2013 QCCA 920, 2013 QCCA 920

Unofficial English Translation Lévesque c. Hudon 2013 QCCA 920 COURT OF APPEAL CANADA PROVINCE OF QUÉBEC QUÉBEC REGISTRY No. 200-09-007222-109 (200-05-016496-023) DATE: May 22, 2013 CORAM: THE HONOURABLE FRANCE THIBAULT, J.A. BENOÎT MORIN, J.A. JACQUES DUFRESNE, J.A. JEAN-MARIE LÉVESQUE APPELLANT – INCIDENTAL RESPONDENT – defendant v.

GHISLAIN HUDON, personally and in his capacity as tutor to his minor children, Raphaël Hudon, Jérémy Hudon and Gabriel Hudon RESPONDENT – INCIDENTAL APPELLANT – plaintiff and SANDRA BERGERON, personally and in her capacity as tutor to her minor children, Raphaël Hudon, Jérémy Hudon and Gabriel Hudon RESPONDENT – INCIDENTAL APPELLANT – plaintiff JUDGMENT [ 1 ] The appellant, Dr.

Jean-Marie Lévesque, appeals from a judgment of the Superior Court, District of Quebec City (the Honourable Madam Justice Alicia Soldevila), rendered on September 14, 2010, and corrected on September 24, October 14, and November 3, 2010. [1] [ 2 ] The trial judge allowed in part an action by the respondents against the appellant and ordered the appellant to pay them 42% of the value of the damage they sustained. [ 3 ] In his main appeal, the appellant appeals from that conviction handed down against him. [ 4 ] In their incidental appeal, the respondents ask that the appellant be ordered to pay 100% instead of 42% of the value of the damage they sustained. [ 5 ] For the reasons of Morin, J.A., with which Thibault and Dufresne, JJ.A. agree, the Court : [ 6 ] ALLOWS the main appeal, without costs; [ 7 ] QUASHES in part the trial judgment, dismissing the action against Dr.

Jean-Marie Lévesque, without costs; [ 8 ] DISMISSES the incidental appeal, without costs. FRANCE THIBAULT, J.A. BENOÎT MORIN, J.A. JACQUES DUFRESNE, J.A. Mtre Robert-Jean Chénier Mtre David Emmanuel Roberge McCARTHY, TÉTRAULT

For the appellant – incidental respondent Mtre Marc Boulanger TREMBLAY, BOIS, MIGNAULT, LEMAY Mtre Stéphane Rochette, consulting attorney For the respondents – incidental appellants Date of hearing: February 28, 2013 REASONS OF MORIN, J.A. [ 9 ] The appellant appeals from a judgment of the Superior Court, District of Quebec City (the Honourable Madam Justice Alicia Soldevila), rendered on September 14, 2010, and corrected on September 24, October 14 and November 3, 2010. [2] [ 10 ] The respondents also bring an incidental appeal against that judgment. [ 11 ] The judge allowed in part an action by the respondents for medical and hospital liability.

First, she found the appellant, Dr. Jean- Marie Lévesque, liable and ordered him to pay 42% of the value of the damage sustained by the respondents; the main appeal and the incidental appeal in this case concern that decision. Second, she dismissed the action against Dr. Réjean Cloutier, Dr. Louis Carpentier, and the Hôpital du Saint-Sacrement; that decision is the subject of a distinct appeal (file 200-09-007236-109), which is dealt with separately. The facts [ 12 ] In July 1985, the respondent Ghislain Hudon (Hudon) injured his right knee. About a month later, on August 7, 1985, he consulted Dr.

Réjean Cloutier (Dr. Cloutier) about the injury. Dr. Cloutier diagnosed a tear of the medial meniscus requiring surgery. [ 13 ] At the same time, Dr. Cloutier discovered that Hudon had asymptomatic thrombocytopenia, that is, a low level of blood platelets, which requires certain precautionary measures, such as the taking of cortisone before an operation. On April 7, 1986, after a few months’ wait, Dr. Cloutier performed a meniscectomy using arthroscopic surgery. [ 14 ] Unfortunately, on October 27, 1998, while working as a day labourer, Mr. Hudon injured his right knee again when getting out of a truck.

A few days later, Dr. Cloutier saw him at the Hôpital du Saint-Sacrement and scheduled an appointment for simple arthroscopic surgery to assess the condition of his knee. [ 15 ] On November 16, 1998, Dr. Cloutier diagnosed a tear in the anterior cruciate ligament and a tear in the medial meniscus of the right knee. [ 16 ] Subsequently, on January 11, 1999, Mr. Hudon was operated on by Dr. Cloutier, who performed arthroscopic surgery to reconstruct the anterior cruciate ligament with patellar tendons. Mr.

Hudon was discharged from the Centre hospitalier Paul-Gilbert the next day. [ 17 ] On January 21, 1999, this time at the Hôpital du Saint-Sacrement, Dr. Cloutier saw Mr. Hudon for an initial post-operative consultation. During this examination, which Dr. Cloutier considered routine, he noted edema and ankylosis. Mr. Hudon was prescribed physiotherapy and an orthesis. In addition, an appointment was scheduled for the following month. Dr. Cloutier noted a slight bloody discharge from the wound when the nurse removed the staples from the knee. He states that this was not abnormal. [ 18 ] On January 23, 1999, Mr.

Hudon consulted Dr. Jacinthe Hivon (Dr. Hivon) at the Clinique médicale de Saint-Étienne. In her consultation note, Dr. Hivon mentioned that Mr. Hudon’s knee was very swollen, but he had no fever. She also noted a bloody discharge. Nonetheless, she was unable to diagnose septic arthritis, since not all of the symptoms were apparent. She therefore ordered a consultation at the emergency clinic of the Hôpital du Saint-Sacrement to investigate further.

In the consultation request to the physician at the hospital, she wrote the following: [ translation ] “Pain in knee + discharge + recent swelling + T o (temperature) 101.102 X 5 days, septic arthritis of the knee? Thank you”. [3] [ 19 ] Later in the day, Mr. Hudon went to the Hôpital du Saint-Sacrement. Dr. Louis Carpentier (Dr. Carpentier) and the medical resident Dr. Trien Vu (Resident Vu) took charge of him. It appears that Resident Vu took a sample from the wound and a blood sample. [4] In the consultation notes, it was indicated that there was no manifestation of septic arthritis. [ 20 ] Dr.

Carpentier says that the sample was taken from the wound as a preventive measure and that the wound was not infected. Furthermore, Resident Vu filled out a requisition form for a laboratory test of the sample. On it, a stamp indicated that the requisition was a [ translation ] “MINOR EMERGENCY”. The resident failed, however, to indicate the name of the attending physician on the form. [5] [ 21 ] On January 27, 1999, the results of the wound culture became available. Because of the omission on the requisition form, however, the results were not sent to Dr. Carpentier. [ 22 ] Two days later, Mr.

Hudon consulted his family physician, Dr. Jean Rouiller (Dr. Rouiller), at the Clinique médicale de Saint- Étienne. No symptom suggesting septic arthritis was observed at that time. Accordingly, the wound was simply disinfected, ointment

was applied, and the bandage was changed. Dr. Rouiller also told the patient to return to see him. [ 23 ] Unfortunately, on January 31, 1999, Dr. Cloutier fractured his leg in a skiing accident. [ 24 ] On February 5, 1999, because the discharge from his knee had not stopped, Mr. Hudon went to the Centre hospitalier Paul- Gilbert. He saw Dr. Guylaine Fortier (Dr. Fortier) there. After examining the patient, Dr. Fortier concluded that there was no intra- articular effusion and that Mr. Hudon’s pain was normal. Nevertheless, she felt it was necessary to swab the wound for a culture.

Even before she obtained the results, she prescribed an oral antibiotic for Mr. Hudon as a precautionary measure. [ 25 ] On February 8, 1999, Mr. Hudon went to the Hôpital du Saint-Sacrement for his second post-operative appointment. Dr. Jean- Marie Lévesque (Dr. Lévesque), replacing Dr. Cloutier, examined him. During that appointment, Dr. Lévesque was informed of the results from the wound samples obtained on January 27. They indicated a positive bacterial result for Staphylococcus aureus . [6] In light of the facts before him, Dr.

Lévesque advised the patient to continue to take the antibiotics he had been prescribed a few days earlier by Dr. Fortier. Although he noted the presence of [ translation ] “mild effusion”, Dr. Lévesque did not believe it was necessary to pursue the investigation concerning possible septic arthritis. [ 26 ] The next day, February 9, 1999, Mr. Hudon saw a physiotherapist, who noted that he had great difficulty moving his leg. She also observed swelling in his knee and edema. Later in the day, Mr. Hudon consulted Dr. Rouiller. Alarmed by the patient’s condition, Dr.

Rouiller gave him an emergency referral to the orthopedic department of the Hôpital Hôtel-Dieu de Lévis. [ 27 ] On February 10, 1999, Mr. Hudon went to the Hôpital de l'Enfant-Jésus de Québec. A medical resident and Dr. Pierre Lavallée (Dr. Lavallé

e) took charge of him. After examining Mr. Hudon, Dr. Lavallée assumed that he had septic arthritis and scheduled emergency surgery for the next day, February 11, 1999, to clean out the knee and take sterile cultures. The diagnosis was later confirmed by an infectiology consultant. [ 28 ] During the surgery on February 11, 1999, two samples were taken that revealed the presence of Staphylococcus aureus bacteria. It is claimed that at least one of the two samples was taken from the intra-articular fluid. [7] [ 29 ] Subsequently, on November 24, 1999, Dr.

Cloutier performed arthroscopic surgery and adherence lysis and arrived at a diagnosis of arthrofibrosis of the right knee. [ 30 ] On June 7, 2000, Dr. Cloutier performed an arthrotomy with arthrolysis of the right knee in connection with the diagnosis of arthrofibrosis. [ 31 ] In the months that followed, Mr. Hudon had a regular follow-up with Dr. Cloutier. Although some improvement was noted, progress unfortunately did not continue. On December 6, 2001, Dr. Cloutier saw Mr.

Hudon for a consultation for the last time at the Hôpital du Saint-Sacrement. [ 32 ] On February 8, 2002, the respondents instituted their action. Judgment appealed from [ 33 ] First, the judge identified the alleged faults of Dr. Cloutier, Dr. Carpentier, Dr. Lévesque, and the Hôpital du Saint-Sacrement. [ 34 ] Drs. Cloutier and Carpentier were blamed for lack of follow-up, particularly regarding the wound culture seen to by Resident Vu.

In addition, it was alleged that the Hôpital du Saint-Sacrement did not take steps to find the attending physician responsible for the poorly identified sample. [ 35 ] Furthermore, the respondents blamed Dr. Lévesque for failing to provide the appropriate care for Mr. Hudon’s health by treating the infection as if it were superficial. [ 36 ] After describing the positions of the physicians and the hospital, the judge outlined the entire factual background admitted by the parties.

She then explained the issues in dispute. [ 37 ] Essentially, the judge had to assess the impact of the results of the analysis of the wound culture collected by Dr. Carpentier on January 23, 1999, which led to the diagnosis of septic arthritis. Furthermore, she was required to determine whether Dr. Cloutier had committed a fault in the post-surgical follow-up. Lastly, her task was to establish whether Dr. Lévesque’s February 8, 1999, examination was performed according to good practice. [ 38 ] To assess the conduct of the physicians who treated Mr.

Hudon, the judge identified, on a balance of probabilities, the symptoms of the clinical picture of a patient with septic arthritis: [ translation ] • Diffuse and persistent pain in the knee; • Local redness; • Local and generally persistent heat; • Edema; • Intra-articular effusion (fluid inside the joint);

• Limited movement and painful mobilization; • An increase in white blood cells (leukocytosis); • Possible fever, but more probable when the infectious condition is not treated for a long period of time; • Purulent discharge present in certain cases. [8] [ 39 ] The judge pointed out that septic arthritis is primarily diagnosed upon clinical examination of the patient and that a general practitioner is able to make such a diagnosis when certain predominant signs are present. [ 40 ] In addition, the judge deemed that a prudent and diligent orthopedic surgeon would not perform an intra-articular aspiration unless there was intra-articular effusion, since that intervention carries risks. [ 41 ] Accordingly, the judge immediately rejected the testimony of Dr.

Godin, an expert for the plaintiff, since he was the only one who affirmed that he would have performed an aspiration of Mr. Hudon’s knee as early as January 23, a statement that diverged from the testimony of all of the other physicians heard, both for the plaintiff and for the defendant. [ 42 ] Furthermore, she accepted that the culture of a superficial wound that was positive for the Staphylococcus aureus ++++ bacteria did not demonstrate the presence of an intra-articular infection or even a skin infection if the other clinical signs were not observed.

The results must be correlated by the physician before any diagnosis is possible. Conversely, the judge underscored that the result of the analysis of the intra-articular fluid allowed a diagnosis to be made immediately. [ 43 ] Next, the judge analyzed each of Mr. Hudon’s visits to the hospital to determine the exact moment when a prudent and diligent physician would have been able to make a diagnosis of septic arthritis. [ 44 ] First of all, the judge found that no expert physician had established that the first post-operative appointment with Dr.

Cloutier on January 21, 1999, was not according to good practice. [ 45 ] What is more, the judge noted that Dr. Hivon, whom the patient saw during the night of January 22 to 23, considered the diagnosis of septic arthritis and wanted to rule out the possibility by recommending that the patient go to the emergency clinic of the Hôpital du Saint-Sacrement. [ 46 ] The judge then related Mr. Hudon’s visit to that hospital later in the day. There, he was examined by Resident Vu and Dr. Carpentier.

She explained that the diagnosis of septic arthritis was rejected because the results of the complete blood count showed no anomaly. She added that the wound culture was analyzed as a precautionary measure and routinely. Upon analyzing the evidence, the judge concluded that it was Resident Vu who collected the sample from the wound for the culture, filled out the laboratory test requisition, and failed to enter Dr. Carpentier’s name. In fact, Dr. Lévesque was the first to learn of the results of the culture. [ 47 ] Accordingly, the judge found that, had the requisition been filled out properly by Resident Vu, Dr.

Carpentier would have been informed of the results on January 28, 1999. The judge concluded that he would then have referred Mr. Hudon to his orthopedic surgeon. [ 48 ] Nonetheless, the judge did not find it useful to draw negative inferences from the conduct of the hospital in its handling of the results of the wound culture test. In her view, the evidence in fact showed that the results would not have firmly established the diagnosis of septic arthritis. Considering Mr.

Hudon’s condition between January 23 and 28, the judge determined that the symptoms would have required follow-up the next week, which would have resulted in Mr. Hudon being seen again on or about February 5. She also found that, on the facts, he was seen on February 4 by a physiotherapist, Annie Marier, and went to the emergency clinic of the Centre hospitalier Paul-Gilbert on February 5. [ 49 ] Next, the judge considered Mr. Hudon’s condition when he went to the emergency clinic on February 5. She noted that the clinical signs observed by Dr.

Fortier indicated that there was no intra-articular effusion and that the pain was normal. The judge gave much credence to Dr. Fortier’s testimony. She therefore concluded that, on that date, Mr. Hudon had no clinical symptoms of septic arthritis. [ 50 ] In addition, the judge analyzed the second post-operative follow-up by Dr. Lévesque, who replaced Dr. Cloutier. Among the symptoms observed, Dr. Lévesque noted mild effusion in the knee, although this symptom did not change his diagnosis of a superinfected wound.

The judge found, however, that the presence of effusion was one of the symptoms that should alert a physician to the presence of an intra-articular infection. [ 51 ] The judge went on to note that Dr. Rouiller was alarmed by his patient’s condition on February 9, 1999, and gave him an emergency referral to the orthopedic department of the Hôtel-Dieu de Lévis. [ 52 ] She stated that, on February 10, a diagnosis of septic arthritis was made by Dr. Lavallée and a medical resident.

It was confirmed by an infectiologist. [ 53 ] Summarizing the situation, the judge indicated that, as it was acknowledged that the diagnosis was made on February 10, 1999, she was required to analyze the symptoms present between January 28 and February 8 to ascertain the liability of the attending physicians. [ 54 ] The judge weighed the testimony and expert reports submitted by the parties. In her detailed assessment, she accepted and rejected certain segments of the expert reports. She concluded that Dr.

Lévesque should have suspected septic arthritis when he noted the presence of an infected wound, effusion and major delay in mobility several weeks after the operation. Therefore, he had the duty to aspirate Mr. Hudon’s knee or at least see him again the next morning. She felt that such a procedure would have led to emergency

surgery on February 8 or 9. She concluded that treatment of an intra-articular infection is more effective within 48 hours of the infection. Furthermore, the judge noted that the septic arthritis probably caused Mr. Hudon’s arthrofibrosis and arthritis. [ 55 ] Ultimately, the judge rejected the liability of both Dr. Cloutier and Dr. Carpentier because she concluded that the septic arthritis developed around February 8, 1999.

As for the Hôpital du Saint-Sacrement, she found that it committed a fault in not trying to find the attending physician who ordered the laboratory work on January 23, 1999.In the absence of a causal link, however, it was not found to be liable. As for Dr.

Lévesque, the judge found that he departed from the medical conduct expected of an orthopedic surgeon by failing to perform an aspiration of the knee during the consultation of February 8, 1999, or at the very least by failing to see the patient again the next day. [ 56 ] Using an approximate mathematical formula, the judge established that the respondents were entitled to 42% of the value of the damage they sustained. Lastly, she decided that, to assess his income losses, the calculations should be based on Mr. Hudon’s gross income .

Issues in dispute [ 57 ] The appellant submits the following questions for consideration: 1. Did the appellant act in accordance with good practice in his consultation with the respondent on February 8, 1999? 2. Is there a causal link between the appellant’s conduct on February 8, 1999, and the respondent’s sequelae? 3. In the alternative, should the respondent’s salary losses be calculated on the basis of his gross or net income? [ 58 ] In the factum for their incidental appeal, the respondents raise the following question: 4.

Did the trial judge err by attributing 42% of the value of the damage to the respondents? Analysis 1. Did the appellant act in accordance with good practice in his consultation with the respondent on February 8, 1999? [ 59 ] The appellant contends that the trial judge committed an overriding error in basing her ruling on a personal opinion that he should have performed an intra-articular aspiration on February 8, 1999. According to him, good practice did not require him to do so, even in the presence of mild effusion.

What is more, he affirms that the decision to perform an aspiration falls to the judgment of the clinician, who must take into consideration the associated risks and benefits. In the presence of a [ translation ] “superficial superinfection”, it was in fact preferable to avoid the risk of contaminating the wound through an intra-articular aspiration. [ 60 ] In addition, he points out that the experts are of the opinion that it was appropriate to see his patient again in 24 to 48 hours, and Mr.

Hudon was, in fact, seen on February 10 by another orthopedist. [ 61 ] The appellant criticizes the judge for assessing his conduct [ translation ] “in hindsight”. The evidence shows, on a balance of probabilities, that the first clinical signs of Mr. Hudon’s septic arthritis appeared on February 9, 2009.

The judge therefore erred by considering clinical elements that were present only on February 9 and 10, 1999, thereby presenting the February 8 diagnosis in a different light. [ 62 ] The appellant affirms that the judge also erred by finding that an intra-articular aspiration done on February 8 would have led to emergency surgery. The appellant points out that Dr. Lavallée did not perform this procedure before scheduling surgery for the next day. [ 63 ] The respondents contend that the appellant has not demonstrated that the judge committed a palpable and overriding error within the meaning of Housen v .

Nikolaisen . [ 64 ] According to them, the judge’s conclusions regarding the appellant’s liability were reasonable and well supported by the evidence. * * * [ 65 ] A reading of the testimony of the experts and the voluminous evidence reveals the complex, arduous work of a trial judge, particularly in a medical liability case.

The judge is responsible for reconciling the various expert opinions and identifying the applicable legal principles to apply them ultimately to a factual framework that he or she has gradually pieced together over the course of the hearing. [ 66 ] This task is carried out as the trial progresses, during which time the judge has the opportunity to hear each of the witnesses, to gauge their credibility and, above all, to question them to confirm his or her understanding of the various concepts described. [ 67 ] Thus, the trial judge is in the best position to assess, interpret and correlate the facts.

In this respect, it is appropriate to cite an excerpt from a recent ruling of the Court of Appeal: [ translation ]

[4] In both the main appeal and the incidental appeal, the parties were required to demonstrate that the conclusions in the trial judgment contained a palpable and overriding error. An appeal, it should be pointed out, is not an opportunity to retry the case. This was underscored by this Court in Regroupement des CHSLD Christ-Roy : [ translation ] [55] When evidence of some complexity is open to

interpretation and requires the trial judge to make an individual assessment and then a more comprehensive assessment of many elements, some of which are divergent and contradictory, it is not enough to select, for the purpose of the appeal, everything that could have been interpreted differently and to exclude all the rest, in order to reiterate a theory earlier deemed unfounded by the judge who presided over the trial .

An error in determining a fact in dispute is palpable only if its obvious or flagrant nature is clear from the re-examination of the relevant part of the evidence and a different conclusion on that fact in dispute logically comes to mind. An error is overriding only if it deprives the judgment appealed from of a necessary foundation in fact , thereby distorting the disposition of the decision rendered in first instance and, for that reason, requiring its reversal. . . . [9] [Emphasis added.] [ 68 ] In the same vein, the comments of Morissette, J.A. in P.L. v .

Benchetrit eloquently explain the respective roles of the trial judge and a court of appeal judge: [ translation ] . While not wrong, that answer is nevertheless ambiguous and incomplete. [ translation ] “To study the record” does not mean to retry the case . In the area of fact, the respective roles of a trial court and an appellate court are largely dictated by institutional considerations.

A trial judge, as everyone knows, has the advantage of examining the documentary or physical evidence, seeing and hearing the witnesses, and being present for the linear unfolding of the evidence at the rate at which it is adduced by the parties . An appellate judge has the advantage of being seized of a case long before the hearing, which case, in theory, already contains all of the evidence, or at least everything relevant to the appeal.

The appellate judge can therefore immediately ask the attorneys for clarifications regarding the content of the record and, since the appellate judge is working with the transcript of the testimony (which is rarely the case at trial), he or she can cross check to highlight the contradictory or divergent information, found in nearly all litigious matters.

But the appellate judge does not see or hear the witnesses and, above all, the time constraints imposed by the appellate judge’s duties do not allow him or her to redo what is expected of a trial judge, that is, to perform a detailed examination of the evidence at the pace at which it was presented by the parties at trial. Except for those cases where there is no room for doubt, the appellate judge is in a poor position to reassess the credibility of the witnesses . He or she also has to count on the assistance of counsel to identify and assess the alleged errors of fact relied on by a party.

It follows from this that no purpose is served on appeal by affirming, without being more specific, that a finding of fact [ translation ] “is contrary to the whole of the evidence” . And claiming that something is “palpable” does not make it so. In my view, this is how we must understand what Fish J. was saying when he wrote the following in H.L. v. Canada (Attorney General ): The “palpable and overriding error” standard, apart from its resonance, . . . helps to emphasize that one must be able to “put one’s finger on” the crucial flaw, fallacy or mistake.

In the words of Vancise J.A., “[t]he appellate court must be certain that the trial judge erred and must be able to identify with certainty the critical error” ( Tanel , at p. 223, dissenting, though not on this issue). To “put one’s finger on” means something other than inviting the Court to take a broad look at all the evidence : it means to direct its attention toward a determined point where an unequivocal evidentiary element is quite simply an obstacle to the impugned finding of fact.

If that finding of fact, which has, in that way, been shown to be clearly wrong, sufficiently compromises the disposition of the judgment, then the error will be regarded as determinative and will justify reversing the judgment. [10] [Emphasis added.] [ 69 ] Lastly, deference must be shown toward the credibility accorded not only to ordinary witnesses but also to expert witnesses. [11] [ 70 ] Indeed, it is important to stress that this case is essentially factual and rests, to a great extent, on the credibility the trial judge accorded the parties that largely underlies her perceptions.

In Stoneham and Tewkesbury v . Ouellet , Beetz J. affirmed that the opinion of the trial judge regarding the credibility of the witnesses is just about untouchable, especially when the judge provides the reasons for setting aside testimony. [12] [ 71 ] In this case, the appellant claims that the judge based her ruling on a personal opinion when she concluded that he should have

performed an intra-articular aspiration on February 8, 1999. It is useful to cite the excerpts from the judgment to which the appellant refers in his statement: [ translation ] [154] In the Court’s opinion, during Dr. Lévesque’s examination, he noted effusion in Mr. Hudon’s knee, an infection in the wound and a major delay in mobility at four weeks after the operation. This, associated with the serious pain expressed by Mr. Hudon, should have led Dr. Lévesque to suspect septic arthritis, since there were a number of the classic clinical elements of the intra-articular infectious process.

Good practice thus required that Dr. Lévesque aspirate the joint or at least see his patient again the next morning . In both cases, the preliminary result of an aspiration performed on February 8 or 9 would have led to emergency surgery on Mr. Hudon’s knee. All the physicians heard have confirmed that a preliminary emergency result of an articular aspiration can be obtained in 15 to 20 minutes by asking the laboratory for a Gram staining test . [155] The initial opinion of Dr. Desnoyers in his report of April 11, 2007, regarding Dr.

Lévesque’s conduct, whereby the latter’s diagnosis of a [ translation ] “superficial infection at the wound” was “defensible” does not hold water once Dr. Lévesque honestly acknowledged that he had noted effusion in Mr. Hudon’s knee on February 8 , especially considering the serious pain Mr. Hudon expressed on that date, which was adduced in evidence before the Court. [156] It should be borne in mind that, according to Dr. Desnoyers, treatment of an intra-articular infection is most effective within a period of forty-eight (48) hours . [157] Concerning Mr. Hudon’s sequelae, Dr. Desnoyers agrees with Dr.

Lenczner’s statement that the arthrofibrosis caused the arthritis by choking off the joint, because the joint deteriorates when it is not nourished. He adds, however, that arthrofibrosis can occur without the presence of an infection and can possibly lead to the same result. Hence, according to him, Mr. Hudon’s sequelae were the result of very serious and accelerated arthrofibrosis of the joint that developed in front of the anterior cruciate tendon. [158] In short, the parties agree that the failure of Dr. Lévesque to intervene on February 9 delayed Mr. Hudon’s treatment by at least 48 hours .

The Court considers this delay to have been a fault and it will return to the question as to whether the delay had an impact on the sequelae from which Mr. Hudon suffers. . . . [209] The Court considers that Dr. Lévesque departed from the medical conduct expected of an orthopedic surgeon in his examination of February 8, 1999. His examination was brief and, whereas a number of Mr. Hudon’s signs and symptoms on February 8, 1999, should have led Dr. Lévesque to see Mr.

Hudon again the next morning according to the defence experts, or 48 hours later according to other experts, the Court is instead of the opinion that the evidence shows that he should have performed an intra-articular aspiration that same day . His failure deprived the plaintiff of treatment in the first 48 hours, the effectiveness of which is acknowledged by all the physicians heard.

Treatment of septic arthritis must begin within that [ translation ] “ideal window” that ensures the best success of the treatment once the classic symptoms are clinically discernable. [Emphasis added.] [ 72 ] During the hearing, the judge had the opportunity to hear seven expert physicians who guided her in her assessment of the facts. [13] Some criticized the appellant for not intervening on February 8, 1999. [ 73 ] Even Dr. Desnoyers, the appellant’s expert, told the Court that Mr. Hudon’s clinical picture should have attracted Dr. Lévesque’s attention: [ translation ] In a context where Mr.

Hudon did not have any effusion on the fifth (5th), where none was clearly described in the record and where, specifically, it was written, on the fifth (5th), there was none, the eighth (8th), in my opinion, was when an alarm began to sound . [14] [Emphasis added.] [ 74 ] The witness Dr. Lavallée agreed, since he considered that effusion of the knee is one of the main criteria in diagnosing septic

arthritis. [ 75 ] In short, the judge correctly weighed all the expert testimony to arrive at an opinion based on the evidence. In any event, she did not have to justify all her reasons with the expert opinions and exhibits. The Court of Appeal stated as much in Rouillard v .

St-Martin : [ translation ] The trial judge also need not be bound by expert testimony and is not obliged to justify in that regard why he or she accepts one piece of evidence or rejects another, especially when, as in this case, the expert evidence is contradictory . [15] [Emphasis added.] [ 76 ] Ultimately, I am of the opinion that the appellant did not succeed in identifying a palpable and overriding error in the judge’s analysis that would justify the intervention of the Court with respect to the first question. [16] 2.

Is there a causal link between the appellant’s conduct on February 8, 1999, and the respondent’s sequelae? [ 77 ] The appellant is of the opinion that the causal link cannot be based on theories or conjecture, although it can be established by presumption. He believes that the judge erred by drawing an inference of causation from his conduct, whereas the evidence did not show on a balance of probabilities that a delay of 48 hours caused Mr. Hudon’s sequelae.

Thus, the appellant contends that the judge awarded compensation for “loss of chance”. [ 78 ] The appellant argues that the simple general affirmation that [ translation ] “every day counts” is not legally sufficient to establish a causal link regarding a delay of 24 or 48 hours. He affirms that the expert evidence of both the plaintiff and the defendant indicates that, although it is preferable to treat the infection promptly, a [ translation ] “golden period” during which the treatment is effective can, according to Dr.

Godin’s testimony, extend for up to six or seven days. [ 79 ] The appellant also contends that Dr. Lavallée’s surgical observations confirm that the septic arthritis was treated rapidly, since they indicate that the infection was at [ translation ] “Stage 1, the beginning of Stage 2” according to the Gächter classification, which consists of four stages. He claimed that this element is inconsistent with the presumption that the judge applied and constitutes an obstacle to the inference of causation that the judge accepted. [ 80 ] Furthermore, the appellant criticizes the judge for not explaining why Mr.

Hudon would have been among the 70% of patients with no sequelae from an intra-articular infection. [ 81 ] The respondents, for their part, contend that the evidence showed on a balance of probabilities that the appellant’s fault was decisive in that the judge estimated that the probability of complete recovery was 60%. [ 82 ] They are of the opinion that the judge’s conclusions were reasonable and supported by the evidence. * * * [ 83 ] For the purpose of this analysis, it is useful to cite the excerpts from the judgment dealing with the causal link: [ translation ] [211] Dr.

Godin stated that 70% of those treated within six to seven days of the onset of septic arthritis in the knee do not have any sequelae . Furthermore, the scientific medical literature submitted or commented on by Dr. Desnoyers confirms that the first 48 hours of treatment are crucial . All the physicians heard agree that [ translation ] “every day counts”. We know that Mr.

Hudon was treated after four days , i.e. after 96 hours. [212] The Court concludes that, in light of the evidence, the plaintiff must benefit from a presumption of causation or an inference that his reported sequelae would have been less serious if he had been treated on February 8 or 9, as care in keeping with good practice would have ensured. The Court deals with this issue in point 9 of this judgment, at paragraphs 83 to 85 . [213] The Court believes that an equation should be established that, although approximate as to the sequelae attributable to the delay in treatment, is based on the evidence adduced.

Considering that Mr. Hudon was deprived of the first 48 hours of treatment that are [ translation ] “crucial” to the success of the treatment and that what is [ translation ] “crucial” is [ translation ] “decisive”, [ translation ] “paramount” and even [ translation ] “determinative”, which can be expressed in percentage at a figure above 50%, the Court judges it to be 60%. Since the evidence shows that at first Mr.

Hudon had a 70% chance of having no sequelae after treatment if it was begun rapidly (according to the testimony of his own expert), he is entitled to be compensated for 42% of the value of that damage (60% X 70% = 42%) : [Emphasis added.]

[ 84 ] First, the Court notes that the judge concluded, on the basis of specific medical literature cited by Dr. Desnoyers, that the first 48 hours following the observation of septic arthritis were determinative in eradicating it. [ 85 ] What does the medical literature consulted by the judge say? [ 86 ] In paragraph 200 of the judgment, the judge cited as a source an

article entitled Septic knee arthritis following ACL reconstruction: a systematic review . [17] That text emphasizes that the objectives of the treatment of septic arthritis are to protect the joint cartilage and save the graft. It adds that, if the infection is not treated within seven days, the cartilage will lose 50% of its glucosamine and collagen. The

article states the following concerning intervention delays: It is believed that the early onset of therapy, infection with low virulence bacteria, graft retention and early physical therapy are essential for successful treatment. . . . A second patient, who received treatment 1 week after the onset of the infection, also required graft removal because of the impregnation by a thick purulent exudate resulting in general postinfectious cartilage thinning and residual pain.

The only patient infected with Staphylococcus aureus who did well, was diagnosed and treated early, almost 2 days after the clinical symptoms began . [Emphasis added.] [ 87 ] In light of the above passage, it is noted that the [ translation ] “literature” to which the judge referred actually concerns a single case drawn from a scientific study. No one doubts the fact that an infection must be treated as soon as possible, but the issue here is more concerned with the causal link between a delay of 48 hours and the development of arthrofibrosis and eventually arthritis. Of course, the patient referred to in the

article recovered well, but that in no way demonstrates that his state would have worsened if he had been treated two days later. [ 88 ] In fact, Dr. Desnoyers himself acknowledged the weakness of his [ translation ] “theory of the first 48 hours”: [ translation ] A. But, to me, it is clear that, as of the 9th, it was necessary to intervene and that, according to the literature submitted to us, the two-day period is a period of great protection, in the sense of great encouragement, to treat septic arthritis in the joint. Q. Two days? A. Yes. I can cite the literature to that effect….

I can cite the literature to that effect, and I …submit to you, Madam Justice, once again, that small figures are involved; therefore, I can accept the criticism, if one case or whatever is mentioned, but that is the literature we have . . . . What it says is that the only patient with staph aureus who had a good outcome was treated in two days.

And when we try to understand what that means, for them, [ translation ] “a good outcome” refers to the fact that, OK, he had . . . the infection was eradicated, but it is particularly that he was able to retain his graft . [18] [Emphasis added.] [ 89 ] Later on in his testimony he added the following: [ translation ]

A. Well usually, when the process is quite advanced, Madam Justice, the graft is going to be involved . The example I gave of the patient with staph aureus who was treated within two days, one of the criteria for a good outcome was that he was able to retain his graft , whereas, in the others, the graft unfortunately disappeared and the literature tells us that it is a little unfortunate, but the graft must be removed because it is often saturated. [19] [Emphasis added.] [ 90 ] In fact, for Dr. Desnoyers, the success of a treatment means, in particular, that the patient’s graft is retained.

In the case before us, Dr. Lavallée notes that Mr. Hudon’s knee was [ translation ] “not very messed up” and that his graft could be saved. [20] [ 91 ] On that subject, Dr. Vincent, to whom the judge attributed a very high degree of credibility, [21] noted the following: [ translation ] A. In my opinion, the septic arthritis had just begun, and he underwent surgery on the 11th. Even if the septic arthritis began on the 8th, there is a period of forty-eight (48) hours, that is a very early period before the surgeries .

We saw a minute ago, and it is in much of the literature, that early intervention is beneficial; an effort is made to intervene as early as possible, but if he was seen on the 8th, 9th, 10th or 11th, that was really a window very close to the start of the infection . This is a patient who was operated on seven (7) days later, eight (8) days later; that is a very early range and it corresponds to what we saw at the time of the surgery. No pea soup fluid as expected from an infection that had developed over several days. The fluid was sero-purulent, and that was at the onset of the infection.

The cartilage was normal, the synovial fluid was normal, the tendon, excuse me, the graft part was normal. There was no pus, no fibrous discharge and no impairment of the tendon, nothing pointing to staph aureus having progressed for a long period of time . [22] [Emphasis added.] [ 92 ] On the basis of this evidence, the judge decided to apply a presumption of causation according to which the consequences would have been less serious for Mr. Hudon if the appellant had intervened on February 8 or 9. In addition, citing Laferrière v .

Lawson , the judge rightly pointed out that causation need not be scientific but must be established on a balance of probabilities. [ 93 ] In light of the evidence before her, could the judge legally conclude that a presumption of causation should apply? [ 94 ] The judge determined that the evidence was sufficient to ground presumption that Mr. Hudon would have suffered less damage if he had been treated on February 8 or 9. More specifically, this presumption is based on the statement that [ translation ] “every day counts” when treating an infection. [ 95 ]

Article 2849 of the Civil Code of Québec provides that, for a presumption of fact to be accepted, it must be “serious, precise and concordant”. [ 96 ] The medical context does not change the burden of proof on a party. In St-Jean v . Mercier , Gonthier J. discussed presumptions of fact in such a context:

Article 2849 C.C.Q. provides that only serious, precise, and concordant presumptions are to be taken into consideration. These criteria were not fulfilled in this case. The evidence pointed in different and sometimes opposite directions.

Jutras, supra , at fn. 24, is correct in saying: [ translation ] “In cases where the expert evidence is disputed . . ., presumptions of fact are therefore of little use, since it will not be sufficient to assert that the fault is one of the possible causes.” The Court of Appeal appropriately said that it is insufficient to show that the defendant created a risk of harm and that the harm subsequently occurred within the ambit of the risk created.

To the extent that such a notion is a separate means of proof with a less stringent standard to satisfy, Snell , supra , and definitely Laferrière , supra , should have put an end to such attempts at circumventing the traditional rules of proof on the balance of probabilities . There may be a misapprehension of what I said in Laferrière , supra , at p. 609: “In some cases, where a fault presents a clear danger and where such a danger materializes, it may be reasonable to presume a causal link, unless there is a demonstration or indication to the contrary” (emphasis added).

This is merely a reiteration of the traditional approach on presumptions, and does not create another means of proof in Quebec civil law in the establishment of the causal link . The Court of Appeal correctly interpreted this passage as pertaining to presumptions within the traditional rules of causation. [23] [Emphasis added.] [ 97 ] It should also be noted that, with respect to the causal link, there must be no distinction made between a fault of commission or a fault of omission. [24]

[ 98 ] That said, an important passage in the study cited by the judge deserves mention. In it, the risks of developing arthritis following an intra-articular infection are identified: Similarly, in McAllister et al. study, despite the early onset of treatment, within 24 h after the onset of symptoms, 3 out of 4 patients infected with Staphylococcus aureus, developped osteoarthritis . On the other hand, in the previous study it was suggested that in order to retain the graft in the cases of infections with Staphylococcus aureus, the treatment must begin in the first 24 h.

Although it has been mentioned that the graft could serve as a nidus for infection, patients with retained graft have better clinical outcomes . Williams et al. reported on seven patients who had the graft retained at the initial wash out. Four of these patients had a repeat wash out 1 week later, with graft removal, because of persistent infection. About the 65% of the partients with graft removed experienced knee instability and were unable to participate in athletic activities.

In contrast, only 30% of patients with graft retained experienced knee instability and were unable to participate in athletic activites. . . . Osteoarthritis is more often developed after septic knee arthritis following ACL reconstruction with patellar tendon graft . Patients with patellar graft have 2.75 more possibilities to present degenerative changes than patients with hamstrings graft. In Schollin-Borg et al. study, patients with patellar graft achieved worse KOOS score than patients with hamstrings graft (73.33 vs 80.25, respectively), but without statistical significance.

Also patient's age is related to the number of procedures needed to eradicate the infection . In patients older than 25 years, 1.12 more procedures are needed to control infection when compared with younger than 25 years old patients. Besides, osteoarthritis develops in older patients . . . . . . . Complications after septic knee arthritis are postinfectious residual stiffness and arthrofibrosis or even articular cartilage degeneration and osteomyelitis and finally, graft failure or rupture – perhaps structurally weakened by the infection.

However, knee function after infection following ACL reconstruction, is impaired. The ability of patients to perform pain-free activities of daily living is likely. It is supported that a full return to athletic activities is less certain. In McAllister et al study the clinical outcome of the infected patients is reported to appear inferior to that of control subjects without infection. Similarly, Schollin-Borg et al. mentioned that each infected patient scored worse (in most cases) or equal to the noninfected group.

In contrast, Viola et al. stated that the patients with postoperative arthritis are similar to those of uncomplicated reconstructions . [25] [Emphasis added.] [ 99 ] In

summary, it appears from this passage that, according to a scientific study, three-quarters of the patients suffering from an infection who were treated within the first twenty-four hours nonetheless developed arthritis. At the same time, the risks of arthritis are greater when the patient undergoes reconstruction of the anterior cruciate ligament using a graft from the patellar tendon, as in Mr. Hudon’s case. What is more, the age of the patient also increases the risks of arthritis.

Lastly, this passage shows that the literature is not unanimous regarding the chances of developing complications further to an intra-articular infection. Indeed, the Viola study demonstrates that an equal number of patients with and without complications developed arthritis. [ 100 ] Therefore, the focus should not be placed on Mr. Hudon’s sequelae. Rather, the causal link must be analyzed on a balance of probabilities.

In that regard, authors Philips-Nootens, Lesage-Jarjoura and Kouri wrote the following: [ translation ] If the evidence does not convince the court that the damage is due to the physician’s fault, the action will be dismissed. Inferring fault from the sole fact that the intervention caused damage would be a misunderstanding of the role of the risks associated with the intervention and a transformation of the physician’s obligation of means into an obligation of result: as the Court of Appeal reaffirmed in Vigneault v . Mathieu , [ translation ] “it is not enough to prove the absence of result . . . .

The presumptions of fact must lead to the observation of the existence of a fault. The outcome of the intervention is not the only factor to consider ”. [26] [Emphasis added.] [ 101 ] In light of these teachings, I am of the opinion that the judge committed a palpable and overriding error by concluding that a presumption of fact regarding causation should apply in favour of the respondents. [27]

[ 102 ] In reality, the evidence shows that the infection was treated within a reasonable period of time and the virus was not given enough time to cause damage to the knee, as appears from Dr. Lavallée’s observations during the surgery of February 11, 1999. Moreover, the decisive impact of the appellant’s failure to act immediately is dubious. Mr. Hudon was operated on by Dr. Lavallée and he retained his graft. This fact means that the surgery was successfully completed, particularly since the septic arthritis was treated within [ translation ] “the golden period” of six to seven days to which Dr.

Godin referred. [ 103 ] Bear in mind that the first signs potentially implying the presence of septic arthritis appeared on February 8, 1999. If he had been diligent, Dr. Lévesque would have seen his patient again on February 9 and could have then scheduled an operation for February 10. In reality, the operation was performed on February 11, and the clinical signs observed establish that the infection was at its preliminary stage (Grade 1). [ 104 ] According to Dr. Godin’s golden period theory, which the judge accepted, Mr.

Hudon still had a 70% chance of not being left with sequelae further to the operation of February 11, 1999. [ 105 ] I conclude that the facts in the case are not sufficiently serious, precise and concordant for a presumption to be made. In fact, focusing attention solely on Mr.

Hudon’s complications is tantamount to compensating for loss of chance, and this theory has been officially repudiated by the Supreme Court. [28] [ 106 ] In their work, authors Philips-Nootens, Lesage-Jarjoura and Kouri define the theory of loss of chance: [ translation ] Attempts have been made to introduce the notion of “loss of chance” into medical liability in Quebec.

According to this theory, if the plaintiff cannot establish, on a balance of probabilities, that the physician’s fault was the cause of the damage sustained by the patient, it may nevertheless be alleged that, at the very least, the fault made the patient lose “a chance to heal”. Hence, it would be appropriate to attribute partial compensation, a necessarily arbitrary fraction of the harm sustained, be it death or worsening of the disease, for example.

Controversial in French law and rejected in English law after vacillation, this approach was ultimately rejected as well by the Supreme Court of Canada in Laferrière v . Lawson . . . . Medical liability is therefore not an exception to the general law and continues to require evidence of a causal link: this obligation cannot be circumvented through the expedient of a “loss of chance”. [29] [ 107 ] Nevertheless, this is the theory the trial judge applied, as appears from paragraph 213 of the judgment.

She used an erroneous presumption to determine that the appellant’s fault made the respondent lose 42% of his chance not to suffer any sequelae. Although some authors argue in favour of a lighter burden in cases of a fault of omission, the Court remains bound by the conclusions of the Supreme Court that the causal link must be proved on a balance of probabilities, regardless of the type of fault. [30] To decide otherwise would subject physicians to a separate liability regime. [31] [ 108 ] Ultimately, the theory of loss of chance cannot compensate for an absence of causation.

The judge’s conclusion concerning the causal link is therefore erroneous and justifies the intervention of the Court. [ 109 ] In light of this conclusion on the second question, there is no need to consider the third or fourth questions. Conclusion [ 110 ] For the reasons given above, I would allow the main appeal and quash the trial judgment in part by dismissing the action against Dr. Jean-Marie Lévesque, the whole without costs. [ 111 ] I would also dismiss the incidental appeal, without costs. BENOÎT MORIN J.A.