a person with CP would be slower coming out of a neuromuscular block, and therefore slower to awaken and breath on their own. [ 49 ] At the time of the trial, Dr. Farries was aware of reports in the literature that elderly patients and patients with Alzheimer’s could have complications from general anesthetic. She did not know if her awareness of that literature predated Shawn’s surgery. She was not aware of any literature or journal articles that discussed cognitive decline in CP patients following general anesthetic. [ 50 ] Dr.

Farries did not tell Shawn or his mother that CP patients are slower to wake up from anesthesia. She stated it was not her practice to do so in September 2004 or even now, because taking longer to awaken does not pose any risk to the patient as long as the anesthesiologist stays with them. [ 51 ] When Dr. Farries met Shawn and his mother in the surgical holding area. Dr. Farries noted Mrs. Gallant to be “palpably anxious”, but forthcoming in answering questions about Shawn. Dr.

Farries’ evidence at trial was that she tried to talk to Shawn and asked him questions, but that his mother answered the majority of the questions for him. (

b) Pre-induction in the operating room [ 52 ] Dr. Farries took great care to pad and support Shawn’s body and limbs with pillows and wedges, to ensure there was no strain or pressure on his joints or soft tissues during the surgery. [ 53 ] Shawn was hooked up to a number of monitors but Dr. Farries gave evidence that the best monitor is the anesthesiologist, who is always present in the room for dental surgery because he or she shares the patient’s airway with the surgeon. (

c) The Anesthetic Record [ 54 ] Dr. Farries made the notes on the anesthetic record (p. 265, in Exhibit 1, Binder 1, Tab 2). She made the pre-operative notes, on the top-right of the anesthetic record, in the anesthetic holding room, during her pre-surgery meeting with Shawn and his mother, surgery, and they document her awareness of Shawn’s previous surgeries. Her knowledge of previous eye surgery alerted her not to use a particular drug and since his noted allergy to bananas is associated with a latex allergy, she knew they would have used certain products on him.

If she had had any concerns after listening to his heard and lungs and after assessing his airway, she would have noted them on the anesthetic record and there are no such notes. (

d) The Induction Phase [ 55 ] It was Dr. Farries’ evidence that general anaesthesia is conducted in three phases: the induction phase, the maintenance phase, and the emergence phase. The induction phase of anaesthesia is a busy time during which the patient is induced and control is taken over their airway. The anesthesiologist’s hands are very busy during this phase giving drugs, intubating the patient and monitoring the airway, and as such are not available to make notes. Dr. Farries makes her induction phase notes during the maintenance phase. [ 56 ] Dr Farries testified that during the induction phase, her hands are busy putting an oxygen mask on the patient to increase their

oxygen, inserting the intravenous (“IV”), starting it and then administering the induction drugs through it. Once the patient is asleep, Dr. Farries intubates the patient, by inserting a tube into their upper airway so that they can be ventilated and oxygenated while they are under the general anesthetic . Shawn ’ s teeth were okay, so she used a standard metal blade laryngoscope to facilitate his intubation. [ 57 ] The neuromuscular block drug that Dr. Farries administered to Shawn during the induction phase is called Rocuronium.

That drug, which takes three to four minutes to take effect, is used to paralyze the patient’s muscles, and once it is administered the patient cannot breathe on their own. Prior to intubation, the anesthesiologist confirms the patient is paralyzed by applying a nerve stimulator to the patient’s eye. Dr. Farries gave evidence that the usual dosage of Rocuronium is 0.6 milligrams per kilogram of body weight. Dr. Farries agreed that she had reduced the dose of Rocuronium when dealing with other patients with CP. [ 58 ] Dr.

Farries testified that the usual dosage of Rocuronium for a one hour surgery on a patient of Shawn’s weight is 50 milligrams. At examinations for discovery which were conducted in February 2008, Dr. Farries said that she administered a reduced dosage of 30 milligrams to Shawn because of his CP. At trial, Dr. Farries corrected her discovery evidence, and stated that she had not reduced the dose. Dr.

Farries’ trial evidence was that after the date of discovery, she read the discovery transcripts and did the dosage calculation, and it was at that point in time that she realized that she had not administered a reduced dosage to Shawn. [ 59 ] During re-direct at trial, Dr. Farries was asked if she thought the non-reduced dosage administered to Shawn was in error. In response, she testified: It’s not that high. The literature may show that the dose is 0.4 to 0.6 milligrams per kilogram but clinically we give a dose that’s a lot larger than that most commonly.

So I was surprised myself when I did read the dose of Rocuronium that the literature supports because clinically we often give a higher dose than that. But the problem with drug information is that the dosages for a lot of drug information that’s published and supported by literature is not always done. [ 60 ] Dr.

Farries’s evidence was that if a patient was given too much neuromuscular block or the patient does not metabolize a normal dosage well, the patient merely has a prolonged response to the neuromuscular blockage and the anesthesiologist just continues to monitor the patient and treat the patient appropriately. (

e) The Maintenance Phase [ 61 ] Dr. Farries stated that after the surgery starts, the maintenance phase of anesthesia begins and this is when she makes her first charting entry. She does the bulk of her recording during the maintenance phase, while she also visually and auditorily monitors the patient, and records patient vitals such as oxygen saturation, end tidal CO 2 , blood pressure, and heart rate. [ 62 ] In monitoring the patient, Dr. Farries testified that she watches both the patient and the electronic monitors.

She watches the rise and fall of the patient’s chest and that their skin colour remains pink, to ensure that the patient is ventilated and staying oxygenated. If any of the electronic monitors detects critical vitals, auditory alarms go off, and she intervenes to stabilize the patient. [ 63 ] Dr. Farries testified that Shawn’s heart rate was unremarkable. The surgeon, the nurses and herself would have been aware if he was ever without oxygen because they were monitoring him.

If he had ever been without oxygen, electronic alarms would have gone off, and they would have seen a change in his skin colour or the colour of his blood which they would have recorded. [ 64 ] When asked if she would have been aware if Shawn had been without oxygen for any length of time during the surgery, Dr. Farries responded: You would see. You would see that he wasn’t pink anymore, you’d see that his chest would stop rising and falling, the ventilator might start alarming for you, or you would not hear it moving like it normally does.

And if – if something was happening, the nurses, they tell you if there was anything that they had observed happening, and the surgeon tells you. You can watch through that surgery, if the surgeons cause bleeding and the blood turns a bit darker if the patient has hypoxy or a malignant hypothermia.

[ 65 ] Dr. Farries testified that end-tidal CO 2 is the measurement of carbon dioxide in the lungs. Her evidence was that Shawn’s end-tidal CO 2 levels that are recorded on the anesthetic record as 42, 43, 43, are at or near the normal level of 42, and that alarms would have gone off if they had reached 60. [ 66 ] Dr. Farries explained that Shawn was hooked up to an oximeter which is a finger probe that monitors oxygen.

The oximeter monitors the patient’s heart rate, determines if blood is getting to the patient’s finger, and advises the physician that the patient is getting oxygen at all times by measuring the patient’s percentage of oxygen. [ 67 ] Dr. Farries testified that oxygen saturation is the percentage of oxygen saturation of the hemoglobin. While 100% oxygen saturation is the goal, desired oxygen saturations during anesthesia are above 95%. If saturation falls below 90% the oxygen saturation monitor alarm would go off and extra oxygen would be given.

Further, low oxygen saturation causes the patient’s blood colour to darken, the patient’s lips and skin to turn blue, and heart rate changes. She stated that Shawn’s recorded oxygen concentration up until recording stopped was recorded as 98%, 98%, 98%, which is normal. These numbers come from the pulse oximeter. If the numbers are high the oximeter has a “nice pleasant tone” but if the numbers drop it has an “unpleasant tone.” [ 68 ] Dr. Farries testified that anoxia is the absence of oxygen and that hypoxia is low oxygen saturation. She said that hypoxia occurs when oxygen saturation falls below 85% saturation.

Dr. Farries stated that low oxygen saturation is a very significant event for an anesthesiologist and if it had occurred in Shawn’s case it would have been charted not only by the anesthesiologist, but also by others who were in the operating room. Dr. Farries testified that Shawn was not anoxic or hypoxic in her care, and in that regard stated: I can recall the anesthetic and that is a significant event for an anesthetist and that would’ve been charted by me and it would’ve been documented by the nurses. And I’m never alone with Shawn, so there were nurses there, they would’ve documented it.

It would’ve been documented by the surgeon because that is a significant event that we do not like to occur. And the other thing is, if a patient becomes hypoxic, if the saturation probe was – monitor was alarming off, that you – or you saw that the patient wasn’t ventilating, you would intervene and then you would chart those interventions once you had done those interventions. And it is – it is a very significant event, it would’ve been documented somewhere. (

f) The Emergence Phase [ 69 ] Dr. Farries explained that once the surgery is completed, the emergence phase begins. The anesthesiologist increases oxygen flow to 100% and administers some reversal drug to reverse the paralyzing effect of the neuromuscular block. [ 70 ] It was Dr. Farries ’ evidence that she does not record during the emergence phase because her hands are once again busy with clinical care of the patient, including the administering the reversal drug and increasing oxygen flow. [ 71 ] It was Dr.

Farries’ evidence that the anesthesiologist determines when to administer the reversal drug by using a portable nerve stimulator which applies a small electrical current to the patient’s eye. In a normal awake person, this will cause four eye contractions or twitches, which is called “the train of four.” No contractions or twitches are seen if the patient is still paralyzed from the anesthetic.

So in the reversal phase, the anesthesiologist uses the eye stimulator and watches for “the train of four.”Once the three twitches are observed, the anesthesiologist knows it is time to administer the reversal drug. [ 72 ] Dr. Farries testified that she does not chart the reaction to the nerve stimulator but she would not reverse a patient if the train of four number was at zero. She charted on the anesthetic record that she administered the reversal drug to Shawn on the timeline with an “R” in a circle. That circled “R” appears on the timeline somewhere between 13:30 and 13:45.

It was her testimony that she did not chart further on the anesthetic record while Shawn remained in the operating room because her hands were clinically engaged in his care. [ 73 ] The anesthetic record does not show when Shawn left the operating room. Dr. Farries evidence was that before he left he would have been stable, meaning that excess bleeding would have stopped, his heart rate and blood pressure would have been stable, and

he would have been pink. Dr. Farries testified that Shawn was not breathing on his own at this point, so she hand-ventilated him after the “bellows” of the anesthetic machine was switched off, by compressing the bag and then letting it go. When the bag is compressed it expands the patient’s lungs with oxygen. Dr. Farries was trying to see if the reversal drugs would kick in and Shawn would regain some spontaneous ventilatory movements. She was not concerned because he was pink. Dr.

Farries further testified that some patients, with or without CP, have prolonged blockage and are slow to wake, and in those cases the doctor just ventilates and oxygenates them through it. Since Shawn had CP, his slow waking was not unexpected. [ 74 ] Dr. Farries explained that when the patient is moved from the operating room to the stretcher the EKG and blood pressure cuff are taken off. The pulse oximeter is left on the patient’s finger to the very end.

Once the pulse oximeter is taken off, the intravenous bag is swung over to the stretcher and a four man lift is used to move the patient from the operating room table to the stretcher. The nurse then immediately puts the oximeter back on the finger. The blood pressure cuff and the ECG are not put back on. The pulse oximeter is also used in the recovery room. [ 75 ] Dr Farries testified that “hand-bagging” is preferable to a mechanical ventilator, because when she hand-bags she gets “that tactile sense” enabling her to adequately assess the ventilation. Dr.

Farries testified that it is her standard practice to hand-ventilate at this point. Anesthesiologists are trained to put patients on the hand-bag ventilator and to wait for the sign or feeling that the patient is spontaneously recovering. Dr. Farries stated that it is common to wait in the operating room for the patient to recover from the neuromuscular blockade and resume spontaneous ventilation. [ 76 ] Dr.

Farries testified it is not her usual practice to make any notes of how long she personally hand bags a patient, and that Shawn may have been hand-bagged all the way until 15:05 when he was extubated, but probably five minutes prior to that. During cross- examination, Dr. Farries agreed that there was nothing that would have prevented her from making a late entry in that regard on Shawn’s chart, but on re-direct on this point, she clarified that she would only make a late entry if there has been an adverse event that she thought would affect the patient’s outcome.

In this case, her evidence was that there was no adverse event. [ 77 ] In direct examination, Dr. Farries’ evidence was that it was three to four minutes from the operating room to the recovery room. During cross-examination, she agreed that it likely took approximately two minutes to move the stretcher from the operating room to the recovery room. (

g) The Recovery Room Record [ 78 ] Dr. Farries explained that the recovery room record, (p. 266 of Exhibit 1, Book 1) is charted by recovery room nurses. It shows Shawn was admitted to the recovery room at 14:00, and at that time he was unconscious, his colour was pink, his respirations were regular and even, his mouth packs were in place, and “bagging in progress.” Dr. Farries testified that this reference to “bagging” means that a portable bag mask ventilator was attached to Shawn’s nasotracheal tube and he was being ventilated by hand. Dr.

Farries testified that she ventilated Shawn with her own hands the whole time from operating room to recovery room and she continued in the recovery room as he was still intubated. Dr. Farries watched him to be sure he remained pink and to see that his chest was rising and falling. When Dr. Farries administered a second reversal drug in the recovery room, Shawn responded. At 15:30 Shawn’s oxygen level dropped to 88% while sleeping and that his oxygen was increased to four litres. Dr. Farries gave evidence that this did not concern her as anoxia or hypoxia occur at oxygen levels below 85%. [ 79 ] Dr.

Farries testified that she never charts or makes records on the post-anesthetic record, because that record is completed by the recovery room nurses. While Dr. Farries had no knowledge as to why they did not chart that the second reversal was done in the recovery room, she wrote the PARR (post-anesthetic recovery room) notation on the anesthetic record in the recovery room to record that a second reversal drug was given. [ 80 ] Dr.

Farries testified that she administered a second reversal agent because she did not clinically observe Shawn to begin spontaneously ventilating, and that as he responded to the second reversal drug he slowly got back his own spontaneous respiratory efforts. Although his respiration efforts remained weak, this did not cause her any concern. Shawn left the recovery room at 15:48, and according to Dr. Farries his anesthetic was completely uneventful.

[ 81 ] Dr. Farries agreed it would be below her standard of practice, as an anesthesiologist, not to pay particular attention to the oxygenation of patients such as Shawn in the emergence phase. Dr. Farries also agreed it was part of her personal standard of practice to accurately measure the drugs she was administering in applying anesthesia. [ 82 ] Dr Nye’s typed surgical report at Exhibit 1, Book 1 at pps 263-264, states: Patient was returned to the Recovery Room with the tube in place and extubated shortly thereafter. He tolerated the procedure well. There were no intro-operative complications. (

h) After Shawn ’s release from Hospital [ 83 ] Dr. Farries confirmed that Mrs. Gallant called her at home some period of time after Shawn was released from hospital, asking questions about the surgery. The evidence of Dr. Farries on this issue was that she reviewed Shawn’s chart, determined that it was a completely uneventful anesthetic, she told Mrs. Gallant that she had no explanation for what she was observing and she encouraged Mrs. Gallant to go have a CT scan or an MRI and to consult a physician to get a diagnosis and treatment because there may be something wrong with Shawn. 3. Credibility of Dr.

Farries [ 84 ] The Plaintiffs challenge the credibility of Dr. Farries evidence, in particular the following statements: (

a) Her belief at the time of discovery that she had administered a reduced dosage of Rocuronium to Shawn Gallant [ 85 ] The Plaintiffs argued that the dosage was recorded and apparent on the anesthetic record, so it should have always been apparent to Dr. Farries. They argued further that her administration of a non-reduced dosage should have come to her attention: (

a) when she reviewed Shawn's records after Mrs. Gallant's phone call; and (

b) when she prepared for discovery. [ 86 ] Plaintiffs’ counsel made much of Dr. Farries’ late admission at trial, that it was not until after discovery that she realized that she had not reduced the dosage of Rocuronium she administered to Shawn. However, as previously stated, Dr. Farries’ dosage was recorded and was always apparent on the anesthetic record, so her error would have been apparent at the time of discovery and could have been put to her at that time.

Further, since the dosage was apparent on the record, it seems unlikely that she would deliberately mislead about her belief as to the dosage she administered, since she would know that such a false admission would be detected. As such, I accept Dr. Farries’ evidence that she made an error at discovery and did not realize her error until later. (

b) Dr. Farries ’ trouble understanding what Shawn said to her in the holding room before surgery, and that there was a communication problem [ 87 ] The differences in Dr Farries’ evidence at discovery and trial, on her conversation with Shawn and the character of that conversation, does little, if anything, in the way of providing a basis for challenging her credibility. [ 88 ] At trial, Dr. Farries gave evidence that she tried to talk to Shawn, and she asked Shawn questions, but that his mother answered the majority of the questions. Dr.

Farries’ evidence was that she remembers she thought it was odd that the mother always referred to her son as "Shawn Gallant," using both his first and last name. This use of Shawn’s two names by his mother, was consistent

with Mrs. Gallant’s custom or manner of speaking of her son during her testimony in the trial. [ 89 ] During cross-examination, Dr. Farries’ evidence was that she had trouble understanding Shawn, that he was soft-spoken, and that she did not specifically recall if she understood a single word he spoke, but in general she recalled that there was a communication problem. After providing that answer, Dr. Farries’ discovery transcript was put to her, including the answer in which she stated that Shawn spoke a few sounds which his mother interpreted as words, but that Dr.

Farries could not understand, and in fact she did not understand anything he was trying to communicate with her. [ 90 ] I find as a fact, based upon the oral evidence given at trial and the documentary evidence of medical, school, and assessment records contained in Exhibit 1, that those who regularly communicated with Shawn (family, friends, teachers and aides) were capable of understanding what he said, and that others who had limited experience with him had more difficulty understanding him, especially if he was nervous. I also find that Shawn’s mother assisted him by answering questions posed to him by Dr.

Farries. [ 91 ] I further find that the evidence given by Dr. Farries at discovery and trial on the issue of Shawn's understandability is not inconsistent and therefore does not affect her credibility. I make this finding because, not everyone who conversed with Shawn found him to be understandable, particularly those unfamiliar with him, which is consistent with the evidence of Dr. Farries who had only met Shawn for the first time just before surgery. (

c) Her assertion that no anoxic or hypoxic event occurred during Shawn's general anesthesia and that she properly monitored, ventilated and oxygenated him during the 18-23 minutes, between the end of the anesthetic record charting and the recovery room record charting [ 92 ] Dr. Farries testified that she did not chart Shawn’s vitals after she administered the reversal drug because her hands were clinically engaged in his care, including oxygenating and ventilating him. She also testified that an anoxic or hypoxic event was significant and would have been charted by herself and others. Since Dr.

Farries credibility was not undermined in respect of the two assertions already discussed, or otherwise, it is not possible to conclude on that basis that she should not be found to be credible on this issue as well. Further, is it not possible to find her credibility is undermined based upon the absence of charting alone, because: (

a) it was her uncontroverted evidence that other persons would have been present with her and Shawn both in the operating room and during his trip to the recovery room, and they would have recorded any significant event; and (

b) the others present during Dr. Farries care of Shawn were not called to give evidence or contradict her evidence. (

d) Conclusions on credibility of Dr. Ferries [ 93 ] Dr. Farries was not an evasive nor reluctant witness. No logical, factual or internal inconsistencies were apparent in her evidence. No expert or other evidence was adduced to establish that her evidence was either impossible or improbable. In conclusion, Dr. Farries credibility is not undermined and I see no reason why her evidence should not be accepted. 4. Expert Evidence [ 94 ] There was no expert evidence provided on the standard of care of an anesthesiologist. Dr.

Pachet, who testified on behalf of the Plaintiffs, was qualified as an expert in the field of neuropsychology. The Defendant ’ s expert, Dr. Lapointe was admitted as an expert neuroradiologist. Neither the Plaintiff nor the Defendant called an anesthesiologist. [ 95 ] The issue of standard of care for an anesthesiologist was beyond Dr. Pachet’s expertise and he gave no evidence about it. His only comment on the standard of care was as follows in his report:

Other appropriate medial professionals such as an anaesthetist and a dental surgeon regarding the standard of care associated with the dental surgery would need to be consulted. [ 96 ] Dr. Ferreira was qualified as an expert in pediatrics and medical genetics. He gave no evidence on the standard of care although the Plaintiffs submitted that Dr. Ferriera attributed the changes in Shawn’s condition to a peri-operative cerebral hypoxia episode in 2004. In his opinion letter, Dr. Ferreira stated that he was asked to review Shawn’s history and evaluate the possibility of an underlying metabolic disorder.

He was told that Shawn experienced significant perioperative complications, including incorrect dosing of his long-acting anesthetic, and that there was a requirement for resuscitation following reversal of the anesthesia. [ 97 ] Dr. Ferreira stated in his report: Shawn’s history is consistent with an acute periorperative cerebral hypoxic episode occurring on the background of stable neurological compromise due to CP. The timed course of events is not consistent with a neurodegenerative, genetic, or metabolic disorder and as such we did not feel it was worthwhile investigating him for such conditions.

Shawn’s history is consistent with an acute peri-operative cerebral hypoxic episode occurring on the background of stable neurological compromised due to CP. Again, this does not assist in determining the appropriate standard of care for an anesthesiologist in administering treatment to a patient in Shawn’s condition. D. Analysis on the Standard of Care [ 98 ] The applicable standard of care in this case is that of a reasonably competent anaesthesiologist practising in Red Deer, Alberta, in 2004. The Plaintiffs have the onus of establishing that Dr. Farries breached the applicable standard of care.

In my view, they have failed to adduce adequate expert evidence addressing the normal standard of skill, judgment and knowledge prevailing in the area of anaesthesiology in September 2004. 1. Did Dr. Farries breach the standard of care by administering an incorrect dosage of Rocuronium? [ 99 ] The Plaintiffs focussed on the dose of Rocuronium that was administered to Shawn. At trial, Dr. Farries said that 50 milligrams is the usual dosage for a one hour surgery for a patient of Shawn’s weight. At examination for discovery, she said that she thought that she had reduced the dosage to 30 milligrams. [ 100 ] Dr.

Farries testified that while the literature may show the dose is .4 to .6 milligrams per kilogram, clinically, anesthesiologists give a larger dose. Specifically she stated at trial: So I was surprised myself when I did read the dose of Rocuronium that the literature supports because clinically we often give a higher dose than that. But the problem with drug information is that the dosages for a lot of drug information that’s published and supported by the literature is not always what is clinically done. [ 101 ] No literature was put to her.

No expert evidence was provided to this court on what the appropriate standard of care was with respect to administering Rocuronium to a CP patient. In fact, no contradictory evidence, to that of Dr. Farries, was provided. [ 102 ] I am left with Dr. Farries’ testimony on this point. I accept her evidence and conclude that administering a regular dosage to

Shawn does not pose any risk and does not fall below the standard of care. 2. Did Dr. Farries breach the standard of care by failing to adequately monitor and control oxygenation? [ 103 ] The Plaintiffs allege that Dr. Farries failed to adequately monitor and control oxygenation during the period for which Dr. Farries did not make any chart entries, that is between approximately 13:35 and 14:00 when the recovery room record begins.

The Plaintiffs further allege that such failures are fraught with obvious risks such that anyone is capable of finding it negligent. [ 104 ] Specifically, the Plaintiffs allege that Dr. Farries’ charting was inadequate and it left the Plaintiffs without any way of knowing whether Dr. Farries actually monitored Shawn’s vitals to ensure he was adequately oxygenated and ventilated. [ 105 ] The failure to chart does not automatically lead to an inference of negligence, particularly in this case because there were others present in the operating and recovery room, who could have provided valuable evidence.

The Plaintiffs chose not to call these witnesses. The onus is not on the Defendants to call the witnesses. Although I do not make an adverse inference against the Plaintiffs for failing to call the others who may have shed light on this gap in the charting, I cannot help but observe that their testimony would have been useful. [ 106 ] The lack of charting of a particular matter does not necessarily mean that procedures were not conducted, and a court is entitled to rely on evidence of the usual practice of a physician: Keith v. Abraham , 2011 ONSC 2 , at para 279 .

When records are inadequate, the Court can consider a logical progression in the information chain where those progressions are reasonably probable. Hospital records only form part of the record; they do not stand alone: Duncalfe v. Capital Health Authority 2009 ABQB 80 . Further, the Plaintiffs failed to lead any evidence about proper charting and the appropriate standard of care or what ought to have been charted. [ 107 ] Dr. Farries explained that the “gap” in records, was during the emergence phase of anaesthetic.

She further explained that this is a busy time and she does not chart during this period because her hands are busy with the clinical care of the patient. In particular, she was increasing oxygen flow, checking Shawn with the neuromuscular monitor for signs of spontaneous awakening, drawing up the reversal drugs, administering the first set of reversal drugs, transferring Shawn from the operating room table to a stretcher, and all the while monitoring him.

She stayed right at Shawn’s head for the move to the recovery room, accompanied the stretcher to the recovery room and all the while monitored his oxygenation and ventilation. In my view, there was no opportunity during this period of time to chart. [ 108 ] I accept Dr. Farries’ evidence that she did not make charting notes for 18-23 minutes because her hands were otherwise occupied in the treatment of Shawn and based upon that evidence I cannot conclude in relation to the lack of charting entries that “nothing was charted because nothing was done.” [ 109 ] I accept Dr.

Farries’ testimony that she monitored Shawn throughout his course in the operating room and the recovery room and that she was monitoring him even when she did not make any chart entries of doing so. She testified that she was never alone with Shawn, never more than an arms’ length away from him in the operating room and accompanied him from the operating room to the recovery room where she continued to ventilate him using the bag/mask (“hand bagging”). She testified that it was not her usual practice to chart the amount of time that she hand-bags a patient.

There is no contradictory evidence on this point and I accept Dr. Farries’ explanation. [ 110 ] Further, Dr. Farries testified and I accept her testimony that Shawn was never hypoxic nor anoxic in her care. Further, I accept that this would be a major event which she and others in the operating room would have been aware of and would have been charted. [ 111 ] In cross-examination, it was put to Dr. Farries that she might have hand bagged Shawn right up until 14:30, the time at which it is recorded that she extubated Shawn. During cross-examination, Dr.

Farries testified that Shawn could have been hand bagged all the way until 15:05 when he was extubated, but likely 5 minutes prior to that. She explained that she would have made sure that Shawn had adequate ability to protect his own airway and adequate volume before extubating. [ 112 ] I find that there was no evidence that Dr. Farries fell below a proven standard of care and I find that she did not fail to to monitor

and/or control oxygenation levels during the period for which Dr. Farries did not make any chart entries between approximately 13:35 and 14:00. I accept Dr. Farries uncontroverted evidence on the following points: (

i) Dr. Farries continuously monitored Shawn pre-surgery and post-surgery; (ii) Shawn was never hypoxic nor anoxic while under her care. A hypoxic or anoxic event is a major episode which would have been charted. Further, there were others in the room, who would have been aware of the event had it occurred. The others included Dr. Nye, two operating room nurses and a respiratory technician, none of which were called to give evidence; (iii) Shawn’s oxygen levels up until recording stopped were recorded as 98%.

Although the recovery room record shows that at 15:30 Shawn’s oxygen levels dropped to 88% and in response he was given more oxygen, this did not concern Dr. Farries because his oxygen levels were never below 85%, which would have denoted a hypoxic event; (iv) Dr. Farries timed the administration of reversal drugs by watching the surgery and by using an eye stimulator and looking for the “train of four.” She administered the second set of reversal drugs to Shawn in the recovery room between 14:00-14:18; (

v) Dr. Farries noted on the anesthetic record that a second reversal drug was given. She administered the second set of reversal drugs to Shawn in the Post Anaesthetic Room (“PARR”) between 1400 and 1418 and charted the fact she did so on the anesthetic record; (vi) The emergence phase of anesthesia is a busy time and she does not chart during this period because her hands are busy with the clinical care of the patient, including administering the reversal drug and increasing the oxygen flow; (vii) Dr. Farries was monitoring Shawn even when it is not charted; (viii) Dr.

Farries was never an arms length away from Shawn and never alone with him; (ix) Dr. Farries accompanied Shawn from the operating room to the recovery room where she continued to ventilate him using the bag mask ventilator; (

x) The recovery room record is charted by the recovery room nurses. The record states that Shawn was admitted to the recovery room at 14:00, he was unconscious, his colour was pink, his respirations were regular and “bagging was in progress”; (xi) Dr. Farries monitored Shawn’s oxygen situation while she was bag mask ventilating him. She could feel pressure; she was watching, listening, checking for colour changes; (xii) Dr.

Farries explained that the 18-23 minute gap in the records was during the emergence phase of anaesthetic while she was monitoring Shawn and her hands were busy administering hands-on care to him and not available to record; (xiii) Dr. Farries may have hand bagged him from 1430 up to 1505 (up to five minutes prior to extubating Shawn).Although a nurse or a respiratory technician may have assisted with the hand bagging, Dr. Farries would not have left the room. It is not Dr.

Farries’ standard practice to make notes on how long she hand-bagged a patient; (xiv) Even if she was not personally hand-bagging the patient, she would be watching the patient the entire time; and

(xv) If Shawn had been hypoxic or anoxic he would have been blue, his chest would not have been rising and falling, and the alarms on the mechanical monitors would have alerted the health care professionals attending to Shawn. None of these events happened. VI.

Injury [ 113 ] The Plaintiffs cannot succeed in this action without proving that Shawn has suffered a material injury. “Proof of the other essentials of the negligence action will be of no avail unless the plaintiff also satisfies the court that he or she has suffered a loss which was caused by the defendant’s actions”: Picard at 257. [ 114 ] This is a difficult case in which to assess injury.

There is no bright line despite the Plaintiffs’ argument that Shawn went into surgery in one mental and physical state and emerged from surgery as a different person with different cognitive abilities and different physical symptoms. [ 115 ] The evidence establishes that after surgery Shawn was behaviourally different and over time developed medical symptoms which were not present before his dental surgery. It is this difference which the Plaintiffs argue is the evidence that Shawn was injured in the course of the general anaesthetic administered to him for his dental surgery.

However, the evidence establishes that some of the changes were not immediate and did not manifest until weeks, months or even years after the surgery. This evidence will be discussed further at length below. VII. Causation A. The Law on Causation [ 116 ] If there was a breach of the standard of care, I will review whether there was a causal link between the alleged negligence and the alleged injury.

The Plaintiffs have the onus of proving on a balance of probabilities, that the doctor ’ s breach of the standard of care caused injuries suffered by the plaintiff. [ 117 ] The traditional legal test is the “but for” test. Chief Justice McLachlin in Resurfice Corp. v. Hanke , 2007 SCC 7 , [2007] 1 SCR 333, addressed when negligence causes an injury.

The usual approach is to apply what is commonly called the ‘but for' test; ‘but for’ the negligent act or omission of the defendant, the plaintiff would not have been injured.' The Court held that a connection between the negligence and injury is also required: ... [C]ompensation for negligent conduct should only be made "where a substantial connection between the injury and the defendant's conduct" is present.

It ensures that a defendant will not be held liable for the plaintiff's injuries where they "may very well be due to factors unconnected to the defendant and not the fault of anyone" ... (paras 21-23). [ 118 ] In Resurfice , the Court reiterated that a second approach may be necessary where causation cannot be proved due to factors outside the plaintiff's control. The second approach illustrates that the plaintiff only need prove that the negligence ‘materially contributed' to the injury.

For example, there are cases where it is impossible to prove causation due to "current limits of scientific knowledge” (at para 24-25). [ 119 ] There has since been confusion in the application of the material contribution test. Recently, in Clements v Clements , 2012 SCC 32 at para 46 , 346 DLR (4th) 577, the Supreme Court clarified the test. The Supreme Court concluded that the trial judge erred by: (

i) requiring scientific proof as a necessary condition for finding “but for” causation; and, (ii) applying the “material contribution to risk” test.

[120] The Court clarified that the law of negligence does not require scientific proof of causation. However, the “but for” causationtest should be applied in a robust, pragmatic and common sense fashion. As a general rule, the plaintiff must show that she would nothave suffered the loss “but for” the negligent acts of the defendant.

The Court stated that a common sense inference of “but for”causation from proof of negligence usually flows without difficulty. “Evidence connecting the breach of duty to the injury suffered maypermit the judge, depending on the circumstances, to infer that the defendant’s negligence probably caused the loss” (para 10). [121] With respect to the material contribution test, the Court summarized at para 13: To recap, the basic rule of recovery for negligence is that the plaintiff must establish on a balance of probabilities that the defendantcaused the plaintiff’s injury on the “but for” test.

This is a factual determination. Exceptionally, however, courts have accepted that aplaintiff may be able to recover on the basis of “material contribution to risk of injury”, without showing factual “but for” causation. Aswill be discussed in more detail below, this can occur in cases where it is impossible to determine which of a number of negligent acts bymultiple actors in fact caused the injury, but it is established that one or more of them did in fact cause it.

In these cases, the goals of tortlaw and the underlying theory of corrective justice require that the defendant not be permitted to escape liability by pointing the finger atanother wrongdoer. Courts have therefore held the defendant liable on the basis that he materially contributed to the risk of injury. [122] Proof that the defendant’s conduct “materially contributed” to the risk of the plaintiff’s injury will only suffice in cases where: (

a) the plaintiff establishes that her loss would not have occurred “but for” the negligence of two or more defendants, each of whom ispossibly in fact responsible for the loss; and, (

b) the plaintiff, through no fault of her own, is unable to show that any one of the possible tortfeasors was in fact the necessary or “butfor” cause of her injury, because each defendant can point to another as the possible “but for” cause of the injury, defeating a finding ofcausation against any one of them on a balance of probabilities. [123] The majority of the Court ordered a new trial, since the trial judge’s errors of law were such that the Court could not be certainwhat the trial judge would have decided had he applied the law correctly. [124] The Clements decision confirms that plaintiffs will only be able to rely on the “material contribution of risk” approach in thevery limited circumstances. [125] The onus is on the plaintiff to prove that his injury was caused by the defendant’s conduct: Resurfice at para 21.

Directevidence of causation is the best evidence of causation and the plaintiff’s case will be stronger if it is adduced. However, if directevidence is not available a plaintiff may lead circumstantial evidence to create an inference of causation.

If such a prima facie case isestablished, the defendant is then required to adduce evidence to negate it or at least present an explanation that is at least consistent withno negligence: Picard at 397. [126] Recently, in Ediger v Johnston, 2013 SCC 18, the Supreme Court of Canada reaffirmed that a trier of fact may, upon weighingthe evidence, draw an inference against a defendant who does not introduce sufficient evidence contrary to the Plaintiff’s theory. Thiscase was a medical malpractice case.

The Court stated at para 36: The Court of Appeal’s reasons also suggest that it understood the trial judge to have improperly relied on Snell v. Farrell, (SCC), [1990] 2 S.C.R 311, in order to draw an “inference of causation” (paras. 83-85). Snell stands for the proposition that theplaintiff in medical malpractice cases — as in any other case — assumes the burden of proving causation on a balance of theprobabilities (ibid., at pp. 329-30). Sopinka J. observed that this standard of proof does not require scientific certainty (ibid., at p. 328);Clements, at para. 9.

The trier of fact may, upon weighing the evidence, draw an inference against a defendant who does not introducesufficient evidence contrary to that which supports the plaintiff’s theory of causation. In determining whether the defendant hasintroduced sufficient evidence, the trier of fact should take into account the relative position of each party to adduce evidence (Snell, atp. 330).

[ 127 ] The Supreme Court allowed the appeal from the British Columbia Court of Appeal’s dismissal from the plaintiffs action for medical negligence. B. The Positions of the Parties 1. Plaintiffs ’ Position [ 128 ] The Plaintiffs submitted that it is more likely than not that the injuries suffered by Shawn which resulted in a total change in him were caused by the negligence of Dr. Farries or were materially contributed to beyond the de minimus threshold. The Plaintiffs submitted that Shawn’s injury is most consistent with a hypoxic injury. Further, the Plaintiffs submitted that Dr.

Ferreria’s evidence was that Shawn’s injury was most consistent with a hypoxic or anoxic event. [ 129 ] The Plaintiffs submitted that the “but for” test is sufficient for the purposes of the present case. However, the Plaintiffs urged me to draw inferences from the facts and conclude that it is more likely than not that the injuries suffered by Shawn which have resulted in a “total change” were caused by the negligence of Dr.

Farries. [ 130 ] The Plaintiffs submitted that Shawn’s significant behavioral change which came about immediately after surgery, is consistent with a number of organic causes, a number of which have been ruled out by the medical evidence, leaving anoxia/hypoxia as one of the remaining potential causes. [ 131 ] The Plaintiffs seek this court to conclude that these changes were caused by the anesthetic event because the changes were identified immediately after the anesthetic event; Shawn behaved in one way before he had general anesthesia, and behaved differently afterwards, and there is an absence of records for 18-23 minutes, therefore his change in behavior must be as a result of something that happened to him in those unrecorded minutes. [ 132 ] During closing arguments, counsel for the Plaintiffs argued: [W]hat other theory has been put forward to refute these suggestions?

I would submit nothing. Nothing. The defence has not called a neuropsychologist, they haven’t called a geneticist to – to debate these issues with these gentlemen and you’re left with evidence, but the overwhelming thing about it is he goes in there in one condition and comes out a few hours later in a totally different condition which he has remained in to this day and I would submit it is overwhelming that a change happened to him during surgery, and that has always been the theory that has been put forward . . . 2.

Defendant ’s Position [ 133 ] The Defendant submitted that it is not sufficient for the Plaintiffs merely to demonstrate that there was a reasonable chance that the injury was due to the Dr. Farries’ negligent act or omission. The “but for” test recognizes that compensation for negligent conduct should only occur where there is a substantial connection between the injury and the defendant’s conduct.

The law has recognized that there are situations where if there is no direct evidence is available, a plaintiff may use circumstantial evidence to try and create an inference of causation and if a prima facie case for causation is established the defendant is required to present evidence to negate that causation with an explanation that is at least consistent with no negligence. [ 134 ] The Defendant argued that there is no evidence, either scientific or medical, of any damage to Shawn’s brain.

Further, the Defendant submitted that there is no expert evidence before this court that supports an inference of causation. There is nothing in Dr. Pachet’s report or his testimony that says organic or brain related changes specifically could be caused by an anoxic event during surgery. Further, the Defendants argued that Dr. Ferreira was provided with an incomplete factual background, in particular, he was told that the change in Shawn immediately followed the surgery. Both Drs.

Pachet and Ferreira were given incomplete medical records and neither reviewed the extensive records which suggest a progressive change in Shawn’s behaviour and speech.

C. Evidence on Causation [ 135 ] In order to assess whether an anoxic or hypoxic event occurred on September 24, 2004, it is necessary to review the evidence of Shawn’s condition both pre- and post- dental surgery. What follows is a detailed review of his assessments and diagnoses. 1. Pre-surgery Behavior, Psychological and Education Assessments and Diagnoses [ 136 ] As previously noted, despite Shawn’s mental deficits, he attended school, and graduated from a Grade 12 modified special education program in June 2004.

He was able to navigate his power wheelchair at home, at school and in the community with minimal supervision. [ 137 ] While Shawn could not use eating utensils, he could feed himself finger foods and he had definite likes and dislikes when it came to food. Although he was not toilet trained, he could communicate his need to be changed or his desire for food or drink. He slept in a regular bed, and was moved from bed, to wheelchair, to bathtub with the aid of a ceiling lift. He could pick out what he wanted to wear and he cooperated with being dressed to the best of his ability.

Shawn was a sports fanatic, and watched sports on two televisions in his room. While he could not operate the remote control for the televisions, he knew and could say what channel his desired program was on. He played video games using a joy stick similar to the one on his wheel chair, and he attended hockey games, family vacations, movies and restaurants with his family or friends. Shawn’s family described him as a talkative, a “people person,” with a sense of humor. He talked on the phone and was very social with friends and family.

While those new to Shawn reported difficulty understanding his speech, his friends, family and school aid had no trouble understanding him. [ 138 ] Due to his physical restrictions, Shawn required assistance for his basic needs (grooming, dressing, diaper change and feeding) at home and at school. He also required the assistance of a developmental aide to perform school activities which required manual skills, such as art class, woodworking and physical education. Although he was unable to read on his own, he loved school, and he participated in modified physical activities using his wheel chair.

He used “intelli-keys” to write things on his computer, and kept a form of journal this way. [ 139 ] The evidence established that Shawn would dwell on or worry about things that stressed him, such as his father leaving for a work site, the loss of a game by his favorite hockey team, his health or his personal safety, and new things or changes in his routine. He would be less communicative when stressed.

Shawn had experienced anxiety and confusion at school when his class was being taught living skills for transition into group home living, and which he interpreted to mean that he was going to be put in a group home. He was unable to comprehend that these lessons not intended for him but were for the benefit others in his class who would transition to group homes.

Ultimately, due to his continued anxiety over this issue, his parents took him out of school, got a psychological assessment and then transferred him to another school that had a program better suited to his needs. [ 140 ] After high school it was anticipated he would attend the Relax Crew at Parkland Class a few times each week, to participate in courses and activities for cognitively and physically disabled persons.

Shawn was never expected to hold gainful employment. [ 141 ] A 1993 speech-language pathology report (Exhibit 1, Book 3, Tab 14) reported that at age seven, Shawn’s articulation skills were well within the normal range and his speech was fully intelligible. [ 142 ] In November 2000, when Shawn was 14, a psychological assessment report (Exhibit 1, Book 3, Tab 22, pg. 01264) reported Shawn scored as moderately mentally disabled, with deficits in attention and concentration abilities, and significant cognitive delays and speech difficulties, making learning difficult for him. [ 143 ] A 2001 behavioral management report was requisitioned to assist classroom teachers with strategies to address Shawn’s anxiety caused by unfamiliar or unpredictable changes in his

schedule or routine, tests, discipline, and possible threats to his physical safety. This report noted that Shawn would often be very anxious, upset, draw incorrect conclusions, be unreasonable or illogical, and become tense, shake and cry. His speech was noted to be difficult to understand at times.

[ 144 ] In May 2003, Shawn was referred by Dr. Aggarwal to Regional Mental Health Services (Exhibit 1, Book 2, Tab 4, p. 825) because he was depressed about issues at school. The referral report noted, Shawn was preoccupied with death, diagnosed with a depressed mood, and was depressed about talk at school about what would happen when he turned 18. During this assessment, his mother noted the following physical changes prior to referral: sleep, mood changes and feeling helpless.

His mother’s explanation regarding the reported preoccupation with death, was that Shawn was afraid his parents would die and he would have to go to a group home. Mrs. Gallant’s evidence was that Shawn’s anxiety ended when he changed schools in September 2003. [ 145 ] In June 2003, Dr. Aggarwal referred Shawn to Dr.

Jensen, who did a psychological assessment, and reported that Shawn was observed to have five out of seven symptoms for a low grade form of depression. [ 146 ] I accept, from the evidence of his parents, sister, family friend and the February 2006 letter from a high school teacher (Exhibit 1, Book 3, Tab 22, p. 01231), that prior to dental surgery Shawn was a respectful, and generally verbally outgoing person, who had a sense of humor and loved pizza, TV, sports and was able to remember sports statistics. [ 147 ] I also accept that while Shawn’s family and friends had no trouble understanding him, those who were new to Shawn reported difficulty understanding him.

I also find that he experienced anxiety and would dwell or worry about things that stressed him. At times, he would become anxious, upset, draw incorrect conclusions, become illogical or unreasonable and be difficult to understand. 2. Post dental surgery behavior [ 148 ] Shawn’s family and friends identified a change in Shawn’s personality and behaviour after he had dental surgery on September 24, 2004. [ 149 ] Mrs.

Gallant gave evidence that after the dental surgery, Shawn no longer initiated or engaged in conversation, or related his needs, and when he did talk, it was often nonsensical, in circles or a repetition of what he had heard others saying. She reported that Shawn called himself a baby, and that they had to be careful to no longer refer to him even endearingly as “baby.” [ 150 ] Medical professionals who saw Shawn after surgery reported him talking and properly describing his history. Psychiatrists who interviewed him did not report his dialogue as being nonsensical or out of context.

Shawn was reported to talk about his personality change and his belief that his life was ruined when he got dental surgery. However, the medical records from Hillsborough Hospital in late 2005 also reported Shawn saying nonsensical things like the day staff were going to kill him, and that his family were drug dealers . [ 151 ] Mrs. Gallant reported that after surgery Shawn no longer cooperated with dressing, was disinterested in television, sports or games, and would ask to be fed only minutes after eating a meal. While Mrs.

Gallant described his operation of his power wheelchair as only driving in circles, his father described it as driving aimlessly from room to room. Mrs. Gallant’s evidence was that Shawn required a calm environment, because otherwise he would get “overstimulated” and become physically aggressive, and, at times, bite or curse. [ 152 ] Mrs. Gallant reported that Shawn no longer had an appetite or food likes or dislikes, to the extent that at one point in 2005 he was hospitalized due to his failure to eat or drink for a number of days. Mrs.

Gallant, his current caregiver, and the future needs assessor all described Shawn as currently experiencing extended periods of rigid seizure-like behaviour that was accompanied with excessive sweating, which significantly increased his care needs because he now requires 24/7 supervision and care. [ 153 ] As a result of these identified changes in his behavior and personality, Shawn’s parents took Shawn to see and be assessed by many medical professionals in an effort to identify the root of the problem and to try and restore Shawn to his previous state. 3. Post-Surgery Medical care, Reports and Assessments

[ 154 ] Dr. Mulder, who was Shawn’s general physician until October 2005, gave evidence that communication with Shawn was always limited, but Shawn could answer questions and Mrs. Gallant would fill in the details. [ 155 ] Dr. Mulder saw Shawn three times in a one week period in early February 2005 due to Mrs. Gallant reporting that Shawn was acting ou

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