Kirby v. Raman, 2015 NLCA 48

Date: 20151026 Docket: 15/12 Citation: Kirby v. Raman , 2015 NLCA 48 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: SIMON DAVID KIRBY FIRST APPELLANT AND: VICTORIA LOUISE JAMIESON SECOND APPELLANT AND: HANNAH LOUISE KIRBY and ETHAN HARRIS KIRBY, minors, by their Guardian ad litem, Victoria Louise Jamieson THIRD APPELLANTS AND : KALYANAPURAM RAMAN RESPONDENT Coram: Welsh, Rowe and White JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (G) 200601T0814 (2014 NLTD(G) 154) Appeal Heard: September 22 and 23, 2015 Judgment Rendered: October 26, 2015 Reasons for Judgment by Rowe J.A.

Concurred in by Welsh and White JJ.A. Counsel for the First, Second and Third Appellants: Chesley Crosbie Q.C. and Jessica Dellow Counsel for the Respondent: Peter Browne Q.C. and Kelly Hopkins Rowe J.A.: [ 1 ] This is an appeal from a decision of a judge of the Trial Division dismissing an action for medical malpractice. [ 2 ] In early 2004, Dr. Simon Kirby, one of the appellants, was practicing as a surgeon. (The other appellants derive their claims from Dr. Kirby.) [ 3 ] For several days before January 24, 2014, Dr. Kirby had not slept well, nor did he feel well. On the morning of Saturday, January 24, Dr.

Kirby’s wife, Victoria Jamieson, found him lying on the bathroom floor. He had severe stomach pain. [ 4 ] Dr. Kirby worked at St. Clare’s hospital. He called there and enquired which physician was on call; he was told that it was Dr. Kalyanapuram Raman, the respondent. Dr. Kirby contacted Dr. Raman; they agreed to meet at St. Clare’s Emergency Department. [ 5 ] Dr. Raman did a history and a physical examination. The two physicians discussed Dr. Kirby’s condition and agreed they thought he had a peptic ulcer, i.e. an ulcer in the stomach or the first part of the small intestine, the duodenum. [ 6 ] Dr.

Raman and Dr. Kirby discussed a procedure called an OGD (an esophagogastroduodenoscopy), also known as an endoscopy. In this procedure a thin scope with a light and camera at its tip is moved down the esophagus to examine the upper digestive tract, i.e. the stomach and duodenum. Dr. Kirby requested sedation for the procedure. Dr. Kirby signed a consent form for the OGD. More will be said below regarding consent. [ 7 ] Dr. Kirby was given demerol (a pain killer) and gravol (a drug to treat nausea). In preparation for the OGD, Dr.

Kirby was given diazemuls, a drug used to relieve muscle spasms and provide sedation before a medical procedure. [ 8 ] Dr. Raman performed the OGD on Dr. Kirby, assisted by Nurse Rumsey. During the OGD, Dr. Raman examined the stomach and duodenum. He located an ulcer. He took a biopsy, i.e. the removal of tissue for examination. He sought to take a further biopsy, but terminated the OGD because of Dr. Kirby’s response to the OGD (which will be dealt with further below). [ 9 ] After the OGD, Dr. Raman admitted Dr. Kirby to the hospital. The next day Dr.

Kirby was given a CT (computer tomography) scan of his head and abdomen. (A CT scan is a diagnostic procedure that uses x-rays to provide detailed images of structures in the body.) Dr. Raman ordered the CT scan of the head to see if Dr. Kirby had a brain tumor. Following the CT scan (on January 25), Dr. Kirby was discharged from hospital and returned home. [ 10 ] On the evening of January 25, Dr. Kirby was experiencing discomfort in his neck and a headache. He had a seizure. Dr. Kirby was taken by ambulance to the Emergency Department of the Health Sciences Complex.

On his arrival, he had a more serious seizure. [ 11 ] Another CT scan was done of Dr. Kirby’s head. This showed a subarachnoid hemorrhage, i.e. a bursting of a blood vessel in the brain. A subarachnoid hemorrhage is a serious condition that can result in brain injury or death. [ 12 ] An operation was performed on Dr. Kirby to address the hemorrhage and to relieve the effects on the brain. As well, he underwent a cerebral angiogram.

This involves the insertion of a catheter to inject dye into the cerebral artery; an x-ray is taken of the artery containing the dye. [ 13 ] The angiogram indicated that there was an arterial dissection in the right vertebral artery. A vertebral artery dissection is a flap- like tear of the inner lining of the artery located in the neck that supplies blood to the brain. The dissection led to the hemorrhage. [ 14 ] On January 26, Dr. Kirby was air-lifted to Halifax for further treatment. Following surgery in Halifax, Dr. Kirby returned to St. John’s.

He was impaired in certain motor functions and his speech; he undertook physiotherapy. He has been unable to resume his practice as a surgeon. [ 15 ] In light of this, Dr. Kirby undertook studies to become a pathologist. He qualified as a pathologist in 2013. [ 16 ] Dr. Kirby has made a partial recovery, but continues to suffer impairment of certain motor functions and his speech. His loss of income was considerable. His personal life was severely disrupted. [ 17 ] Dr. Kirby brought an action for medical malpractice against Dr. Raman. Dr.

Kirby’s claim set out four causes of action: (1) battery, (2) negligence, (3) breach of contract, and (4) breach of fiduciary duty.

[ 18 ] Following a lengthy trial, the trial judge dismissed Dr. Kirby’s action. Dr. Kirby appeals that decision. [ 19 ] The theory of the appellant’s case is that:

(1) Dr. Raman did not have Dr. Kirby’s consent to perform the OGD; (2) even if Dr. Kirby did consent, Dr. Raman was negligent in performing the OGD and in related care; (3) the dissection and hemorrhage were caused by the OGD. [ 20 ] The theory of the respondent’s case is that:

(1) Dr. Kirby consented to Dr. Raman performing the OGD;

(2) Dr. Raman was not negligent in performing the OGD and in related care; (3) in any case, the dissection and hemorrhage were not caused by the OGD. [ 21 ] The trial judge decided in favour of the respondent on each of the three key elements above. ISSUES [ 22 ] The appellant set out issues relating to: (1) the conduct of the OGD and Dr. Kirby’s response to it; (2) standard of care; (3) consent; (4) causation; (5) battery; and (6) damages. ANALYSIS: CAUSES OF ACTION [ 23 ] The appellant emphasized that its “principal” cause of action was battery.

Battery is an intentional tort; it involves unconsented touching of the plaintiff by the defendant. In the medical context it can arise where a procedure is undertaken without consent. If Dr. Raman performed an OGD on Mr. Kirby without the latter’s consent, then Dr. Raman would be liable in battery and damages would be payable for compensable harm that Dr. Kirby suffered as a result of the OGD. [ 24 ] In order for Dr. Kirby to recover in battery for the consequences of the dissection and hemorrhage, Dr.

Kirby must show that the OGD caused the dissection and the hemorrhage. [ 25 ] Thus, there are three main issues relevant to battery: (1) consent, (2) causation, and (3) the resulting extent of the damages. [ 26 ] A further cause of action is negligence.

As there is no battery if there is consent, negligence becomes the principal cause of action if consent was given. [ 27 ] The elements of negligence have been described using different terms, but can generally be stated as follows: (1) duty of care, (2) standard of care and whether it was breached, (3) causation, (4) scope of compensable harm, and (5) damages. [ 28 ] On the facts of this case, the duty of care by Dr. Raman as the physician to Dr. Kirby as his patient is clear.

Given the outcome regarding standard of care, breach and causation, it will not be necessary to deal with the scope of compensable harm or with damages.

[29] Thus, in this analysis, the two key issues relevant to negligence are: (1) standard of care, and whether it was breached, and (2) causation. [30] To recap, the issue of consent arises as regards battery. The issue of standard of care arises as regards negligence. The issue ofcausation arises as regards both negligence and battery (if Dr. Kirby is to recover damages arising from the dissection and thehemorrhage). [31] The appellant also pleaded breach of contract and breach of fiduciary duty. Regarding breach of contract, what could thecontract have been other than that Dr.

Raman would competently and diligently care for Dr. Kirby? But issues of competence anddiligence are better dealt with in the context of negligence. As for breach of fiduciary duty, it was not set out in a manner distinct frombattery or negligence, nor is it clear that any such separate basis for liability could apply. CONSENT [32] The key testimony concerning consent was given by Dr. Kirby and Dr. Raman. The trial judge reviewed their testimony indetail. At para. 283 of his decision, he concluded: Based on Dr. Raman’s evidence of his detail of informed consent, Nurse Rumsey’s evidence of Dr.

Raman’s usual practice and care, thecommon choice of Dr. Kirby and Dr. Raman to proceed with endoscopy and Dr. Kirby’s familiarity generally with the procedure, I amsatisfied that details of the risks as presented by Dr. Raman to Dr. Kirby and Ms. Jamieson are accurate and reasonable and that informedconsent in these circumstances was present. I would note, as well, para. 285: In my view, Dr. Raman could have but did not rely on Dr. Kirby’s initiative or Dr. Kirby’s own opinion as to endoscopy beingappropriate. I conclude, that notwithstanding, Dr. Raman chose conservatively to treat Dr.

Kirby as any other patient for the purposes ofinforming him and for obtaining consent. [33] The points argued by the appellant concerning consent are unpersuasive. [34] First, counsel for the appellant noted that, by his own testimony, Dr. Raman indicated that one (unlikely) possibility for Dr.Kirby’s severe stomach discomfort was a brain tumor. Dr. Raman testified that he did not apprise Dr. Kirby of this when Dr. Ramandiscussed the OGD procedure with him. Counsel for the appellant submitted that had Dr.

Kirby been made aware of the brain tumorpossibility, he might have withheld consent for the OGD and instead indicated that he wanted the results of the CT scan of his headbefore an OGD was undertaken. [35] With respect, this argument by counsel is implausible. Dr. Kirby was suffering from severe discomfort in his stomach. Dr.Raman’s view was that very likely this was caused by a peptic ulcer. (Dr. Kirby also shared this view.) The logical and practical courseof action was to proceed without delay to have a look in the stomach and duodenum to see if in fact there was an ulcer there.

That waswhat was done, while the more remote possibility of a brain tumor was dealt with the next day when a CT scan was taken of Dr. Kirby’shead (as well as his abdomen). [36] Second, counsel for the appellant submitted that Dr. Kirby could not have given informed consent, as he signed the consentform shortly before the OGD, by which time drugs he had received (notably demerol) would have clouded his judgment. That may becorrect, but it seems to me that consent had been effectively given several hours earlier when Dr. Raman discussed an OGD with Dr.Kirby. During that discussion, Dr. Kirby had agreed that Dr.

Raman would conduct an OGD. The demerol and gravol were prescribedand administered after that discussion. Thus, consent had been effectively given before the drugs were given to Dr. Kirby. [37] Third, counsel for the appellant submitted that even if consent was given, it was exceeded. He argued that Dr. Kirby hadconsented to a properly performed OGD (with a reasonable level of discomfort) and when the OGD was badly performed (with a highlevel of discomfort), then consent was exceeded. [38] This argument fails on two bases. As set out below, the trial judge found that Dr.

Raman performed the OGD competently andthere is no basis to set aside that finding. As well, the proposition of law set out by counsel for the appellant is unsound. Dr. Kirbyconsented to the OGD; if Dr. Raman carried out the OGD incompetently, then that would be negligence, which can give rise to liability,but does not vitiate consent. I would adopt the following passage from Laing v. Sekundiak, 2015 MBCA 72, para. 75: In Reibl [v. Hughes (SCC), [1980] 2 S.C.R. 880] the Supreme Court of Canada explained the distinctions between aclaim for battery and a claim in negligence for lack of informed consent.

In doing so, it restricted the circumstances for which a personcan succeed in a claim for battery (at pp. 890-892): … In my opinion, actions of battery in respect of surgical or other medical treatment should be confined to cases where surgery ortreatment has been performed or given to which there has been no consent at all or where, emergency situations aside, surgery ortreatment has been performed or given beyond that to which there was consent. [39] No basis has been shown to set aside the trial judge’s finding that informed consent was given. That being so, the claim basedon the tort of battery fails.

CONDUCT OF THE OGD [40] There was testimony by Dr. Raman, Nurse Rumsey and Ms. Jamieson on what happened during the OGD. (Dr. Kirby does not

recall the OGD as a result of the sedating drugs). As well, there was testimony by experts for the appellant and respondent as to whether what occurred breached the standard of care. Understandably, the appellant’s experts based their opinions on what the appellant alleges factually to have occurred, while the respondent’s experts based their opinions on what the respondent alleges factually to have occurred. [ 41 ] The evidence by Dr. Raman and Nurse Rumsey was that the OGD went normally, albeit Dr. Raman ended it before he could obtain a second biopsy, as Dr.

Kirby was becoming increasingly uncomfortable with the procedure. [ 42 ] The evidence by Ms. Jamieson is that, while she was not in the room where the procedure was performed, she was within hearing distance and the sounds she heard from the treatment room led her to conclude that the OGD went badly, i.e. that throughout Dr.

Kirby was gagging and urging in a sustained and severe way. [ 43 ] The trial judge’s findings regarding how things went during the OGD are relevant in two ways: (1) an incompetently performed OGD would constitute a breach of the standard of care; and (2) violent head movements and/or blood pressure “spikes” caused by a severe and sustained bad response by Dr. Kirby to the OGD would tend to provide a factual basis for the plaintiff’s expert opinions on causation; by contrast, a “normal” OGD response by Dr.

Kirby would tend to undercut any factual basis for the plaintiff’s expert opinions that the OGD caused the dissection and the hemorrhage. [ 44 ] Thus, the findings of fact concerning the conduct of the OGD are important for both battery (causation) and negligence (standard of care and causation). [ 45 ] The trial judge’s findings relevant to this are as follows: [265] In order to accept the underlying factual basis for the alleged improperly administered endoscopy, it is necessary to weigh the evidence of Ms. Jamieson. She is a nurse. She was present nearby but had not witnessed the endoscopy.

Her evidence is that of her hearing of the sounds and her inferences attendant. [266] Dr. Kirby, naturally, cannot recall the procedure as one of the effects of the sedation is to eliminate recall. [267] On balance, I cannot be satisfied that the evidence of Ms. Jamieson is reliable to the extent of the inferences suggested being drawn. She was dismayed and upset by these sounds and their persistence. [268] There are explanations for the noises that emanated from the endoscopy suite. [269] Air was pumped into the stomach and had to escape through the mouth with unpleasant sound.

Episodes of retching were incident to the process on entry of the throat and esophagus and on entry of the muscle at the duodenum. Suction of water and mucus was ongoing with attendant noise. [270] The confirmation of Ms. Jamieson’s concerns appears to come in the statement of Dr. Raman to her on her entry to the endoscopy suite (that he did not handle the procedure well). [271] Dr.

Raman has explained that this meant that he was unable to biopsy to his satisfaction as the urging and gagging limited him to one biopsy. [272] Nurse Rumsey placed this endoscopy in the second level of four levels of increasing discomfort. This was done by her at the time of completion of the procedure in the endoscopy suite. [273] I can accept that Ms. Jamieson was reasonably upset by these sounds. However, with the clear and unambiguous explanations of Nurse Rumsey, I cannot accept the inferences proposed by Ms. Jamieson as fact. [274] In my view, I have to accept that the procedure induced responses from Dr.

Kirby that were not abnormal and within that norm gave rise to Dr. Raman’s decision to abort with the determinations and findings then available to him. [275] I cannot accept, as Ms. Jamieson suggests, that there was gagging throughout and the procedure was of such a nature as to permit the conclusions proposed by the Plaintiff that it was violent, excessive and inhumane. [276] On the whole of the evidence of the endoscopy procedure and with the assessment I have made of the evidence of Ms.

Jamieson and Nurse Rumsey, I cannot conclude the conduct of this endoscopy was outside the norm. [277] I accept that there was gagging, but incline to the evidence that there was limited discomfort and that it was an episodic period concurrent with other episodic features of belching and suctioning not causing discomfort. [278] On the whole of the evidence, I cannot conclude that the duration of the endoscopy causes it to stand out as a marked departure from durations disclosed on the evidence as to warrant it becoming suspect.

In this regard, I accept that the assessment of the quality of execution of the endoscopy should not be based upon its duration and that it is the quality and not the duration that is of significance. [279] In the end, I accept on the evidence that Dr.

Raman’s ending of the endoscopy after obtaining at least one biopsy was consistent with a prudent and understandable outcome in the circumstances. [ 46 ] Counsel for the appellant acknowledged that for this Court to set aside these findings of fact we would have to be persuaded that the trial judge had made palpable and overriding errors in his findings. [ 47 ] Counsel for the appellant argued that the trial judge wrongly attributed to Nurse Rumsey a recollection of events that, by her

testimony, she did not have. This is not persuasive. The trial judge noted when Nurse Rumsey recalled the events in question (herrecollection was limited) and when she spoke about the OGD procedure in a general sense. The latter included her testimony thatseemingly disturbing sounds occur when an OGD proceeds normally. [48] Counsel for the appellant submitted that an adverse inference should have been drawn from the failure of Nurse Rumsey tocomplete the portion of the medical chart that relates to the period after the OGD.

In particular, this should have been used to discountthe weight given to the entry by Nurse Rumsey on the chart to the effect that during the OGD Dr. Kirby’s response was in the mid-rangeof tolerance, neither low nor high. With respect, I fail to see how the absence of charting post-procedure undermines the weight that canbe given to what was charted during the procedure. In this regard, counsel for the appellant suggested that Nurse Rumsey (and Dr.Raman) left the post-procedure chart blank as part of a cover-up (my choice of words) for a procedure that had gone badly.

The trialjudge did not accept such a speculative view. I see no basis to set aside the trial judge’s assessment of this. [49] Counsel for the appellant argued that the trial judge failed to have proper regard to “admissions” by Dr. Raman that Dr. Kirbyhad not tolerated the OGD well. It was submitted that such admissions were made to Ms. Jamieson and Dr. Hoppe (who operated on Dr.Kirby on January 25). [50] Concerning Ms. Jamieson, the trial judge stated (in para. 75) regarding her testimony: [Ms. Jamieson] testified that she pushed open the door [to the room where the OGD had occurred] and Dr.

Raman said that they werefinishing up and that [Dr. Kirby] had not tolerated it well. [51] Concerning Dr. Hoppe, counsel for the appellant referred to her evidence in which she recalled a conversation with Dr. Ramanin which he had said “something about intolerance” of the OGD by Dr. Kirby. [52] This needs to be considered in light of Dr. Raman’s testimony. If Dr. Raman had testified that Dr. Kirby experienced noproblems during the OGD, then the “admissions” might well have been significant. But that was not Dr. Raman’s testimony. Rather,Dr. Raman testified that for most of the OGD Dr.

Kirby had responded normally, but as Dr. Raman was about to obtain a second biopsyDr. Kirby became intolerant of the procedure and so Dr. Raman ended it. This is consistent with the testimony of Ms. Jamieson and Dr.Hoppe as to what Dr. Raman said to them. [53] Counsel for the appellant submitted to us that Ms. Jamieson’s testimony was “clear and unambiguous” and that it was an errorby the trial judge not to have accorded it greater weight. However, the trial judge did not disbelieve Ms. Jamieson when she said that sheheard sounds that she believed indicated severe discomfort by Dr. Kirby.

Rather, the trial judge found the explanations credible that thesounds Ms. Jamieson heard were in fact consistent with a normal OGD (albeit with discomfort by Dr. Kirby shortly before Dr. Ramanended the procedure). [54] Neither individually nor considered together do the submissions of counsel for the appellant warrant this Court setting aside thetrial judge’s findings of fact concerning the OGD. Counsel for the appellant has not shown palpable and overriding error. STANDARD OF CARE [55] In ter Neuzen v.

Korn, (SCC), [1995] 3 S.C.R. 674, the Supreme Court of Canada dealt with the standard ofcare for physicians: 46 It is well settled that physicians have a duty to conduct their practice in accordance with the conduct of a prudent and diligentdoctor in the same circumstances. In the case of a specialist, such as a gynaecologist and obstetrician, the doctor’s behaviour must beassessed in light of the conduct of other ordinary specialists, who possess a reasonable level of knowledge, competence and skillexpected of professionals in Canada, in that field.

A specialist, such as the respondent, who holds himself out as possessing a specialdegree of skill and knowledge, must exercise the degree of skill of an average specialist in his field: see Wilson v. Swanson, (SCC), [1956] S.C.R. 804, at p. 817, Lapointe v. Hôpital Le Gardeur, (SCC), [1992] 1 S.C.R. 351, at p. 361, andMcCormick v. Marcotte, (SCC), [1972] S.C.R. 18. 47. It is also particularly important to emphasize, in the context of this case, that the conduct of physicians must be judged in the lightof the knowledge that ought to have been reasonably possessed at the time of the alleged act of negligence.

As Denning L.J. eloquentlystated in Roe v. Ministry of Health, [1954] 2 All E.R. 131 (C.A.), at p. 137, “[w]e must not look at the 1947 accident with 1954spectacles”. That is, courts must not, with the benefit of hindsight, judge too harshly doctors who act in accordance with prevailingstandards of professional knowledge. This point was also emphasized by this Court in Lapointe, supra, at pp. 362-63: ... courts should be careful not to rely upon the perfect vision afforded by hindsight.

In order to evaluate a particular exercise of judgmentfairly, the doctor’s limited ability to foresee future events when determining a course of conduct must be borne in mind. Otherwise, thedoctor will not be assessed according to the norms of the average doctor of reasonable ability in the same circumstances, but rather willbe held accountable for mistakes that are apparent only after the fact. [56] The appellant takes the position that Dr. Raman was negligent in two general ways: (1) the OGD was negligently performed; (2) in addition, Dr.

Raman negligently failed to diagnose the dissection and to act so as to prevent the hemorrhage. [57] Regarding the OGD, the trial judge found that it was carried out competently. As set out above, there is no basis to set asidethat conclusion. [58] Before this Court, counsel for the appellant argued that Dr. Raman had breached the standard of care by failing to diagnose thedissection and then act so as to prevent the hemorrhage. He also stated that the trial judge had failed to decide the issue.

[59] A careful reading of the trial judge’s extensive reasons (131 pages) discloses that he did not state a conclusion on Dr. Raman’scare of Dr. Kirby apart from the OGD. The reason for this becomes clear when one reviews the appellant’s “closing brief” (95 pages). Negligence is dealt with from pages 49-55. At no point is it made clear that Dr. Raman is alleged to have been negligent in his care ofDr. Kirby other than as part of a sequence of actions of which the OGD was a key component. [60] That said, the trial judge did address, by implication, Dr. Raman’s conduct following the OGD when he wrote: 303.

On his discharge [on January 25], Dr. Kirby was communicating positive symptoms to Dr. Raman. 304. I cannot conclude any basis upon which Dr. Raman would have to have been expected to consider that dissection had taken placesubsequent to the [OGD] or discharge. [61] In any case, the key allegation underpinning the appellant’s position is that Dr. Kirby’s headache and neck stiffness should havecaused Dr. Raman to undertake further tests (beyond the CT scan of Dr. Kirby’s head on January 25).

In the appellant’s view, these testsshould have included an MRI (magnetic resonance imaging, another means of getting images of structures in the body) and a lumbarpuncture (also called a spinal tap; this involves the insertion of a needle into the spinal cord and the taking of a sample of cerebrospinalfluid). As well, in the appellant’s view the results of these tests should have given rise to a diagnosis of an incipient dissection by Dr.Raman; based on this Dr.

Raman should have acted so as to avert the hemorrhage. [62] Counsel for the appellant did not make plain to the trial judge this theory of his case, nor did he persuade the trial judge that Dr.Raman was negligent in this way. [63] If one accepts the position put to us by counsel for the appellant that the trial judge should have, but did not, decide whether Dr.Raman was liable in negligence on this basis, then it would fall to this Court to decide the issue. [64] Counsel for the appellant submitted that Dr. Raman was negligent by: (1) ordering only a CT scan of Dr.

Kirby’s head onJanuary 25 and by failing to order, as well, an MRI and a lumbar puncture; (2) failing to diagnose an incipient dissection; and (3) failingto take steps to avert the hemorrhage. To succeed in this, counsel for the appellant would have to prove on a balance of probabilities thata competent and diligent physician in Dr. Raman’s circumstances should have foreseen the possibility of the dissection and thehemorrhage and, based on this, he should have ordered an MRI and a lumbar puncture, then he should have made an accurate diagnosis,and then he should have taken steps to avert the harm.

Neither of those was shown. Accordingly, even if this Court were to arrive at itsown conclusion, the appellant’s claim for negligence on this basis would fail. [65] Given the conclusion that Dr. Kirby consented to the OGD, the tort of battery fails. Given the conclusion that Dr. Ramancompetently and diligently carried out the OGD and related treatment, the tort of negligence fails. Accordingly, it is not necessary toconsider the issue of whether the OGD caused the dissection and the hemorrhage.

That said, causation was the subject of extensiveevidence, it was dealt with in detail in the trial judge’s decision and it was argued at length before this Court. Accordingly, I will dealwith it. CAUSATION [66] I would adopt the statement of the law concerning causation set out by the respondent in his factum: 99. In medical malpractice cases, the question of causation is often not straightforward.

In order to establish liability for the allegeddamages, the Plaintiff must prove, on the balance of probabilities, that either: ● but for the defendant’s actions, the Plaintiff’s injuries would not have occurred; or ● the Defendant’s actions materially contributed to the Plaintiff’s injuries. 100. There are two seminal cases which discuss the principle of causation in the context of liability for medical negligence. They areSnell v. Farrell (SCC), [1990] 2 S.C.R. 311 and Athey v. Leonati (SCC), [1996] 3 S.C.R. 458.

One canextrapolate the following general principles from these decisions: ● Causation is established where the plaintiff proves to the civil standard on a balance of probabilities that the defendant caused orcontributed to the injury. ● The general, but not conclusive, test for causation is the “but for” test, which requires the plaintiff to show that the injury wouldnot have occurred but for the negligence of the defendant. ● The “but for” test is unworkable in some circumstances, so the courts have recognized that causation is established where thedefendant’s negligence “materially contributed” to the occurrence of the injury.

A contributing factor is material if it falls outside the deminimis range. ● The plaintiff must prove that the defendant’s tortious conduct caused or contributed to the plaintiff’s injury. The causation test isnot to be applied too rigidly. Causation need not be determined by scientific precision. A question of causation is “essentially a practicalquestion of fact which can best be answered by ordinary common sense”. Although the burden of proof remains with the plaintiff, insome circumstances an inference of causation may be drawn from the evidence without positive scientific proof. 101.

In Clements (Litigation Guardian of) v. Clements, 2012 SCC 32 , [2012] 2 S.C.R. 181, the Supreme Court of Canadaconfirmed the primary “but for” test of causation and aptly summarized the present state of the law as follows: [8] The test for showing causation is the “but for” test. The plaintiff must show on a balance of probabilities that “but for” thedefendant’s negligent act, the injury would not have occurred. Inherent in the phrase “but for” is the requirement that the defendant’s

negligence was necessary to bring about the injury ― in other words that the injury would not have occurred without the defendant’s negligence. This is a factual inquiry. If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against the defendant fails. [9] The “but for” causation test must be applied in a robust common sense fashion.

There is no need for scientific evidence of the precise contribution the defendant’s negligence made to the injury. [10] A common sense inference of “but for” causation from proof of negligence usually flows without difficulty.

Evidence connecting the breach of duty to the injury suffered may permit the judge, depending on the circumstances, to infer that the defendant’s negligence probably caused the loss. [11] Where “but for” causation is established by inference only, it is open to the defendant to argue or call evidence that the accident would have happened without the defendant’s negligence, i.e. that the negligence was not a necessary cause of the injury, which was, in any event, inevitable. [ 67 ] As noted above, the expert opinions concerning causation were affected, to some degree, by the factual assumptions that were made as to how the OGD went.

In general terms, the appellant’s experts expressed their opinions on the factual basis that during the OGD Dr. Kirby had experienced severe and sustained urging and gagging. By contrast, the respondent’s experts expressed their opinions on the factual basis that Dr. Kirby’s experience had been “normal” during the OGD, at least until Dr. Raman was initiating a second biopsy, when Dr. Kirby became intolerant and Dr. Raman ended the procedure. [ 68 ] In the end, two alternative views were put forward by the experts as to causation.

The appellant’s experts were of the opinion that it was more likely that severe head movements by Dr. Kirby and/or “spikes” in blood pressure during the OGD led to the dissection and the hemorrhage. The respondent’s experts were of the opinion that it was more likely that the dissection and the hemorrhage occurred independently from the OGD, from some weakness in the vertebral artery. [ 69 ] Each group of experts understood that it was possible that the dissection and the hemorrhage could have arisen in the way that was described by the other group of experts.

The fundamental difference in the conclusions of the two groups of experts related not to whether the dissection and the hemorrhage could have occurred in the way suggested by the other group of experts, but rather as to what was the likelihood of the two alternative causes of the dissection and the hemorrhage. [ 70 ] Thus, Dr. Lownie, Dr. Freeman and Dr. Gopal (the appellant’s experts on causation) said in their opinions that it was more probable that the conduct of the OGD gave rise to the dissection and the hemorrhage, while Dr. Duncan and Dr.

Leddin (the respondent’s experts on causation) said in their opinions that it was more probable that the dissection and the hemorrhage occurred independently of the OGD. [ 71 ] Counsel for the appellant urged on this Court that the trial judge had erred in his weighing of the expert evidence on causation. However, his arguments came down to this: the appellant’s experts should have been believed, while the defendant’s experts should not have been believed.

While counsel for the appellant highlighted the differences between the two groups of experts and urged on us the superiority of the views of the plaintiff’s experts, at no point did he demonstrate that the trial judge had erred in principle or that in some significant way the trial judge had misconceived the evidence. Rather, counsel for the appellant argued the merits of the competing experts’ views as if we were triers of first instance. But we are not. Nor is it our role to weigh evidence as if we were.

Rather, we must show deference to the weighing of the evidence by the trial judge, unless it is demonstrated that the trial judge erred in principle or misconceived the evidence in some significant way. Counsel for the appellant failed to demonstrate either. As such, there is no basis in law for this Court to substitute its view of the experts’ evidence on causation for that of the trial judge. [ 72 ] Counsel for the appellant advanced a further argument, that the trial judge erred in law in his application of proof on the balance of probabilities.

Counsel submitted that the trial judge, in effect, said that he could not decide what caused the dissection and the hemorrhage and that, following from this, the trial judge came to no conclusion as to the probable cause of the dissection and the hemorrhage. [ 73 ] Appellant’s counsel referred us to the following passage from St-Jean v. Mercier , 2002 SCC 15 , [2002] 1 S.C.R. 491, at paras. 55-56 : … The trial judge must assess whether the evidence supports, on a balance of probabilities, a finding of causation.

If this standard of proof is not met, the plaintiff has simply been unsuccessful in discharging his burden of proof . It is not enough to say that there are opposing medical theories on causation and that it is not up to the court to decide between them. A trial judge must reach a legal conclusion based on the scientific evidence and other evidence presented . Not to come to a definitive conclusion on a balance of probabilities amounts to an undue advantage granted to the defendant, who might simply need to come up with a plausible but contrary scientific theory in order to negative the plaintiff’s claim.

Such an approach is tantamount to an alteration of the standard of proof since the trial judge is no longer looking at which scientific theory is most probable.

It is an error of law in the analysis of causation for a trial judge to conclude that he or she does not have the authority to make a final legal determination in the face of competing theories. (Emphasis added.) [ 74 ] From the foregoing passage, it is clear that the trial judge must, on the evidence presented, reach a legal conclusion as to causation, i.e. whether or not the plaintiff has discharged the burden of proof. [ 75 ] In the context of this case this gives rise to two questions: (

a) did the trial judge make a legal finding of causation; and

(

b) if so, what was that finding? [ 76 ] I will reproduce the passage from the reasons for decision wherein the trial judge states his conclusions as to causation: [305] … I will … consider whether the Plaintiff has established, on the balance of probabilities that the endoscopy was the cause of the VAD [dissection] and intracranial bleed [hemorrhage], resulting in the damage the day following. [306] On the evidence before me, the first evidence of the probabilities is demonstrated by Dr. Kirby being prone on the home bathroom floor.

There was activity here of this need to excrete orally and from the stomach material into the toilet. The evidence as to how the excretion or elimination took place is controversial as is the material. Nevertheless, it was initially noted at the hospital by staff and Dr. Raman as vomiting though Dr. Kirby took issue with that description. In any event, this is the first evidence in this proceeding engaging the probabilities.

Naturally, in presenting his evidence and opinion, the Plaintiff saw the endoscopy itself as presenting a risk of tumor and of cranial bleed of which he should have been informed and, had he been, might well have opted for another course of treatment. That position would have to overcome: 1. The ultimate need and priority to diagnose the present source of acute abdominal pain, this being of a disabling nature; 2. Endoscopy being the most effective way to confirm peptic ulcer which both Dr. Kirby and Dr. Raman considered the most likely diagnosis; 3.

The absence medically at the time of the co-relation of VAD to endoscopy [OGD], if it had been made known to Dr. Kirby; 4. The unlikely presence of tumor in Dr. Raman’s differential diagnosis; 5. Dr. Kirby appearing to agree with Dr. Raman’s proposed course of investigation. [307] We know from the evidence that, in fact, the CT scan after the endoscopy did not disclose any tumor. [308] Notwithstanding, the endoscopy is an event engaging consideration of the probabilities. Hospitalization occurred January 24, after the endoscopy with discharge the following morning.

This period engages the probabilities but on the Plaintiff’s own position would relate it to an occurrence during endoscopy. [309] At home the evening of January 25, after discharge, there is the presentation of extreme head pain associated with loss of mobility. [310] At emergency that night of January 25, there is the ultimate event of bleed and the resulting damage which took place. [311] On the evidence before me, it is possible that the VAD engaged at home on or before January 24 and prior to admission; it is possible it occurred during the endoscopy; it is possible it occurred at home following discharge.

Caution is present in the evidence as to conclusions to be drawn about headache as symptom allowing specific conclusions. [312] I note the uncontradicted expert evidence of Dr. Eric Duncan that VAD is possible without any trauma associated. [313] I also note the uncontradicted evidence of Dr. Eric Duncan and Dr. Leddin that it is possible that Dr. Kirby was predisposed to a weakened or defective blood vessel. I have noted an observation by Dr. Lownie that the question of predisposition of Dr. Kirby to dissection was left open.

It is now determined that VADs occur from problems with blood flow within the vessel and a corresponding tear and flap within the blood vessel as it breaks down from within and accordingly, VADs are treated differently now with stents. [314] The evidence is that the prodrome for the VAD of Dr.

Kirby which resulted in the damaging bleed at the Health Sciences Centre Emergency on the night of January 25 includes the time of this being on the floor next to his home bathroom toilet on the morning of January 24, 2014. [315] On the evidence before me, I cannot conclude the endoscopy as a probable cause for the VAD which Dr. Kirby suffered. This obviously would preclude my considering it more probable than not. [316] If all of the possibilities I have noted could be probabilities of the VAD, and I have not so concluded, I cannot be satisfied that I am able to grade the possibility of one over the other.

On the whole of the evidence, I would incline to the theory of Dr. Duncan that a predisposed vessel weakness contributed to a spontaneous event. That is as well speculation. [317] Obviously, in the context of these observations, I am not able to conclude, as the Plaintiff proposes, that the endoscopy was, on the balance of probabilities, the probable cause of the VAD, that is, that it was more probable than not that the endoscopy caused the VAD. [ 77 ] It would have been better had the trial judge been more clear. But, that is not the point.

Rather, it is whether or not the trial judge on the balance of probabilities decided the issue of causation. On a careful reading of the foregoing passage, I would conclude that the trial judge: (

a) did decide the issue of causation on the balance of probabilities; and (

b) concluded that it was more likely that the dissection and hemorrhage occurred independently of the OGD, rather than as a result of it. [ 78 ] I say this having regard to the foregoing passage read as a whole, but emphasizing the following:

(1) Paras. 315 and 317 state that the OGD was not the probable cause of the dissection and the hemorrhage;

(2) Para. 316 states that it is more likely the dissection and hemorrhage occurred independently of the OGD (the trial judge refers to this as “a spontaneous event”);

(3) The closing words of para. 316 (“That is as well speculation”) are confusing, but I read them to mean that while the dissection and the hemorrhage were more likely to have occurred independently of the OGD, nonetheless it is a matter where there can be no certainty. [ 79 ] In short, the trial judge did not err in his application of the principle of proof on the balance of probabilities. [ 80 ] In

summary, there is no basis in law to set aside the trial judge’s conclusion regarding causation.

SUMMARY [ 81 ] I would summarize as follows:

(1) There is no basis to set aside the trial judge’s conclusion that Dr. Kirby consented to Dr. Raman performing the OGD. That being so, the claim based on the tort of battery fails.

(2) There is no basis to set aside the trial judge’s conclusion that Dr. Raman did not breach the standard of care. That being so, the claim based on the tort of negligence fails.

(3) Given the foregoing it is not necessary to decide the issue of causation. Nonetheless, there is no basis to set aside the trial judge’s conclusion regarding causation. That being so, on this basis as well, the torts of battery and negligence fail.

(4) The action in breach of contract is subsumed in consideration of the standard of care. However, even if the action for breach of contract were considered, it would fail as there is no basis to set aside the trial judge’s finding that Dr. Raman competently performed the OGD.

(5) The action for breach of fiduciary duty is not well-founded. However, even if it were, the findings of the trial judge concerning Dr. Raman’s conduct and his care for Dr. Kirby indicate nothing that would constitute a breach of any such duty.

(6) In light of the foregoing, it is not necessary to deal with issues raised in this appeal concerning the scope of compensable harm or damages, as there is no finding of liability.

(7) I would award costs to the respondent for this appeal for two counsel at Column III on the scale. RULING ON AUDIO RECORDINGS [ 82 ] One further matter needs to be dealt with. At the hearing of the appeal, counsel for the appellant applied to play the audio recording of a brief (about half a minute) portion of the testimony of Dr. Duncan, an expert for the respondent. The Court heard argument (the respondent opposed the application); we recessed to consider the application. Upon reconvening the chair of the panel, Justice Welsh said: We have considered counsels’ submissions on Mr.

Crosbie’s application to have a short portion of the audio recording of Dr. Duncan’s testimony heard for purposes of this appeal. We are all of the view that the application should be denied. Reasons for this conclusion will be included in the reasons for decision on the appeal. These are the reasons for our decision. [ 83 ] Counsel for the appellant argued that in order for this Court to accord proper weight to Dr. Duncan’s testimony, we should listen to a long pause between the posing of a question to him and his reply to the question.

Counsel acknowledged that the transcript accurately set out the question and the reply. [ 84 ] The assessment of credibility as part of the fact finding process is the function of the trier of first instance, reviewable on appeal on the standard of palpable and overriding error. Counsel for the appellant in his application, in effect, invited the Court to review the evidence as if we were triers of first instance. As noted above, that is not our role. [ 85 ] I do not mean to say that this Court would never listen to an audio recording of testimony.

An example of where that would be warranted is where it is alleged that the transcript is inaccurate and that only by listening to the audio recording could this Court gain an accurate understanding of what was said. But, barring exceptional circumstances, this Court should rely on the transcript and not listen to excerpts of the audio recording. [ 86 ] In circumstances where listening to part of the audio recording would be warranted, other issues would need to be dealt with, notably how much of the audio recording should be listened to, e.g. should it be all of the testimony of a given witness?

The answer may be that how much should be listened to will vary with the purpose for which the audio is being listened to. Those are issues for another day. [ 87 ] I would note that in argument, reference was made to Practice Note CAPN No. 2014-02, issued October 24, 2014, entitled “Amendments to Transcript Preparation Requirements”, notably paragraph 11 which refers to the use of audio recordings. However, this has no relevance for the matter at hand, nor does the Recording of Evidence Act , RSNL 1990,

Chapter R-7, as the Practice Note and the Act deal with other matters. CONCLUSION

[ 88 ] Accordingly, I would dismiss the appeal with costs to the respondent as set out above. ___________________________________ M. H. Rowe J.A. I Concur: ____________________________________ B. G. Welsh J.A. I Concur: ____________________________________ C. W. White J.A.