2012 QCCA 257, 2012 QCCA 257

Watters c. White 2012 QCCA 257 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-020928-107 (500-17-025581-052) DATE: FEBRUARY 9, 2012 CORAM: THE HONOURABLE FRANCE THIBAULT, J.A. LOUIS ROCHETTE, J.A. NICHOLAS KASIRER, J.A. GORDON WATTERS APPELANT / INCIDENTAL RESPONDENT – defendant v.

MARCY WHITE and ANDREW TROSSMAN RESPONDENTS / INCIDENTAL APPELLANTS – plaintiffs JUDGMENT [ 1 ] On appeal from a judgment of the Superior Court, District of Montreal, (the Honourable Brian Riordan), rendered on July 5, 2010 and corrected on July 22, 2010, which, inter alia , maintained the action of the respondents Marcy White and Andrew Trossman against the appellant Dr. Gordon Watters, and condemned Dr.

Watters, solidarily with another physician, to pay the respondents an amount of $6,000,276, with interest, additional indemnity and costs, as specified in paragraphs [430] to [432] of that corrected judgment; [ 2 ] For the reasons of Kasirer, J.A., with which Thibault and Rochette, JJ.A. agree, THE COURT : [ 3 ] ALLOWS the appeal, with costs; [ 4 ] DISMISSES the incidental appeal, without costs; [ 5 ] DISMISSES the respondents' action against Dr. Gordon Watters, with costs. FRANCE THIBAULT, J.A. LOUIS ROCHETTE, J.A. NICHOLAS KASIRER, J.A.

Mtre David Everett Platts Mtre Sean Griffin McCARTHY TÉTRAULT For the appellant / incidental respondent Mtre Gordon Kugler Mtre Arthur Jay Wechsler (absent at the hearing) Mtre Stuart Kugler KUGLER KANDESTIN For the respondents / incidental appellants

Dates of hearing: May 31, 2011 REASONS OF KASIRER, J.A. Outline I Introduction II Context a) 1970 to 1974

b) The birth of Yochai Liss in 1988

c) The birth of Jacob Trossman III Trial Judgment IV Analysis

a) Extracontractual fault (

i) Obligation of means imposed on physicians A. Identification of the appropriate standard of conduct B. Duty of confidentiality owed by Dr. Watters to his patient (ii) Conduct expected of the reasonable physician in the circumstances

b) Causation (

i) Was a "palpable" error made in respect of the diagnosis? (ii) Was the error an "overriding" one? (iii) Frank Carin’s conduct as breaking the chain of causation

c) Losses suffered by the respondents V Conclusion *** I Introduction [ 6 ] In 1971, a physician diagnosed his infant patient with a debilitating, neurological disease inherited through a gene carried by

the boy’s mother. Other than one of the child’s parents, the doctor did not inform family members – persons with whom he had no therapeutic relationship – of the risk that they or another relative might pass the disease on to their children. [ 7 ] Thirty years later, a second cousin of the sick boy gave birth to a child with a sex-linked neurological disease with similar symptoms.

The mother and her husband sued, among others, the physician, alleging that had he taken reasonable steps to ensure that the relatives were informed of the earlier diagnosis, she would have learned of the risk of having a sick child and terminated her pregnancy.

The trial judge agreed and awarded them over $6,000,000 for losses connected to the birth of their child in 2002. [ 8 ] The doctor appeals, saying he had committed no fault, that he had no duty to inform the relatives or to see that they were informed and, even if he did, his conduct could not be said to have caused the losses associated with the birth of the sick child so many years later.

The mother and her husband have filed a cross-appeal, arguing the judge underestimated the damages required to compensate their loss. [ 9 ] Whether a doctor is bound to take steps to inform relatives of his or her patient of the risks associated with an inherited disease is at the heart of this appeal. II Context [ 10 ] To understand the relevant events properly, it is useful to refer to the family tree used by the trial judge and reproduced as

schedule A to these reasons. The following is a sketch of the salient facts and the principal actors involved. [ 11 ] Plaintiffs, Marcy White and Andrew Trossman are the parents of Jacob Trossman , born in Toronto on [...], 2002 with a neurological disorder called Pelizaeus-Merzbacher Disease (PMD). Children afflicted with this condition generally have respiratory difficulties, are severely handicapped and often die prematurely. The disease is sex-linked in that it is inherited by 50% of male children born of women who carry the gene for PMD. [ 12 ] Corey Carin was born on [...], 1970.

He was the first child of Audrey Wener Carin (later Liss) and Frank Carin. At birth, he experienced serious respiratory difficulties. Handicapped and plainly very unwell, the boy was later hospitalized at the Montreal Children’s Hospital where Dr. Gordon Watters examined him. Diagnosed with Plott’s Disease, Corey was institutionalized and died in 1984. Aged three when Corey was born, Marcy White was the boy’s second cousin. Her grandmother Edythe Sacks was Corey's great- aunt. [ 13 ] A co-defendant at trial and sole appellant here, Dr.

Gordon Watters was a neurologist on staff at the Montreal Children’s Hospital in the 1970s. Dr. Watters diagnosed Corey with Plott’s Disease, an hereditary neurological condition similar to PMD in its symptoms that is also passed on through a gene carried by the mother. Many years later, after the birth of Jacob, it was ascertained that Corey must have suffered from PMD, not Plott’s Disease as Dr. Watters had initially thought. [ 14 ] Dr. Naomi Fitch was a geneticist associated with the Jewish General Hospital who studied Corey’s case in the 1970s with Dr. Watters. She was a defendant in first instance. Drs.

Fitch and Watters collaborated on a scientific

article recounting Corey’s diagnosis with Plott’s Disease that was published in 1973. Dr. Fitch’s illness and death meant she did not give her version of the events either on discovery or at trial. [ 15 ] Audrey Carin Liss was a plaintiff and was called as a defendant in warranty by Dr. Watters. She is the daughter of Nathalie Richer Wener, the niece of Edythe Richer Sacks and the first cousin, once removed, of Marcy White. Her first husband was Frank Carin and Corey was born of that union in 1970.

Her second husband was Claudio Liss with whom she had four children, including Yochai Liss in 1988, who was handicapped. In 2002, it was ascertained that Ms. Liss is a carrier of the disease for PMD. Her son Yochai Liss, who died in 2006, was likely afflicted with PMD. [ 16 ] Frank Carin , now deceased, was Corey Carin’s father and was married to Audrey Liss at the time of Corey’s birth. [ 17 ] Beverly White is the daughter of Edythe Sacks.

She is the mother of Marcy White and of a son, Morty, who is healthy. [ 18 ] Edythe Sacks is the mother of Beverly White, the grandmother of Marcy White and the great-grandmother of Jacob Trossman. She is the aunt of Audrey Liss and great-aunt to Corey Carin. She was also the mother of two sons, referred to here as the Sacks’ boys, who died in infancy in the 1940s of unknown causes. In their study of Corey’s case, Drs. Watters and Fitch speculated that the two boys, who apparently showed symptoms similar to those of Corey, died of Plott’s Disease of which Edythe must be a carrier.

Following Jacob's diagnosis with PMD in 2003, experts formed the view that the Sacks’ boys likely died of PMD. [ 19 ] The facts can be divided into three principal periods: first, from 1970 to 1974, during which time Dr. Watters treated Corey as his patient, and Dr. Watters and Dr. Fitch published the academic

article describing Corey’s condition and that of the Sacks’ boys as Plott’s Disease; second, events surrounding the birth of Yochai Liss to Audrey Carin Liss in 1988; and, third, from 2002, marking the date of birth of Jacob Trossman. a) 1970 to 1974 [ 20 ] Following Corey’s birth, attending physicians informed parents Audrey and Frank that the boy had respiratory difficulties and stridor – unnatural rasping noises when he breathed.

In May of 1970, Corey was admitted to the Montreal Children’s Hospital where he was initially clinically diagnosed as suffering from bilateral abductor paralysis of the vocal chords, stridor, paralysis of the soft palate and an undetermined multiple central neurological deficits. Dr. Watters was asked to provide a neurological consultation. On May 12, 1970, he examined Corey and met with both parents. They provided Dr. Watters with information on their immediate families. At that meeting, Dr. Watters informed both Audrey and Frank that their son Corey’s medical condition might be hereditary.

He raised the possibility that Corey could be suffering from Plott’s Disease, a rare sex-linked condition described in 1964 in a medical journal by Dr. Dwight Plott.

[ 21 ] At the age of nine months, Corey was institutionalized where he would remain until his death in 1984. During the thirteen years Corey lived at the Anbar Institute, his mother Audrey never visited him, nor did any other member of his extended family. Frank was the sole parent involved in Corey’s care. [ 22 ] In May of 1971, Corey was admitted to the Montreal Children’s Hospital under the care of Dr. Watters.

The purpose of this further hospitalization was to verify the earlier clinically-based hypothesis that Corey was suffering from Plott’s Disease. [ 23 ] During Corey’s stay, Frank came to the hospital without the boy’s mother. In fact, Dr. Watters would never meet Audrey again. Dr. Naomi Fitch, accompanied Frank at a meeting with Dr. Watters at the hospital. Dr. Fitch informed Dr. Watters at this meeting that an aunt of Audrey had given birth to two sons with stridor who died in infancy in the 1940s. This information comforted Dr.

Watters in the hypothesis that Corey’s condition was hereditary, and specifically sex-linked through the mother. [ 24 ] Dr. Watters never met the mother of the two boys, Audrey’s aunt, Edythe Sacks. [ 25 ] At that admission, Drs. Watters and Fitch informed Frank that if ever Corey was clinically diagnosed with Plott’s Disease, the hereditary implications were such that his wife, Audrey, was at risk of having another boy with the same condition. If Audrey was a carrier of a gene for this sex-linked disorder and she gave birth to a boy, that boy would have a 50% chance of having Plott’s.

The doctors also explained to Frank that there were implications for the women in Audrey’s extended family given the sex-linked character of the disease. [ 26 ] Corey underwent a series of tests during that hospitalization, including nerve and muscle biopsies, to determine whether he was suffering from a certain peripheral nerve diseases, including leukodystrophies such as PMD. On the basis of these tests, PMD was eliminated as a possible clinical diagnosis. Dr.

Watters thus confirmed his earlier diagnosis that Corey was most likely suffering from hereditary sex-linked laryngeal abductor paralysis or Plott’s Disease. This diagnosis was carried forward from that day onwards until Corey’s death. [ 27 ] Corey’s medical file recorded that his mother’s aunt had two children with stridor who died in infancy. [ 28 ] After receiving the lab results, Dr. Watters conveyed Corey’s final diagnosis to Frank over the telephone in July of 1971, confirming that the boy suffered from Plott’s Disease as he had been told at admission when Dr. Fitch accompanied him.

He said to Frank that it was important to speak to his wife Audrey about Corey’s final clinical diagnosis and its implications for her family. He said he was available to meet with Audrey to discuss the matter further. During the same conversation, Frank informed Dr. Watters that Audrey was not able to handle such information and that he would inform his wife at a time that was appropriate. [ 29 ] Dr. Watters never contacted Audrey subsequently to his formal diagnosis. He relied on Frank to convey this information to his wife. Despite his undertaking to Dr.

Watters that he would tell her when the time was right, Frank never told Audrey of the final diagnosis. Dr. Watters never contacted Edythe, the mother of the Sacks’ boys, to inform her of his view that she was likely a carrier of Plott’s Disease. [ 30 ] In 1974, Dr. Watters admitted Corey for a neurological re-evaluation. Frank signed consent forms to permit additional testing in respect of the clinical diagnosis of Plott’s Disease. During this hospitalization, Dr. Watters did not discuss with Frank how Audrey and others in her family were contending with the diagnosis. Dr.

Watters testified that he could not imagine that Frank had not informed Audrey of the news. [ 31 ] In 1974, Dr. Watters did not know that Frank and Audrey had separated. [ 32 ] The admission in 1974 was the last contact that Dr. Watters had with his patient, Corey, and Corey’s father, Frank. [ 33 ] The

article written by Drs. Fitch and Watters in 1973 deserves special mention. [ 34 ] Sometime between 1971 and 1973, Dr. Fitch approached Dr. Watters with the idea of publishing an academic study comparing Corey’s diagnosis and Dr. Plott’s findings in 1964. Dr. Fitch proposed that the deaths of Edythe Sacks’ children in the 1940s be included in the family history. The

article would compare the condition of the Sacks’ boys and Corey with the four patients described by Dr. Plott in 1964. [ 35 ] Dr. Fitch obtained

summary information on Edythe’s sons for Dr. Watters so that he might review the neurological findings. It appears that Dr. Fitch secured the deceased boys’ medical charts by way of an authorization form signed "Mrs. Jack Sacks". Dr. Watters did not review or even see the medical charts. [ 36 ] Dr. Fitch prepared the anonymous family trees used in the

article that included nine women in Audrey’s extended family. Dr. Watters was never informed of the identities of the individuals in the family trees. The

article included photographs of Corey but none of the subjects, including Corey, was identified by name. The

article was not provided to Frank, Audrey or any other member of their respective families. [ 37 ] Published jointly by Drs. Watters and Fitch in the journal Clinical Genetics, the

article was entitled "Familial Laryngeal Abductor Paralysis and Psychomotor Retardation". Based on a comparison of the clinical descriptions of Dr. Plott’s patients, Corey and the two Sacks’ boys, the authors wrote that all seven male patients suffered from the same syndrome, and that the gene causing it "is either sex-linked recessive or an autosomal dominant with male sex limitation". The

article concluded Corey, born in 1970, and the Sacks boys, who died in the 1940s, all had the syndrome described by Dr. Plott in 1964: Plott’s Disease.

b) The birth of Yochai Liss in 1988 [ 38 ] In 1977, Audrey moved to Israel. She eventually married Claudio Liss and had four children. The fourth child, Yochai, a boy, was born in 1988 and suffered from symptoms very similar to those that had afflicted Corey. Yochai was diagnosed at age two with

leukodystrophy, which is a category of diseases, almost exclusively hereditary, one of which is PMD. Audrey recognized the similarity between Yochai and Corey, but did not want to accept it. Yochai’s medical records contain a note that his mother had a deceased son from a previous marriage who suffered from a neurological disorder. [ 39 ] Yochai died in 2006. Dr. Watters knew nothing of his birth or medical condition. [ 40 ] Marcy White, Edythe Sacks and Beverley Sacks apparently did not make a connection between Corey’s condition and that of Yochai. In the family, it was simply understood that the two boys were "not well".

c) The birth of Jacob Trossman [ 41 ] On [...], 2002, Marcy gave birth to Jacob in Toronto. He was born with breathing problems and other symptoms similar to those of Corey and Yochai, as well as the two Sacks’ boys who died in the 1940s. [ 42 ] The day of Jacob’s birth, his condition prompted his father Andrew to think of the deaths of the Sacks’ boys. He asked Marcy’s grandmother, Edythe, for more information about her sons. Andrew and Marcy eventually obtained the medical chart of one of the Sacks’ boys and discovered that he and Jacob had similar symptoms. Marcy spoke to Audrey about Corey and Yochai.

Audrey informed her that Corey had suffered from like symptoms at birth. [ 43 ] Over a year later, after extensive testing, Jacob was diagnosed not with Plott’s Disease but PMD. Marcy, her mother Beverley and grandmother Edythe were also tested and confirmed as carriers of the specific gene point mutation linked to PMD. [ 44 ] Dr. Feigenbaum, the geneticist involved in testing Jacob, undertook a literature search and found the

article published in 1973. He gave a copy to Marcy and Andrew. Marcy recognized her family tree in the article. [ 45 ] Subsequent to Jacob’s birth and prior to his death in 2006, Yochai was tested and the leukodystrophy with which he had been diagnosed was identified as PMD. [ 46 ] Audrey, the mother of Corey and Yochai, was tested and confirmed to be a carrier of the same gene mutation. [ 47 ] Retrospectively, it was plain that Dr. Watters had clinically misdiagnosed Corey as suffering from Plott’s Disease rather than PMD, a disorder Dr.

Watters had eliminated as a possible diagnosis for Corey in 1971. [ 48 ] A year after Jacob’s birth, Marcy became pregnant again. She had the male fetus tested for the gene mutation and discovered that it was affected by PMD. She decided to have a therapeutic abortion. She subsequently chose to have twin girls by clinical pre- implantation to ensure that they would not be carriers of PMD. [ 49 ] In the period following Jacob’s birth, Marcy White resigned from her lucrative job in the financial services industry in order to provide and coordinate the boy’s care. [ 50 ] Marcy White and Andrew Trossman sued Dr.

Watters (later adding Dr. Fitch and the Jewish General Hospital as defendants) to recover losses they incurred as a result of Jacob’s birth. The lawsuit alleged that Dr. Watters committed an extracontractual fault for having failed to take all reasonable measures to inform Edythe of the genetic disorder in her family. It was alleged that had she been so informed, Marcy would have learned of the risk and terminated her pregnancy. Audrey also sued Dr. Watters for losses she suffered. Dr. Watters brought an action in warranty against Audrey for having failed to advise her family of the risks of illness.

III The trial judgment [ 51 ] As a prefatory note, it bears mentioning that two aspects of the 432-paragraph trial judgment are immediately striking to the reader. First, the judge’s reasons display thoughtfulness and compassion in respect of the plight of Corey Carin, Jacob Trossman and their respective families, including the plaintiffs. Second, the judge balanced this account with explicit mention of the fact that "[n]o one questions the high quality of the care and the insightfulness of the diagnostic efforts of Dr. Watters with respect to Corey in the 1970s" (paragraph [43]).

He described defendant Gordon Watters as a "truly talented and dedicated physician" (paragraph [77]). [ 52 ] The trial judge nevertheless held Dr. Watters responsible for the harm suffered by Marcy and Andrew arising out of Jacob’s birth in 2002. He decided that when Corey was his patient in the early 1970s, Dr. Watters had an obligation to inform members of his patient’s extended family with whom he had some contact of the risks connected with the sex-linked, hereditary disease that he had diagnosed in the boy. Specifically, the judge named three civil wrongs committed by Dr.

Watters: firstly, he failed to inform Edythe and Beverly directly of the implications for the family of his diagnosis; secondly, it was wrong not to secure permission from Frank that would allow Dr. Watters to inform other family members of the risks flowing from his diagnosis; and, thirdly, Dr. Watters was wrong in omitting to ensure that Audrey was adequately informed of and counselled as to the genetic implications associated with Corey’s diagnosis. In the course of his reasons, the judge also criticized Dr. Watters for not following up with Dr.

Fitch to ensure that she was communicating with the Sacks’ family. He observed, as well, that Dr. Watters should have encouraged Frank to inform members of the family. [ 53 ] The civil wrongs resulting in the failure to inform Edythe or Beverly – characterized by the judge as faults under

article 1053 of the Civil Code of Lower Canada in the key period of 1971 to 1974 – caused the injury suffered thirty-some years later by Marcy and Andrew connected to Jacob’s birth. The judge reasoned that had Dr. Watters informed Edythe or Beverly of the diagnosis in the 1970s, Marcy White would have learned of the risk she ran of having a sick child. Had Marcy known of the genetic implications of Dr. Watters’ diagnosis, she would have terminated her pregnancy in 2002.

Jacob would not have been born and his parents would not have suffered the pecuniary and non-pecuniary losses associated with his birth and on-going care. [ 54 ] The judge held that Dr. Fitch’s failure to inform Edythe of the risk she and her family members faced was also a civil fault. This omission also had a share in causing the loss suffered by Marcy and Andrew (paragraphs [115] and [141]).

[ 55 ] The judge dismissed the action brought by Audrey against Dr. Watters for harm suffered by her arising out of Yochai’s birth in Israel in 1988. Dr. Watters’ omission to ensure that Audrey was fully informed of Corey’s diagnosis was a fault (paragraph [114]). Yet Audrey’s own conduct in respect of Corey’s diagnosis – the judge characterized it as "denial" – meant that Dr. Watters’ omission was not the cause of the losses that Audrey sustained as a result of Yochai’s birth (paragraph [196]).

Moreover, the cause of action arising out of his fault in failing to apprise Audrey properly of the risk was dismissed because her claim was prescribed (paragraph [234]). [ 56 ] The claim by Marcy and Andrew against the hospital where geneticist Naomi Fitch conducted her research failed because of the absence of control and supervision in the working relationship between Dr. Fitch and the hospital (paragraph [157]). [ 57 ] The action in warranty brought by Dr. Watters against Audrey was also dismissed.

Audrey neither knew nor should have known that she was a carrier of a sex-linked disease prior to Jacob's birth in 2002. Accordingly, she was not at fault for failing to inform Marcy and Andrew of the risk of having a male child. She did not contribute to their loss, nor did her conduct break the causal chain between Dr. Watters’ fault and the harm arising out of Jacob's birth (paragraphs [212] to [215]). [ 58 ] The judge evaluated the pecuniary and non-pecuniary losses suffered by Marcy and Andrew at $6,000,276.

He decided that interest and the additional indemnity should run on $240,000 of that amount from the dates of service of the original actions against Dr. Watters and Dr. Fitch. He held that interest and additional indemnity should only run on the more substantial balance from October 26, 2009, the date at which Marcy and Andrew re-amended their actions to increase the amount of their claim (paragraphs [410] to [423]). [ 59 ] The doctors were solidarily liable. Damages and court costs were apportioned between them, with Dr. Watters assuming a 75% share, based on the greater role he played in Corey's care, and Dr.

Fitch assuming 25% (paragraph [263]). [ 60 ] No appeal was brought against the finding that Dr. Fitch was liable. The decision absolving the hospital of liability was not appealed. Audrey did not appeal the dismissal of her action against Dr. Watters. Dr. Watters did not appeal the judge's decision to dismiss his action in warranty against Audrey. Accordingly, these reasons will treat only issues relating to the judge's decision to hold Dr. Watters liable to Marcy and Andrew. IV Analysis

a) Extracontractual Fault [ 61 ] As noted, the trial judge attributed three faults to Dr. Watters. He wrote that the failure to communicate directly with Edythe and Beverly was a fault (paragraphs [75] to [99]). In the event that Dr. Watters was precluded from passing on information by reason of a duty of confidentiality owed to Corey, the judge held that the doctor's failure to seek permission from Frank to communicate the genetic implications of the boy’s diagnosis to the Sacks’ family directly was a second fault (paragraphs [100] to [104]). Thirdly, the judge held that Dr.

Watters’ failure to persist in ensuring that Audrey was adequately warned was a fault (paragraphs [105] to [114]). That latter finding, held not to be causally responsible for Audrey’s loss, was not appealed. It is thus not necessary to determine whether the trial judge was right in holding Dr. Watters to be at fault in this regard and I expressly refrain from so doing. [ 62 ] Finally, the judge also reproached Dr. Watters for insufficiently following up with Dr. Fitch to ensure that she had informed the Sacks’ family of the risk (see notably paragraphs [92] to [94]). He also observed that Dr.

Watters should have further encouraged Frank to communicate with the Sacks’ family (see notably paragraphs [69], [73], and [90]). The judge did not describe this conduct as wrongful in the same explicit way as for the three faults named above. The respondents do, however, insist that the lack of encouragement given to Frank and the failure to follow up with Dr. Fitch were civil wrongs. It seems best to treat this conduct as alleged examples of the more general failure by Dr.

Watters to take reasonable steps to inform Edythe and Beverly of the risks attendant his diagnosis and which, for the judge, constituted a civil fault. [ 63 ] Broadly speaking, then, the question at hand is whether Dr. Watters committed a fault in failing to take reasonable steps to ensure that Edythe and Beverly were informed of the risk associated with his diagnosis under the law applicable in the early 1970s. [ 64 ] The judge arrived at his conclusion that Dr.

Watters committed a fault in failing to inform Edythe and Beverly directly that they may have been carriers of the sex-linked, hereditary disease in two steps (paragraphs [40] to [74]). The appellant says that this two- step test, which the judge applied to both doctors, was wrong in law. For the appellant, the mistake in law applies not just to the analysis of Dr. Watters failure to contact Edythe and Beverly directly, but to the whole of the judge's analysis of Dr.

Watters' alleged failure to take reasonable steps to ensure that Edythe and Beverly were informed of the risks associated with the physician's findings. [ 65 ] Step one of the test the judge proposed required the plaintiffs to establish that the doctors’ failure to inform persons who were not his patients but with whom he was in contact violated the reasonable person standard imposed by the general law of extracontractual liability in

article 1053 C.C.L.C. (paragraph [51]). Step one was further divided into two sub-tests. First, the judge asked whether the circumstances of the diagnosis and the risk were sufficiently serious that the reasonable person would deem that they ought to be communicated to appropriate persons other than the patient (paragraph [55]). Next, the judge held that the deciding to whom a duty to inform was owed depended on the gravity of the illness and the intensity of the relationship between the defendant doctors and the persons in question.

For the judge, the persons within what he called a "radius of contact" with the doctors would be owed such a duty (paragraph [57]). The stronger, or more direct, the radius of contact between the physician and a third party, the more likely it would require the physician to act. [ 66 ] Step two of the analysis was to be undertaken only where the violation of a duty to inform appropriate persons was established under the general rules of civil liability under step one.

The second step invited a consideration of whether standard practices or prevailing ethical norms in the medical profession created an exception to the duty to inform otherwise imposed by the application of the general standard of the reasonable person or, in the words of the judge, an "obligation not to inform" (paragraph [52]). It was only at the second step that the judge considered standard practices in the profession, including the confidentiality that a doctor owed to his or her patient, were relevant.

Specifically, it was at this stage that he asked whether the confidentiality owed to the patient served to relieve the doctor from the duty to inform appropriate third parties of the patient’s diagnosis and the attendant risks (paragraphs [66] to [73]).

[67] Applying step one of his analysis to the facts at hand, the judge held that a reasonable person would have taken measures toinform Edythe and Beverly of the risks associated with Corey’s diagnosis for them and other women in the family. Edythe and Beverlywere not Dr. Watters’ patients. While he had never met them and likely did not even know their names, he knew of their existence basedon the preparation of the

article with Dr. Fitch. Based on this relationship, and in light of the seriousness of the risk, the judge wrote that"the radius of contact between Dr. Watters and Edythe and Beverly was such that an obligation to inform was imposed on him withrespect to the Sacks’ family" (paragraph [78]). [68] After determining that this obligation to inform Edythe and Beverly of the risks of his diagnosis existed for Dr. Watters, thejudge undertook an evaluation, in the second step of his analysis, of whether the standards of practice in the medical profession in the1970s created an "obligation to not inform".

He rejected the experts' view that Dr. Watters had no obligation to inform Edythe andBeverly of the genetic implications of his diagnosis. The judge concluded that there was no need for Dr. Watters to have breached theobligation of confidentiality he owed to Corey in informing Edythe or Beverly. The women could have been properly apprised of the riskwithout learning details of Corey’s circumstances if Dr. Watters had exercised discretion in his dealings with them. The judge concludedat paragraph [99] as follows: "Dr Watters had no ethical obstacle to warning Edythe and Beverly of the genetic implications.

Morecritically, he had the obligation to do so. His omission in that regard is a fault under the general rules of civil liability". [69] The respondents argue that the judge was correct in applying his two-step test to determine that Dr. Watters had a duty toinform Edythe and Beverly and that the judge made no mistake in law in applying the standard of reasonably prudent behaviour pursuantto

article 1053 C.C.L.C. Once that standard was identified, his finding of what constituted reasonable behaviour in the circumstanceswas, for the respondents, a question of fact. The finding that the omissions amounted to a fault in the circumstances would therefore onlybe subject to review by this Court if Dr. Watters shows that the trial judge made a palpable and overriding error in his appreciation of theevidence. (

i) Obligation of means imposed on physicians A. Identification of the appropriate standard of conduct [70] Ascertaining whether Dr. Watters was at fault required an analysis of the extracontractual relationship between Dr. Wattersand other family members who were not his patients. "As such", wrote the judge, "the typical gauge of a physician’s actions, the likelyconduct of the prudent and diligent doctor placed in the same circumstances [Lapointe v. Hôpital Le Gardeur, (SCC),[1992], 1 S.C.R. 351, 361 is cited by the judge], is not the sole or even the principal measure here. [...]" (paragraph [44]). The judgedecided to apply the general standard of the reasonable person associated with

article 1053 C.C.L.C. in the first step of his test, withoutadapting it to the circumstances of the defendant Watters as a medical specialist. [71] With respect for the contrary opinion, I am of the view that the judge applied the wrong test in law to determine whether Dr.Watters committed a fault in not taking the proper steps to ensure that Edythe and Beverly were informed of the risks associated with hisdiagnosis. The judge mistakenly excluded matters relating to what a reasonable physician would have done in the circumstances inarriving at the preliminary conclusion that Dr.

Watters owed Edythe and Beverly, as third parties to the doctor-patient relationshipestablished with Corey, a duty to be informed of those risks. Instead, he imposed a duty to inform based on the reasonable personstandard, rather than that of the reasonable physician. He then decided that the gravity of the illness and the radius of contact, withoutregard to prevailing practices in the profession, mandated a duty to inform. Only after the judge imposed a duty to inform Edythe andBeverly on Dr.

Watters did he consider the norms of medical practice of the day. [72] The effect of the two-step test applied by the judge was to throw the burden on Dr. Watters of disproving the existence of aduty to inform family members who were not his patients of the implication to them of his diagnosis. This led to the judge’s finding of aduty when, considering the applicable rules on confidentiality and the standards of practice prevailing in the profession in the early1970s, no such duty had been established. Instead, the judge should have placed the burden of proving Dr.

Watters’ fault – the failure toact as the reasonable neurologist would have in the circumstances – squarely on the shoulders of the plaintiffs. [73] The judge was not mistaken in holding that

article 1053 C.C.L.C. imported a standard of reasonableness to the relationshipbetween Dr. Watters and Edythe or Beverly, who were not his patients, nor was he wrong in suggesting that

article 1053 created a pre-existing duty of care. But the standard cannot be that of the reasonable person without due regard to the defendant’s circumstances. Thejudge should have applied the test identified by the Supreme Court in Lapointe[1] in which, specifically addressing

article 1053C.C.L.C., L'Heureux-Dubé J. wrote that "[p]rofessional liability imports the principles of ordinary civil liability. Generally, doctors havean obligation of means, and their conduct must be assessed against the conduct of a prudent and diligent doctor placed in the samecircumstances". This standard informs the intensity of the obligation of means imposed on physicians as part of the general law of civilliability.

In the words of three leading scholars, "[l]a faute médicale consiste donc en la violation de la norme de conduite objective dupraticien raisonnablement compétent et habile placé dans les mêmes circonstances que le médecin en cause".[2] [74] This principle of analyzing civil liability of physicians along medical standards that the judge declined to follow in the firstleg of his test was reaffirmed with special regard to medical specialists in ter Neuzen.[3] It would thus have been appropriate to compareDr. Watters’ conduct to that of the reasonable pediatric neurologist in the circumstances.

It was against that standard that the judgeshould have inquired whether the omission to take steps to inform Edythe and Beverly constituted a civil fault. [75] As a general rule, this standard is no less applicable when a doctor is interacting, as a physician, with a person who is not hisor her patient. Obviously, there are cases when a doctor is called to answer for injury caused to a third party in circumstances that havenothing to do with the practice of medicine or his or her status as a physician.[4] That is not what is at issue here: notwithstanding thefact that Dr.

Watters had no therapeutic relationship with Edythe or Beverly, it was the omission to impart information he knew andappreciated as a physician that is the alleged source of liability. It is as a physician that – according to the claim made by the respondents– he learned of the existence of Edythe and Beverly. It is alleged that, based on his knowledge as a medical specialist, he should haveinformed Edythe or Beverly of the implications of that diagnosis for them and others in the family.

This indeed was the basis of themotion to institute proceedings brought by Marcy and Andrew: "[…] as a pediatric neurologist, he [Dr. Watters] had an obligation toinform the FAMILY of his genetic findings pertaining to COREY, BABY SACKS and MICHAEL; he failed to meet the applicable

standards of care of a physician with his speciality, in not informing the FAMILY of his genetic findings […]". [Emphasis in original.]) [ 76 ] It was an error of law for the judge to exclude the reasonable physician standard as he did. A non-physician, however reasonable and prudent, would not have understood the full import, for other members of the family, of the diagnosis of Plott’s Disease. It was as a pediatric neurologist that Dr.

Watters seized upon Plott’s as a clinical diagnosis and that expertise allowed him to measure the gravity of the diagnosis as a rare sex-linked condition for which women in the extended family may or may not have been carriers. An ordinary person, however reasonable, would not have any inkling of what was expected by way of proper behaviour of a pediatric neurologist in the circumstances. Moreover, a non-physician would not have been mindful of the duty of confidentiality that should have weighed upon Dr.

Watters in the same way that, in the circumstances, a reasonable physician could have been expected to understand. [ 77 ] The judge cites Roberge [5] to recall that a professional cannot always avoid civil liability by the mere fact that he or she has acted in compliance with applicable rules or norms in the profession. With respect, it is mistaken to apply this case in a manner that would relieve a court from considering whether practices in the medical profession are relevant prior to determining if Dr. Watters had a duty to take steps to inform Edythe and Beverly.

As the Supreme Court noted in ter Neuzen in reviewing the application of the principles set forth in Roberge to doctors, there are indeed some circumstances where failure to adopt a common sense practice may be the source of negligence even where established medical practice might suggest otherwise.

But Sopinka, J. made very plain that this is unusual, and that "[ w]here a common and accepted course of conduct is adopted based on the specialized and technical expertise of professionals, it is unsatisfactory for a finder of fact to conclude that such a standard was inherently negligent". [6] My colleagues Pelletier and Dufresne, JJ.A. emphasized in Hébert that one must be mindful of the "étroitesse de la brèche" [7] represented by Roberge , a case dealing with the obligations of a notary.

In complex circumstances like this one, clinical and diagnostic experience is critical to understanding whether a physician’s conduct is reasonable. Where courts do not have the necessary expertise to assess technical matters relating to medical treatment, due regard must be given to the opinion of experts. [ 78 ] Counsel for the respondents urged that the judge rightly applied Roberge because to do otherwise would mean that a physician, who knows of the consequences of non-disclosure of information, would be held to a lower standard of care than an ordinary person under the general rules of civil liability.

With respect, this miscasts the Roberge case.

By applying the rule in Lapointe based on the conduct of the reasonable professional in the circumstances, a physician is certainly not held to a lower standard in the circumstances, but rather a standard that is different by reason of its adaptation to the abstract figure of the reasonable physician. [8] In point of fact, the intensity of the obligation is the same – an obligation of means – but the difference comes from a consideration of the professional circumstances of the defendant. [ 79 ] The judge was not unaware that he was proceeding in a way that many might consider to be unorthodox.

He noted that an analysis, unlike his own two-step test, that "start[s] by determining if the doctors acted in compliance with the practice of the time and then [asks] if the practice was reasonable/sufficient/compliant with general civil law obligations" was wrong (note to paragraph [52]). "The Court rejects this approach as a general guideline," he wrote, "because it focuses on the particular over the general.

In our view, it is critical first to establish the general obligation under the civil law and then see if an exception to it has been created". [ 80 ] T he approach in Lapointe is to be preferred for the very reason the judge cited to justify setting it aside: because it focuses on the particular physicians' standard over the general reasonableness test. Civilian methodology of obligations adapts the general to the particular in order to ensure just outcomes i.e. it adapts the in abstracto measure of fault set on a general standard of reasonableness to that of the defendant’s own professional peers.

To do otherwise might threaten the commutative orientation of the law of civil liability that ensures that it is fair to hold a professional liable to compensate for a civil wrong.

The principle is a guard against holding doctors responsible for misfortunes on a basis foreign to the mission of private law, including the compassion that an ordinary person might understandably feel for a victim’s plight. [9] To impose a "duty to inform" on a doctor, based on the reasonable person standard without averting to the practices and norms of the profession, is a mistake in law. [ 81 ] Instead of considering expert evidence of prevailing practices for deciding whether a duty to inform existed, the judge wrote: [55] The Court understands that not just any facts would create such a duty.

They must be sufficiently important, meaning that they are of serious enough consequence, that a reasonable person would deem that they ought to be communicated to appropriate persons. Where facts of that nature are to a physician's knowledge, then an obligation to inform exists. [56] The question then arises as to whom this obligation is owed. Who are the "appropriate persons"? [57] It would be a thorny issue indeed to attempt to delineate specific criteria for every case and one can do no more than suggest general guidelines.

That said, it seems inevitable that the focus of any such guidelines must be, on the one hand, the gravity of the illness and, on the other, the intensity of the relationship, either existing or possible, between the doctor and the third persons, what we call the "radius of contact". [ 82 ] The judge's "radius of contact" test to determine the persons to whom Dr. Watters owed a duty to inform Edythe and Beverly of Corey’s diagnosis falls afoul with the reasonable physician standard, explicitly set aside by the judge in paragraph [44] of his reasons.

Whatever its possible merits, that test has no grounding in the rules of art of the profession and, in particular, in the reasonably foreseeable consequences of a physician’s conduct in the circumstances. A judge cannot set aside expert opinion in order to establish the existence of a duty to inform a non-patient of genetic risk in the absence of evidence of the standard medical practice.

"Faire autrement voudrait dire", wrote Dufresne, J.A. in a comparable context, "qu’un juge peut déterminer la norme de comportement du professionnel prudent et diligent de manière purement subjective, sans autres connaissances d’un domaine spécialisé". [10] The field of specialized practice in question – paediatric neurology, with specific reference to inherited disorders that are clinically diagnosed such as Plott’s Disease – did not lend itself easily to the substitution of common sense to expert opinion. [ 83 ] Notwithstanding the absence of a doctor-patient relationship, the judge found that the radius of contact between Dr.

Watters and Edythe was close indeed, in light of the work Dr. Watters did on the article, thereby justifying a duty to inform her of the risks associated with this very serious disorder. He extended it to Beverly too, because Dr. Watters knew of her existence as well. It mattered little that they had never met, that Edythe and Beverly were not members of the patient’s immediate family or even that their names were

unknown to the doctor. The judge expressly stated that the question turned not on whether the third parties are within a "zone of foreseeable risk" but simply on "the degree of contact between the doctor and the third party" (note to paragraph [60]). [ 84 ] The judge relied on a 1996 American case, Safer v. Pack , [11] which provides, in my respectful view, an unsound basis for reasoning by analogy to the present case. Safer concerned the failure of a doctor to inform the daughter of his patient, who had previously died of cancer, that she had a hereditary propensity to the disease. Decided by

summary judgment, the court was obliged to accept the plaintiffs' as yet unchallenged evidence, including evidence from medical experts that it was standard practice in the profession to inform family members of the known genetic threat. In Safer , the doctor failed to tell his patient of the hereditary condition. The case speaks of a duty owed to members of the immediate family. The court observed that the risk to the daughter was foreseeable. In the present instance, the experts did not agree that there was a duty; Dr.

Watters did not fail to inform Corey's father of the disease; Edythe and Beverly are not members of the immediate family; and the trial judge explicitly preferred the radius of contact to foreseeability of risk identified in Safer as relevant to the standard associated with the professional duty.

Whatever its value as precedent elsewhere, Safer is weak authority as the measure of a doctor’s obligation to non-patient relatives on the facts of this case. [12] [ 85 ] On the facts, there is no obvious reason why the radius of contact is limited only to Edythe and Beverly and not other potential carriers of Plott’s Disease in Audrey’s extended family. If Beverly is included, whose status as a carrier was uncertain at the time of Dr. Watters’ diagnosis, what about Nathalie – Audrey’s mother and Edythe’s sister – or Audrey’s other aunts?

There are upwards of nine women in the family tree reproduced in the article, and others who were at risk – such as Marcy – who were not on the chart. Where did Dr. Watters’ obligation end? [ 86 ] More generally, the practical effect of the judge’s radius of contact test would appear to decree much of professional practice in Quebec of the period to be civilly wrong.

The judge’s standard would render the work of a physician extremely onerous: pushed to its logical limit, a doctor in like circumstances might be obliged to seek out and inform all third persons within a radius of contact, beyond his or her patient, whether or not he or she had met them or knew their names and irrespective of foreseeability of risk on a professional measure, where a reasonable non-physician thought that right. The social costs of such a duty could prove to be prohibitive. It could serve as a disincentive to undertake medical work in fields where genetic risks are present.

Moreover, the duty to warn as announced by the judge could transform the doctor-patient relationship as it is currently understood. B. Duty of confidentiality owed by Dr. Watters to his patient [ 87 ] Did a duty of confidentiality owed to Corey serve as a bar to Dr. Watters taking steps to inform other family members of his diagnosis? If so, it would be a further reason for deciding that Dr. Watters was not at fault for failing to ensure that Edythe and Beverly were informed of the risks they faced. [ 88 ] The judge held there was no such bar. He decided, as I have noted, that the radius of conduct between Dr.

Watters and Edythe imposed a duty to inform her of the risks. In the second step of his analysis, he held that Dr. Watters had not shown that the confidentiality he owed to Corey relieved him from his duty to inform Edythe. [ 89 ] The judge did recognize that Dr. Watters owed a duty to the boy, as represented by his parents and, quite correctly, that the duty is not an absolute one (paragraphs [66] and [67]). But he also noted that Dr.

Watters’ candid and credible testimony never referred to the obligation of confidentiality; the judge wrote that the doctor never mentioned it as a concern in the way he acted (paragraph [76]) or as an obstacle to his communicating with the Sacks’ family (paragraph [89]). Further, on the imperative of a doctor’s duty to inform, the judge wrote that "[i]n the face of an illness of the gravity of PMD, [...] a physician at any period of time, whether it be in the 1970s or today, must be a leader, not a follower, in the information process.

This applies no matter what obligation of confidentiality might bind him" (paragraph [68]). [ 90 ] Finally, and most importantly to his finding of liability, the judge held that it was not necessary for Dr. Watters to divulge confidential medical information pertaining to his patient Corey in order to warn third parties of the genetic risk they faced (paragraphs [71] to [73], and [82] to [99] passim ). On this last point, the judge wrote: [98] What obstacle of any sort - professional, ethical, moral, physical or otherwise – stood in the way of Dr.

Watters' advising Edythe and Beverly directly about the genetic implications arising from the Uncles' condition? There was no need to breach the confidentiality of the Carins in doing so. All he had to do was refer to the Uncles and perhaps the Article. If Edythe or Beverly wanted to know if he had any other information, he could then refuse to say more on the grounds of confidentiality. They might not have been satisfied, but they would have been warned. [ 91 ] The judge concluded that Dr. Watters had no ethical obstacle to warning Edythe and Beverly of the genetic implications of his diagnosis.

"More critically", wrote the judge at paragraph [99], "he had the obligation to do so". His omission was a fault. [ 92 ] With due respect, the judge needed to address completely the question as to whether prevailing ethical norms indicated that the reasonable physician in the circumstances would feel bound by a duty of confidentiality to Corey and whether that duty precluded Dr. Watters from informing family members other than the boy’s parents. If Dr.

Watters was bound by confidentiality, he could not tell Edythe and Beverly of the diagnosis if informing them deprived Corey of the protection of that confidence. [ 93 ] By fixing only on the general obligation that Dr. Watters had as a reasonable person, and by excluding the measure of the standard of the reasonable neurologist in the circumstances, the judge wrongly set to one side a consideration of whether Dr. Watters owed Corey a duty of confidentiality in the first step of his analysis. He concluded that Dr.

Watters was bound, in principle, to a duty to inform Edythe and Beverly before any consideration of the duty of confidentiality. This was an error of law that commands a re- evaluation of the matter in light of all the expert evidence. [ 94 ] The error was not corrected by the fact that, in the second stage of his analysis, he considered the duty of confidentiality to see if Dr. Watters could be excused from his otherwise binding obligation to inform the women in Corey’s extended family.

The burden was on the respondents, plaintiffs in first instance, to establish the failure to satisfy the duty to inform; it was up to them to show that Dr. Watters owed no confidentiality to Corey that would conflict with that duty to inform Edythe or Beverly.

[ 95 ] Dr. Watters was bound up in a therapeutic relationship with Corey commencing with the boy’s first visit to his physician at the Montreal Children’s Hospital in 1971. He owed Corey, represented by his parents, a duty of confidentiality incident to that relationship. That the doctor-patient relationship imposed a duty of confidentiality on a physician for Quebec law in the 1970s is not seriously debated even if, as the judge noted, formal consecration of the duty by enactment or in codes of ethics would be fully established in years to come.

The ancient principle of confidentiality was already deeply rooted in Quebec’s legal and medical cultures, as then Professor Baudouin explained in a celebrated paper published in the 1960s. [13] Confidentiality is the cornerstone of the doctor- patient relationship in that it promotes the patient’s trust of the physician that is so essential to both dispensing and receiving care. It was no less part of Quebec law at the time Dr. Watters treated Corey by reason of the fact that the formal texts were not in place. Experts testified in this case that the duty was plainly part of the medical practice of the day.

Failure to respect this obligation of confidentiality could have exposed Dr. Watters to an action in civil liability. [ 96 ] As such, the duty of confidentiality would naturally have weighed on Dr. Watters in his dealings with Corey. Confidentiality is especially important in respect of genetic disorders because, as Professor Flanagan has pointed out, they bear on present and future consequences of the patient’s autonomy and private life. [14] There is no reason to think this was not the case for Corey and his parents in 1971.

Whether or not others knew of Corey’s malady was, in principle, their private affair. [ 97 ] With respect, the judge erred in paragraphs [76] and [89] where he suggested that Dr. Watters appeared not to have taken the medical secret into account. In dealings with his patient and the boy's parents at the time, Dr. Watters was not unmindful of his duty of confidentiality. When asked whether he had sought out any members of the Sacks family after the publication of the

article in 1973, Dr. Watters testified: "I didn’t have the authority except through Audrey to pursue, to engage those people in a discussion about the nature of the problems in their family". [15] [ 98 ] In the end, however, the judge characterized confidentiality as a non-issue. He followed the suggestion of respondents’ expert Martin Letendre that Dr.

Watters did not need to violate his duty to Corey in order to inform Edythe that she was a carrier of Plott’s Disease, and specifically that Edythe’s two sons likely died in the 1940s of the sex-linked disease. [ 99 ] Mtre Letendre said that Edythe could have been informed that she was a carrier of Plott’s Disease based only on a reading of the 1940s medical charts, and that this information alone, once conveyed to Marcy, would have prompted her to terminate of the pregnancy in 2002.

The expert’s position was that this could be done without breaching confidentiality to Corey. [ 100 ] With great respect, it was wrong to hold that Dr. Watters could have told Edythe convincingly and effectively that she was a carrier of a gene for Plott’s Disease without an account of his first-hand clinical diagnosis of Corey’s illness. It was these clinical observations of Corey that allowed Dr. Watters and Dr. Fitch to deduce the diagnosis of the Sacks’ boys.

Given the sex-linked nature of the disorder and, importantly, the fact that its diagnosis was necessarily a clinical one that depended on an intergenerational family history, it would have been necessary to disclose Corey’s condition to Edythe in order to explain to her convincingly why her children had died of that disease rather than from some other cause. [ 101 ] The information that Dr.

Watters had gleaned in respect of Edythe status as a carrier of Plott's Disease was a diagnostic inference that he had made within the context of the privileged therapeutic relationship between himself, as physician, and Corey, as his patient. As such, it cannot be readily dissociated from the privileged information bearing on Corey's condition. It is often said that the scope of the medical secret extends beyond that which a patient reveals to a doctor to include observations that a physician makes in treating his or her patient. [16] That is the case here.

The diagnostic inference that Corey suffered from a sex-linked disorder was made based on clinical observations and observations made from Corey's family history. This included two observable facts, each without reliable meaning in the absence of the other: Corey's affliction and the affliction of the Sacks' boys.

The link between them – a diagnostic inference based on a professional appreciation of the family history – was that both Corey and the Sacks' boys suffered from a sex-linked disorder inherited through their mothers who were themselves related. [ 102 ] As a result, the information as it bears on Edythe was only invested with its full meaning when considered against Corey's situation and vice versa. To speak of Edythe as a carrier, and of her children as afflicted with Plott's, was implicitly to allude to Corey and the privileged information about his condition.

Whether that reference was made explicitly or implicitly, had Dr. Watters revealed to Edythe that she suffered from a sex-linked condition it would have amounted to revealing something he had learned in connection with his treatment of Corey and, at the very least indirectly, something privileged about Corey's condition. As part of Corey's medical history, recorded in his medical file, it was confidential.

The experts other than Mtre Letendre were right in saying that informing Edythe that she was a carrier brought with it a violation of the duty of confidentiality to Corey. [ 103 ] Stated respectfully, the scenario advanced by Mtre Letendre and accepted by the judge defies reasonable belief. Mtre Letendre suggested that Dr.

Watters – who did not know Edythe and whom Edythe had no particular reason to trust – could have spontaneously contacted her to explain to her that she was a carrier of a disease of which she had never heard and that had, some thirty years before, he speculated, killed her two infant children, without any mention of his therapeutic relationship with Corey. The scenario then required Edythe, accepting this information as true, to warn her daughter Beverly – who had already given birth to apparently healthy children, including a boy – of her odds of being a carrier of Plott’s Disease.

Without any knowledge of Corey, Edythe or Beverly were then to have told Marcy. This information alone was to have prompted Marcy to undertake genetic counselling and, ultimately, to have an abortion in 2002. [ 104 ] Dr. Watters did not know of Yochai's illness, nor could Edythe have pointed to any other confirmation of the terrible news imparted to her by this heretofore unknown doctor. Beverly had given birth to a healthy son. It is to be recalled that there was no test for Marcy to take for Plott’s Disease upon which she could secure independent confirmation of Dr.

Watters’ speculative diagnosis of the disorder of the Sacks’ boys. [ 105 ] The judge was no doubt right that Edythe could have been told that, in the doctor’s view, she was a likely carrier of Plott’s, but he could not provide any demonstration of his diagnosis based on family history and his clinical observation of Corey without violating his duty to his patient. How could Dr. Watters credibly impress upon Edythe – who was not his patient and whom he had never met – that she and perhaps her daughter were carriers of a sex-linked hereditary disease? In themselves, the medical records of the two Sacks’

boys who died in the 1940s were inconclusive as to this diagnosis. The clinical finding of Plott’s Disease was a hypothesis made plausible only by reference to Corey and by tracing backwards up the family tree to Edythe. Dr. Watters could not suggest to Edythe that she be tested as a carrier for Plott’s as there was no such test at the time. There would be no talk of PMD as that disease, mistakenly, had been eliminated by Dr. Watters as a possible diagnosis. [ 106 ] Importantly, Edythe knew of Corey and that he was ill. By revealing the sex-linked character of the disease of which she was a carrier, Dr.

Watters would necessarily put Edythe onto the path of discovering the explanation for Audrey's sick child. [ 107 ] The judge observed, at paragraph [98] cited above, that Dr. Watters might have communicated the

article to Edythe as a means of discreetly alerting her of the diagnosis as it pertained to only her. After all, it was in conjunction with the preparation of the

article that her situation came to the attention of Dr. Watters, through research undertaken by Dr. Fitch. For example, when Beverly White was asked at trial what she would have done had the genetic disorder been disclosed to her family, respondents’ counsel made specific allusion to the

article as a way in which she might have found out. [ 108 ] I disagree. Communicating the

article to Edythe would have plainly violated Corey’s right to confidentiality. His photograph appears twice in the article. [17] The relative position of Edythe and her sons on the family tree reproduced in the

article as against the unnamed Corey would inevitably have revealed to the Sacks' women that their cousin had a boy with the same condition, as it did years later to Marcy when she read the article. The judge was mistaken on this point. [ 109 ] Without breaching confidentiality to Corey, Dr. Watters could provide Edythe, at best, with an empty warning.

Without a plainer demonstration to Edythe and Beverly that Plott’s Disease explained the deaths of the Sacks' boys in the 1940s, there is no reason to believe that this incomplete information would have credibly affected, years later, Marcy White’s decision to terminate her pregnancy. With respect, following the expert Letendre on this point, and setting aside the other experts’ view that informing Edythe necessarily implied a violation of confidentiality to Corey, was mistaken. [ 110 ] This is not to say that it was not important for Edythe, and no doubt other members of the family, to have learned of Dr.

Watters’ diagnosis. Dr. Watters and several of the experts rightly recognized this at trial. But asserting this is a far cry from saying that Dr. Watters was obliged to see that she was informed, or that she had an entitlement to know of the risks associated with the diagnosis, at the expense of the duty of confidentiality. The judge observed, at paragraph [68], that in the face of a disorder as grave as PMD, the doctor must be a "leader" in the information-sharing process, "no matter what obligation of confidentiality might bind him".

This is a misstatement of the law. [ 111 ] Care must be taken not to overstate the exceptions to the fundamental duty of confidentiality a physician owes to his patient. There is a narrow category of exception whereby non-consensual disclosure is justified by considerations of public health, urgency or imminent danger.

It may be noted that it was not until 1999 that the Supreme Court of Canada, in a different context, recognized a legal basis for a professional's duty to warn third parties in breach of a duty of confidentiality and only then when the danger faced by the third party was imminent. [18] As grave as matters must seem from today’s perspective, it is far from plain that the imperative to inform Edythe was of that order.

Indeed scholars have observed that the imminence of danger criterion is not easily transposable to the genetic risk circumstance where, temporally, the threat faced is generally not one of the moment. [19] Moreover, urgency was not advanced as the basis for disclosure to Edythe in this case and the judge did not hold, notwithstanding the evidence provided by expert Letendre, that Dr.

Watters was bound to disclose confidential information on that or another basis. [20] (ii) Conduct expected of the reasonable physician in the circumstances [ 112 ] As this Court decided recently in Hébert , the failure by a trial judge to apply the standard of the reasonable professional is an error that commands a re-evaluation of whether a fault can be properly attributed to the physician in the circumstances. [21] A proper measure of Dr. Watters’ conduct requires that to be undertaken here. [ 113 ] That the expert evidence suggested that Dr.

Watters acted in accordance with standard medical practice in not informing the relatives did not, of course, bind the judge, but it does constitute evidence that the appellant acted in a prudent and diligent manner under the Lapointe and ter Neuzen tests. The weight of expert opinion suggested strongly that Dr. Watters’ conduct was consonant with what his peers in the field would have done in the early 1970s, and specifically that Dr. Watters was not out of step with prevailing practice when he chose not to seek out Edythe or Beverly to inform them of the consequences to them of his diagnosis.

In this case, prevailing practice represented evidence that the omission to inform Edythe and Beverly was not a fault based on the conduct expected of the reasonable physician in the circumstances. [ 114 ] The expert evidence pointed plainly to the fact that there was no standard practice by which physicians warned persons other than their patients of the genetic risks associated with a diagnosis such as Plott’s Disease in the early 1970s.

Indeed the experts gave evidence that where an infant was afflicted with a genetically-transmitted neurological disease, it was standard at that time for a physician to inform the parents of the genetic implications of the disorder and that it was not unusual to provide this information to only one parent. Thereafter, it was standard practice to leave it to the parents to convey the medical information to extended family members. [ 115 ] Dr. Watters did just that.

At their meeting in 1970, he informed Corey’s parents Frank and Audrey that the boy might well be suffering from a genetic disorder and, at the admission in 1971, Dr. Watters and Dr. Fitch informed Frank that Corey was suffering from Plott’s Disease, a sex-linked disorder with implications for Audrey and her extended family. Dr. Watters said explicitly to Frank that he was available to meet with both parents to discuss the diagnosis further with them. Experts confirmed that Dr.

Watters acted in accordance with standards of practice in providing Frank, as the sole parent attending the hospitalization, with information on the genetic implications of his son’s condition. Dr. Watters relied on Frank to inform his wife, Audrey, of the child’s diagnosis and its implication for the family. Again, expert evidence suggested that this was not out of step with standard practice. [ 116 ] Not only did all of the experts testify to the fact that Corey was owed a duty of confidentiality, but they were generally of the view – with the exception of Mtre Letendre – that if Dr.

Watters informed Edythe that she was a carrier of a sex-linked hereditary

disease, he would necessarily traduce the duty owed to his patient. Dr. Rosenblatt, for example, testified specifically that it would have been a breach of confidentiality to approach Edythe without the permission of Frank or Audrey. He also said that to tell Edythe just about the presumptive diagnosis of the Sacks’ boys, based on the research done for the article, would result in a breach of confidentiality to Corey.

The experts further explained that, for reasons notably of confidentiality, it was up to the patient – or in this case the parents – to communicate with non-patient family members. [ 117 ] In other words, the better part of evidence on standard practice in the profession, taking into account a physician’s duty of confidentiality that, naturally enough, a reasonable person who was not a doctor would not have in mind, suggested that a physician in Dr. Watters' circumstances should inform an infant patient’s parents and count on them to pass on the news to family members.

This is consonant with the generally held view: scholars have noted that the duty of confidentiality owed to a patient, like Corey, who suffers from an inherited disease, very often comes into conflict with a notional imperative to inform other family members of the risks associated with the genetic condition. [22] [ 118 ] The same may be said of Dr. Watters' omission to encourage Dr. Fitch in following up with genetic counselling for Edythe and Beverly. That omission was not a fault insofar as he could not have encouraged Dr.

Fitch to reveal confidential information about Corey without violating his duty to the boy. Neither Dr. Watters nor Dr. Fitch could have informed Audrey's extended family, according to the experts, without the parents' prior consent. [ 119 ] Finally, the respondents emphasize one aspect of the expert evidence – that relating to the practice of "encouraging" a patient to share information with family members – as a basis for identifying wrongful behaviour on the part of Dr. Watters. Respondents say that at their various meetings between 1970 and 1974, Dr.

Watters failed to encourage Frank sufficiently to share information on the diagnosis with Audrey and members of the Sacks’ family. Initially, Dr. Watters told Frank of the importance of sharing the information, but later he did not. In paragraph [73], the judge refers to expert evidence from Dr. Rosenblatt indicating that, in general, patients are encouraged by physicians to share information with other family members. The judge referred to a physician’s "obligation to encourage the parents to share the genetic implications with the other members of the extended family". At paragraph [90], the judge noted Dr.

Watters’ testimony where he says he did not further encourage Frank because he thought Dr. Fitch would take that responsibility. Respondents say this was one of the steps that Dr. Watters failed to take to ensure that Edythe was informed. [ 120 ] It is striking that the judge chose not to designate more explicitly this "failure to encourage Frank" as a fault, notwithstanding his criticism of the doctor's conduct. Moreover, at several instances in his reasons, he observed, quite rightly, that some encouragement was in fact given (paragraphs [28] and [30]). Reading Dr.

Rosenblatt’s expert evidence of the practice of encouraging family members to share information – he speaks of a "process" of sharing information – one senses something less than a norm grounding an obligation upon which the liability of a physician to third parties can rest.

Indeed expert Bartha Knoppers testified that it was not a standard in the 1970s to encourage the parent of a child-patient to disclose information to at-risk relatives. [ 121 ] To my mind, the encouragement that the doctor might be said to owe to Frank, as the patient's representative, is best analyzed as an aspect of the "duty to inform" the patient of all the relevant aspects of his or her medical condition. [23] This duty is said to reflect the law's concern for patient autonomy and self-determination.

It applies not just to allow a patient to arrive at informed consent to treatment, but also to understand how a diagnosis affects his or her life following treatment. By fully informing Frank of Corey's condition, Dr.

Watters allowed the father, as the patient's representative, to have the information he needed to acquit whatever duty was his to share information with others that he thought appropriate or felt obliged to share. [ 122 ] Once Frank was given the information, including a sense of the risk that other family members might face as a result of the sex- linked character of the disorder with which Corey had been diagnosed, Dr. Watters had fulfilled his obligation to inform his patient.

Assuming the information was properly communicated by the doctor and understood by the patient, that fact in itself constituted an "encouragement" for the patient's representative to act, according to the obligations – moral and otherwise – that may or may not be incumbent on him. The "failure to encourage" is a weak basis upon which a fault of the doctor should rest beyond the failure to inform his or her own patient correctly, especially in the absence of a solid basis for founding the doctor’s duty to inform third-party relatives.

To my mind, it cannot, on its own and in the absence of a plain standard of medical practice, be the basis for civil liability of Dr. Watters to Marcy and Andrew in this case. [ 123 ] But even if this failure to encourage Frank were a fault, the outcome of the appeal cannot turn on this point. As I will discuss below, the evidence suggested strongly that whatever encouragement Frank received or should have received – and there is no doubt he received some – he was disinclined to contact the Sacks’ family.

There was no causal connection between that failure and Marcy and Andrew’s loss. [ 124 ] Lastly, the judge decided, in the event there was a duty of confidentiality, that Dr. Watters’ omission to seek approval from Corey’s father Frank to inform Edythe and Beverly was a fault under the general rules of civil liability. Certainly Dr. Watters could have asked Frank to be relieved from his duty of confidentiality in order to inform the other relatives.

But as the judge himself suggests, the omission to seek such permission is only a civil wrong "[i]n light of his obligation to inform Edythe and Beverly" (paragraph [104]). As noted above, Edythe and Beverly had no such entitlement to be informed by Dr. Watters according to the standards of the profession and, as a result, he cannot be held to account for failing to seek permission to inform them.

b) Causation [ 125 ] About a year after his birth in 2002, Jacob Trossman was diagnosed, by molecular testing, as suffering from PMD. In 1971, Dr. Watters had clinically diagnosed Corey Carin with Plott’s Disease and, by extension, had written with Dr. Fitch in 1973 that it was likely that Edythe’s sons died of the same disorder. Marcy and Andrew claim that the pecuniary and non-pecuniary losses they suffered as a result of Jacob’s birth with PMD were caused by Dr.

Watters’ failure to take reasonable steps to ensure that Edythe and Beverly were informed of the risks to them associated with the Plott’s Disease diagnosis in the early 1970s. [ 126 ] Assuming, for the purposes of discussion, that Dr. Watters’ conduct thirty years earlier was indeed a fault, was the respondents’ loss caused by that conduct?

[ 127 ] At trial, the respondents had to prove, on the balance of probabilities, that the Dr. Watters’ omissions meant that Marcy White did not take steps to avoid Jacob’s birth. [ 128 ] The respondents argued that Marcy would have terminated the pregnancy in 2002 had she known of the diagnosis made in 1971. Since the failure to inform her of the diagnosis can be imputed to Dr. Watters, the doctor’s conduct was the cause of her loss. The judge agreed. [ 129 ] There are three major links in this causal chain: (

i) Firstly, it must be established that Dr. Watters failed to take reasonable measures to inform Edythe or Beverly of his clinical diagnosis that the women in the family were at risk of being carriers of the gene that is responsible for Plott’s Disease. The judge held that it was so established.

As noted, I shall assume this to be correct for the purposes of analyzing whether causation was otherwise proven; (ii) Secondly, it must be established that had Edythe known of the diagnosis, she would have shared it with her daughter Beverly who, in turn, would have shared the information with her daughter Marcy when she was old enough to understand the gravity of this news. (Alternatively, it could of course be Edythe who, at the appropriate moment, told her granddaughter Marcy directly or Beverly, having been informed by Dr. Watters or someone else, who did the same).

The judge held this to be the case, availing himself of the rules on presumptions of fact which I shall discuss below; (iii) Thirdly, it must be shown that had Marcy been apprised of Dr. Watters’ diagnosis that Corey had Plott’s Disease, or at least that Edythe was a carrier of that disease, she would have terminated the pregnancy by therapeutic abortion such that Jacob would not have been born. If Jacob had not been born, the respondents would not have suffered their losses.

This is the contentious link in the causal chain. [ 130 ] Proving causation in this case, based on the hypothetical scenario of what would have happened had Edythe or Beverly learned of Dr. Watters’ diagnosis, is made difficult by the passage of time. Several key persons were not available to testify at trial on causation, including Frank and Dr. Fitch. Edythe herself did not testify at trial, although she was examined on discovery.

Proof was made more complicated still by the fact that the judge decided that informing Edythe or Beverly of the risks associated with his diagnosis to members of the family could be done without violating the duty of confidentiality owed to Corey. This meant that the information that Edythe or Beverly had to convey to Marcy was limited to the diagnosis of Plott’s Disease made by Drs. Watters and Fitch in respect of the illness of the Sacks' boys, gleaned from their 1940s medical charts. Accordingly, Edythe would have to convince Marcy that she should terminate her pregnancy without the compelling account of Dr.

Watters' direct diagnostic observations of Corey from the early 1970s. [ 131 ] In order to overcome these difficulties, the judge relied in part on presumptions of fact to hold that the respondents had met their burden of establishing causation. He decided to infer certain unknown facts from known facts, as presumptions, where he was on the view that those presumptions might be considered serious, precise and concordant (articles 2846, 2849 C.C.Q.).

He explained his reliance on presumptions in broad terms: "[t]he Court therefore makes whatever presumptions of fact are necessary in order to hold that the faults of Drs. Watters and Fitch were the legal cause of the damages suffered by the Trossmans" (paragraph [182]). [ 132 ] For example, the judge invoked a presumption of fact in respect of the second link in the chain of causation.

While it is an unknown fact whether Edythe would have told Beverly about her sons' diagnosis of Plott’s Disease had she alone been told, the judge presumed it to be so, based on the known fact that Edythe and Beverly had a close mother-daughter relationship. He extended that presumption to explain his finding that Marcy would have been informed. The judge accepted evidence that the women in this family were close and continue to be close. He therefore presumed that had Edythe been informed by Dr.

Watters of the risk associated with his diagnosis for women of child-bearing years in the family, Edythe would have told Beverly. Had Edythe and Beverly known of the risk, one or another of them would have informed Marcy at the appropriate moment in Marcy’s adult life. I see no error in this presumption because it appears serious, precise and concordant in the circumstances. [ 133 ] The first two steps in the causal connection may thus be taken to be established: first, I am assuming that Dr. Watters did not take steps to ensure that Edythe was informed of h

[…]