2010 NBCA 83, 2010 NBCA 83

COURT OF APPEAL OF NEW BRUNSWICK 39-10-CA DR. P.E. NEIL APPELLANT DOCTEUR P.E. NEIL APPELANT - and - - et - PAMELA LODGE RESPONDENT PAMELA LODGE INTIMÉE Dr. Neil v. Lodge, 2010 NBCA 83 D r Neil c.

Lodge, 2010 NBCA 83 CORAM: The Honourable Chief Justice Drapeau The Honourable Justice Deschênes The Honourable Justice Robertson CORAM : L’honorable juge en chef Drapeau L’honorable juge Deschênes L’honorable juge Robertson Appeal from a decision of the Court of Queen's Bench: February 24, 2010 Appel d’une décision de la Cour du Banc de la Reine : Le 24 février 2010 History of Case: Historique de la cause : Decision under appeal: 2010 NBQB 63 Décision frappée d’appel : 2010 NBQB 63 (CanLII) , 2010 NBBR 63 Preliminary or incidental proceedings: Court of Queen’s Bench: 2009 NBQB 24 2009 NBQB 332 Procédures préliminaires ou accessoires : Cour du Banc de la Reine : 2009 NBQB 24 (CanLII) , 2009 NBBR 24 2009 NBQB 332 (CanLII) , 2009 NBBR 332 Appeal heard: October 15, 2010 Appel entendu : Le 15 octobre 2010 Judgment rendered: November 25, 2010 Jugement rendu : Le 25 novembre 2010

Counsel at hearing: For the appellant: Rodney J. Gillis, Q.C. and John C. Gillis For the respondent: Maria Henheffer, Q.C. and Nadia M. MacPhee Avocats à l’audience : Pour l’appelant : Rodney J. Gillis, c.r. et John C. Gillis Pour l’intimée : Maria Henheffer, c.r. et Nadia M. MacPhee THE COURT The appeal is allowed and a new trial is ordered with respect to the action against the appellant, each side to bear its own costs. LA COUR Accueille l’appel et ordonne la tenue d’un nouveau procès pour ce qui concerne l’action engagée contre l’appelant. Chaque

partie doit supporter ses propres dépens. The following is the judgment delivered by THE COURT [ 1 ] In the underlying action, the respondent, Pamela Lodge, sought damages against her personal physician, two pathologists and a hospital in the Province of Newfoundland and Labrador, alleging malpractice that resulted in the malignant melanoma from which she suffered in the mid-1990s to go untreated until 2001. In particular, Ms.

Lodge contended both pathologists were negligent in failing to diagnose her malignant melanoma, and it was her related complaint that these failures occasioned a significant delay in treatment, which, in turn, brought about pain and suffering as well as losses and expenses. The trial judge dismissed the action against Ms. Lodge’s personal physician, but allowed it against the two pathologists, Dr. A.M. Rashid and Dr. P.R. Neil. He also found the hospital vicariously liable for their negligence (see Pamela Lodge v. Dr. Edward Fitzgibbon, Dr. P.R. Neil, Dr. A.M.

Rashid, Western Health Care Corporation, doing business under the name and style of Western Memorial Regional Hospital , 2010 NBQB 63 , 356 N.B.R. (2d) 100 ). [ 2 ] While neither Dr. Rashid nor the hospital contest the judgment rendered against them, Dr. Neil appeals, arguing for reversal, inter alia , on the grounds that the quality of the professional services he rendered in 1996 was assessed by reference to a standard of care far more onerous than what he claims was the then commonly accepted practice among pathologists. We have been advised by counsel for Dr.

Neil that his concern is shared by other pathologists. [ 3 ] Just as noteworthy, Ms. Lodge takes no position regarding the sustainability of the judgment against Dr. Neil, having secured, in exchange, his abandonment of the ground of appeal that challenged the trial judge’s finding on causation. Of course, and equally significantly, Ms. Lodge expects full recovery of her damages, once quantified, from Dr. Rashid and the hospital where he was employed.

While both sides agree intervention on appeal is impermissible barring reversible error, the precedential value of this decision may rightly be viewed as somewhat diminished by the lack of any oral submission in support of the judgment under appeal. [ 4 ] Be that as it may, under the practice invoked as a ground of defence, a pathologist tasked with diagnosing a lesion from the area of a previous excision (Dr. Neil in 1996) would have been justified in confining his or her assessment of the first lesion to the diagnosis of the pathologist who examined it (Dr. Rashid in 1995).

After concluding the correct diagnosis of the 1995 lesion was malignant melanoma and the correct diagnosis of the 1996 lesion was recurrent malignant melanoma, the trial judge found the

practice mentioned above was negligent. In his view, the appropriate standard of care in 1996 required Dr. Neil to microscopically examine the 1995 lesion and to formulate his own diagnosis of that lesion. [ 5 ] In ter Neuzen v. Korn , 1995 CanLII 72 (SCC) , [1995] 3 S.C.R. 674 , [1995] S.C.J.

No. 79 (QL) , the Court endorsed the proposition that, in medical malpractice cases, an accepted practice “is open to censure by [the trier of fact] (no expert testimony required), at any rate in matters not involving diagnostic or clinical skills, on which an ordinary person may presume to pass judgment sensibly” (para. 40). The trial judge was satisfied the quoted statement allowed him to “censure” the practice invoked by Dr. Neil in answer to Ms. Lodge’s charge of negligence.

With respect, we do not share the trial judge’s certitude on point: he may be right, but he could be wrong. [ 6 ] In that regard, we would simply record that it is only in the clearest of cases that judges are at liberty to apply their perception of “common sense” to label negligent a commonly accepted medical practice (see Comeau v. Saint John Regional Hospital , 2001 NBCA 113 , 244 N.B.R. (2d) 201 ), and the case at hand may, arguably, lie outside that “exceptional” category ( see Nattress v. Weber , 2010 ABCA 64 , [2010] A.J. No. 424 (QL) , leave to appeal denied [2010] S.C.C.A. No. 159).

At any rate, and more pertinently for our present purposes, judicial intrusion into the process of revision and modification of professional medical standards should be undertaken only where it is absolutely necessary to resolve the dispute submitted for adjudication. That is particularly so in a case, such as the present one, where the pathologist invoking what he claims was the generally accepted practice at the time of his involvement actually went well beyond its minimal requirements. [ 7 ] As we understand the record, Dr. Neil did not limit himself to Dr. Rashid’s diagnosis of the 1995 lesion.

He actually acquainted himself with Dr. Rashid’s full report, which can be read, at least by a pathologist, as indicating that serious consideration was given to the hypothesis of malignant melanoma before the judgment call was made against that conclusion as the primary diagnosis (in the context of a differential diagnosis). In addition, Dr. Neil microscopically examined the slide of the 1995 lesion, albeit perhaps with a limited purpose in mind, and he did not discern what at least one expert testified at trial were features pointing to malignant melanoma. [ 8 ] Having resolved the issue of Dr.

Neil’s liability on the basis of his failure to make his own diagnosis of the 1995 lesion, the trial judge did not determine whether he had been negligent, as alleged in the Statement of Claim, in carrying out the steps he actually took in reaching his diagnosis in 1996 . In our respectful judgment, the trial judge should have made that determination before considering “censure”. [ 9 ] We reverse on that basis, and order a new trial on the issue of Dr. Neil’s liability. In the circumstances, the parties will bear their own costs. _____________________________________ J.

ERNEST DRAPEAU, CHIEF JUSTICE OF NEW BRUNSWICK ______________________________________ ALEXANDRE DESCHÊNES, J.A. _______________________________________ J.T. ROBERTSON, J.A