Timlick v Heywood, 2017 MBCA 7

Citation: Timlick v Heywood, 2017 MBCA 7 Date: 20170116 Docket: AI15-30-08507 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Alan D. MacInnes Madam Justice Diana M. Cameron Madam Justice Janice L. leMaistre BETWEEN : JASON TIMLICK ) R. L. Tapper, Q.C. ) for the Appellant (Plaintiff) Appellant ) ) - and - ) G. T. Campbell and ) N. M.

Watson MALCOLM TIMLICK and HEATHER ) for the Respondent TIMLICK ) ) (Plaintiffs) ) ) Appeal heard: - and - ) October 31, 2016 ) NEIL HEYWOOD ) ) Judgment delivered: (Defendant) Respondent ) January 16, 2017 On appeal from 2015 MBQB 148 , 320 ManR (2d) 277 MACINNES JA [ 1 ] Jason Timlick (the plaintiff) appeals and the defendant cross appeals the judgment of the trial judge (the judge) in a negligence action for medical malpractice. Facts [ 2 ] The plaintiff was born November 26, 1983, delivered by the defendant at the Neepawa Health Centre (Memorial Hospital).

The delivery was performed with the assistance of forceps but was otherwise normal. The plaintiff saw the defendant as his family doctor for two years, from his birth until November 28, 1985. The plaintiff was a large child in length, weight and head size. Notwithstanding his large head, the plaintiff appeared to be a healthy baby, both at the time of birth and throughout the following two years under the defendant’s care. [ 3 ] As the plaintiff grew up, he struggled with psychological, cognitive, executive functioning and physical/neurological problems.

On October 15, 2007, after experiencing increased neurological symptoms of hand tremors and an unsteady gait, he underwent an MRI of his brain. The MRI revealed that the plaintiff had severe obstructive hydrocephalus, probably caused by a benign tectal tumour present at birth. On October 16, 2007, the plaintiff and his parents were advised of the results of the MRI and thereby first learned of the diagnosis of hydrocephalus. [ 4 ] Hydrocephalus is the buildup of too much cerebrospinal fluid in the brain.

An obstructive hydrocephalus is one that is caused by the obstruction of the flow in the cerebrospinal fluid as opposed to one caused by the overproduction of cerebrospinal fluid. [ 5 ] Upon diagnosis, the plaintiff was referred to a pediatric neurosurgeon, Dr. McDonald, to determine whether the plaintiff would benefit from an endoscopic procedure, which was a fairly recently developed form of surgery, to treat the hydrocephalus. [ 6 ] Dr. McDonald found that the MRI showed enlargement of the lateral and third ventricles and a normal-sized fourth ventricle in the plaintiff’s brain.

He believed the plaintiff suffered from compensated or arrested obstructive hydrocephalus, that is, that the head growth associated with the excess spinal fluid had stabilized, probably because the plaintiff’s body had utilized other pathways to divert the excess cerebrospinal fluid. [ 7 ] Dr. McDonald did not believe the plaintiff suffered from raised intracranial pressure, but thought that some of his symptoms and issues might be related to his hydrocephalus. Thus, he concluded that it would be reasonable to treat the hydrocephalus

with an endoscopic third ventriculostomy (ETV) which he performed on November 5, 2007. [ 8 ] Following the surgery, there was a significant improvement in the plaintiff’s tremors and gait. He reported to Dr. McDonald that he felt he was more clear-headed and had more energy, and the plaintiff’s parents reported to him that they had noticed an improvement in some of his symptoms. [ 9 ] Ultimately, the plaintiff sued the defendant for negligence in failing to diagnose the hydrocephalus while in the defendant’s care, and particularly in the first few months of his life.

The Judgment [ 10 ] The judge noted that the defendant conceded he owed the plaintiff a duty of care. He went on to address whether there was a breach by the defendant of that duty of care, describing the question to be decided as “whether [the defendant] failed to meet the standard of care of a general practitioner in 1983-85” (at para 13) (the period during which the plaintiff was under the defendant’s care). [ 11 ] In deciding this issue, the judge considered and reviewed the evidence of three expert medical witnesses, each of whom provided a report and testified at trial. These included Dr.

Perlman, a highly qualified and experienced neonatologist, Dr. Lockman, a general practitioner, both of whom were witnesses for the plaintiff, and Dr. Aronyk, a pediatric neurosurgeon called as a witness for the defendant. As well, the judge considered the evidence of the defendant, who testified at trial. [ 12 ] He chose, for reasons expressed in his decision, to attach little weight to the evidence of Dr. Lockman. He stated that, although Dr.

Perlman was a specialist, he was satisfied that, given his training and experience, he was qualified to give evidence as to the standard of care to be expected of a general practitioner in the circumstances of this case. He found some support for Dr. Perlman’s evidence in the evidence of Dr.

Aronyk and concluded that the defendant had breached his duty of care to the plaintiff by not appreciating the significance of the head circumference measurements of the plaintiff that he was charting, and by failing to undertake further investigation. [ 13 ] After having found a breach of the duty of care, the judge then went on to consider whether the plaintiff suffered any damages that were causally connected to the defendant’s negligence. He considered the “but for” test and the “material contribution to risk of injury” test in his consideration of the causation issue.

He concluded that the test applicable in the circumstances of this case was the “but for” test and, in the result, with the exception of one aspect of the claim for damages, concluded that the plaintiff had failed to prove causation. [ 14 ] The one aspect for which he found causation and awarded damages pertained to the ETV performed on November 5, 2007, and which, on the evidence, resulted in improvement in certain symptoms of the plaintiff’s condition.

The judge concluded that, had the defendant not breached his duty of care to the plaintiff, the diagnosis of hydrocephalus would have been made well before 2007, and that the surgery he underwent upon discovery of his condition in October 2007, would have been undertaken in 2002, when that surgery became available, thus permitting the plaintiff the improvement in his condition five years earlier, that is in 2002 rather than 2007.

He quantified the damages for the delay in the diagnosis of his condition in the sum of $25,000. [ 15 ] The plaintiff appeals the judge’s decision, asserting: 1. that the general damages awarded were inordinately low; 2. that the “but for” test of causation was actually established on the evidence adduced and that the judge failed to appreciate same; 3. alternatively, that the “material contribution” test should have been applied in the unique circumstances of this case, and that the “material contribution” test, as a matter of law, is not restricted to multiple defendant situations; 4. that the judge erred in failing to appreciate clear evidence that a surgical shunting procedure would have been employed in the early youth of the plaintiff; and 5. that, because of errors of law alone or mixed fact and law, the judge erred in not awarding damages for lost income or for the Manitoba Health Services Commission account. [ 16 ] The defendant cross appeals, asserting that the judge: 1. erred in law in finding there was evidence of the standard of care of a general practitioner in 1983-85, and committed palpable and overriding error in his assessment of the evidence; 2. erred in finding that the delayed diagnosis resulted in a five-year delay in treatment of the plaintiff’s neurological symptoms. [ 17 ] For the reasons that follow, I would dismiss the plaintiff’s appeal and I would allow the defendant’s cross appeal. [ 18 ] As a result, the plaintiff’s action against the defendant will be dismissed. [ 19 ] In light of my conclusions respecting the appeal and cross appeal, I will proceed to deal with the defendant’s cross appeal first, and thereafter, to the extent necessary, with the plaintiff’s appeal.

Cross Appeal of the Defendant Issue One—Did the judge err in finding that there was sufficient evidence before him of the standard of care of a general practitioner in 1983-85 and that the defendant failed to meet that standard? [ 20 ] The defendant argues that the judge erred in law in finding that he was entitled to rely on the opinion evidence of Dr.

Perlman, a neonatologist, and Dr. Aronyk, a pediatric neurosurgeon, to establish the standard of care applicable to a general practitioner practising well-baby care in 1983-85.

As well, he says the judge committed palpable and overriding error in finding that the defendant breached the standard of care by failing to refer the plaintiff for investigation by the age of five months because of the significance of the measurements of the head circumference of the plaintiff. [ 21 ] The defendant asserts the law is clear that, in order to establish the standard of care in cases involving the diagnosis or treatment of medical conditions, expert evidence is required from someone of like standing and experience to the defendant. [ 22 ] He argues that this case is not an exceptional case where the standard of care can be established by reference to “common sense”, but rather, involves

interpretation of signs and symptoms and knowledge of their relevance to the diagnosis of hydrocephalus.

He says that, in order to determine what the standard of care is, the judge must have evidence from a properly qualified expert and, if there is no such evidence, no breach of the standard of care may be found. [ 23 ] The defendant submits that a specialist cannot be qualified to give evidence as to the standard of care of a general practitioner unless it is clearly established that the opinion expressed relates to treatments and procedures that are common to the practices or experience of the general practitioner and the specialist alike. [ 24 ] The defendant argues that the judge committed a palpable and overriding error in finding that Dr.

Perlman’s experience and training qualified him to give evidence as to the standard of care to be expected of a general practitioner in the circumstances of this case. He says that the judge cited no facts in support of his conclusion that Dr. Perlman was so qualified because he submits there were none. He asserts that the judge failed to consider, or misapprehended, the evidence with respect to Dr. Perlman. In particular: • the plaintiff did not seek to qualify Dr. Perlman, nor was he qualified, as an expert on the issue of the standard of care of a general practitioner; • Dr.

Perlman is a neonatologist who specialized in the diagnosis, treatment and prognosis of medical conditions of newborn infants (up to 28 days of age) and the provision of follow-up care thereafter and has unique experience with hydrocephalus as it is prevalent in the premature population, a primary area of his expertise; • Dr. Perlman conceded that he has never practised in the area of well-baby care. Rather, by the time infants are referred to him (i.e., within 28 days of birth), a concern has already been identified; • Dr. Perlman admitted that his involvement with general practitioners was very limited.

He said he had some dealings with them in aspects of informal continuing medical education and has had phone conversations in a small percentage of cases with general practitioners who have called in to his specialized neonatology unit for advice. His training and experience is much greater than that of a general practitioner’s. • Dr.

Perlman did not state that he was aware of the standard of practice of a general practitioner in 1983-85. [ 25 ] The defendant asserts that the issue in this case is whether, and at what point, a general practitioner providing well-baby care in 1983-85 would have referred an infant with no abnormal neurological signs and who was meeting all milestones for investigation as a result of head size measurements alone.

He argues that the experience and perspective of a general practitioner is key to this determination. [ 26 ] The defendant submits that his role as a general practitioner practising well-baby care was to assess his patients and determine whether there were any signs and symptoms that presented red flags for further investigation, whereas Dr. Perlman and Dr. Aronyk’s roles, once that flag has been raised, are to determine the cause of the red flag and what, if any, treatment flows from that. [ 27 ] The defendant argues that there were no common aspects to his practice and to the practice of Dr. Perlman or Dr.

Aronyk that would permit either to be qualified to comment on the standard of care of a general practitioner in 1983-85. Accordingly, there was no evidence before the Court to establish the standard of care expected of a general practitioner at the material time. [ 28 ] Moreover, says the defendant, the judge erred in placing any weight on the evidence of Dr. Perlman after he conceded that he had not conducted an objective review of the underlying circumstances. Dr.

Perlman confirmed that, when he approached his review and wrote his medical report, he assumed that hydrocephalus was present in the plaintiff and ought to have been diagnosed earlier by the defendant who thus, had not met the standard of care. In addition, he erred at the time of his review and report by assuming that the cause of the hydrocephalus was a blood clot caused by birth trauma, rather than an undetected tumour, and he refused when testifying to acknowledge his error. The defendant asserts that both Dr.

Perlman’s lack of objectivity in performing his review and providing his medical report in addition to his error as to the cause of the hydrocephalus, were sufficiently significant to vitiate the judge’s reliance on his evidence, even if his evidence could be relied on to establish the standard of care which the defendant submits it could not. [ 29 ] As regards the judge’s finding that the evidence of Dr. Aronyk supported the conclusion of Dr.

Perlman and thus, the judge’s finding that the plaintiff ought to have been referred for investigation at five months of age based on the head measurements, the defendant asserts the judge erred. He says that Dr. Aronyk’s evidence was to the contrary. Dr.

Aronyk testified that, “if a child is well and head circumference is crossing percentiles in a completely well child I would not expect that child to be referred to a pediatric neurosurgeon.” [ 30 ] Thus, the defendant submits that the judge erred in finding him negligent for failing to refer the plaintiff for further investigation. [ 31 ] The plaintiff disputes the defendant’s contention that the judge erred in accepting the evidence of Dr. Perlman and Dr.

Aronyk, asserting that it is not the law, nor has it ever been, that only a general practitioner can comment about the standard of care of a general practitioner.

[32] The plaintiff argues that, when one is qualified as an expert, he/she may give evidence about something within his/herspecialty, if impartial and providing assistance to the court that would not otherwise be available but for his/her evidence. He says thatarguing that an expert may only give evidence about a person of his/her own specialty ignores the team approach of medicine and thereality that specializations in medicine can blur and merge with others.

He submits that the team approach is critical to modern medicineand has been referenced in case law that is not challengeable. [33] The plaintiff says that a team approach in medicine applies as between general practitioners and specialists to whom areferral might be made and vice versa. Here, both general practitioners and specialists were dealing with the same issue; namely, thecare of the child. [34] In this case, argues the plaintiff, the diagnosis was not esoteric. He says that, while the judge attached little weight tothe evidence of Dr. Lockman, that does not mean that he attached no weight to it.

The reality is that Dr. Lockman, a general practitioner,testified that hydrocephalus was a condition known in antiquity and treated even surgically for in excess of 100 years. This was agreed toby other of the experts. The plaintiff says that Dr. Perlman went so far as to describe the defendant’s conduct in having measured thegrowth of the head of the plaintiff (but not having done more), as a “mystery”. He submits that Dr. Aronyk testified that the accelerationin head growth in the early months of the plaintiff’s life was “worrisome” and should have been brought to the attention of the plaintiff’sparents.

The plaintiff argues that, had that been done, that is to say, had the parents been apprised of the condition and what symptoms towatch for, the treatment of the plaintiff over his lifetime prior to 2007 would have been different. [35] He submits that, in this case, the defendant had training in obstetrics and pediatrics and additionally, acted asobstetrician for the plaintiff’s mother and as pediatrician to the plaintiff. [36] The plaintiff argues that the defendant’s medical training, the antiquity of the history of a diagnosis of hydrocephalus,the training of the defendant in obstetrics and pediatrics, the crossover between the general practitioner acting as obstetrician andpediatrician, and the obvious need to refer, should result in dismissal of the cross appeal on liability.

The plaintiff asserts that the judgedid not fall into palpable and overriding error; rather, he was correct in his conclusion. Analysis [37] In order to find negligence against a medical doctor in the practice of his/her profession, it is necessary to determine thestandard of care against which the doctor’s conduct is to be measured and to determine on the evidence that the doctor has failed to meetthat standard. [38] For the purpose of appellate review, the characterization of the appropriate standard of care is a question of law and isreviewable on appeal on the standard of correctness.

Whether the doctor has met the requisite standard of care is a question of fact or ofmixed fact and law and is reviewable on the deferential standard of palpable and overriding error (see Ellen I Picard & Gerald BRobertson, Legal Liability of Doctors and Hospitals in Canada, 4th ed (Toronto: Thomson Carswell, 2007) at 256, 226). [39] The standard of care is not one of perfection, but of what is expected of the normal, prudent medical practitioner ofhis/her class. [40] The classic statement as regards standard of care required of a doctor in a medical negligence case is found in Crits andCrits v Sylvester et al, (ON CA), [1956] OR 132 (CA), aff’d (SCC), [1956] SCR 991, where SchroederJA wrote (at p 143): The legal principles involved are plain enough but it is not always easy to apply them to particular circumstances.

Every medicalpractitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care.

He isbound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the sameexperience and standing. [41] This statement has been frequently repeated such that it is, and for some years has been trite law. [42] It is also the case that there is a temporal requirement to the determination of the standard of care, that is, it is necessaryto establish the standard of care which existed at the time of the incident or occurrence underlying the complaint, such that the conduct ofthe physician against whom the standard is applied, is judged in light of the knowledge which he/she ought reasonably to have possessedat the time of the alleged negligence.

See ter Neuzen v Korn, (SCC), [1995] 3 SCR 674 at para 34; and Roe v Ministryof Health, [1954] 2 All ER 131 (CA) at p 137 per Denning LJ. [43] Often, a general practitioner finds that much of his/her practice is devoted to obstetrics, pediatrics, gynecology and thelike, but that does not elevate the doctor to the level of the specialist. That point, with which I agree, was neatly put by Lomas J in Pierreet al v Marshall et al (1993), (AB KB), 152 AR 161 (QB), where he wrote (at para 33): In this case, Dr. Marshall is a general practitioner, practicing obstetrics in Calgary, Alberta.

He is not an obstetrician, gynecologist orendocrinologist and his standard of care is not to be measured against that of experts in those fields, but he is expected to meet thestandard of care reasonably expected of the normal, prudent general practitioner practicing obstetrics in communities similar to Calgary.

[44] In this case, the defendant was a general practitioner who was the plaintiff’s pediatrician practising well-baby careduring the period 1983-85. [45] In order to establish the relevant standard of care and to opine on whether or not the defendant physician met thestandard of care, expert evidence is essential. Absent evidence from experts, the Court is not in a position to assess whether thedefendant doctor was negligent except in rare cases (of which this is not one) where the judge is in as good a position as a medical expertto determine whether or not the defendant was negligent.

Indeed, but for such exceptional cases, a court should not find a physiciannegligent in the absence of expert evidence. See Picard at pp 393-94. [46] Moreover, as the standard of care required of a physician is a duty to conduct their practice in accordance with theconduct of a prudent and diligent doctor in the same circumstances (see ter Neuzen at para 33), the witness testifying as to the standard ofcare is generally a physician practising in the same field as the defendant. [47] There is no doubt that that requirement is not absolute.

Though not usual, a specialist may be qualified to give evidenceas to the standard of care governing treatment provided by a general practitioner, but this will depend on the subject matter of thetestimony and the specialist’s training and experience. A number of cases were provided by counsel in respect of this proposition, but ineach such case, it was clear that there was some commonality between the practice or experience of the expert specialist and that of thegeneral practitioner in respect of medical conduct of the defendant which is alleged to have been negligent.

See Robinson v St Joseph’sGeneral Hospital et al (1999), (ON CA), 117 OAC 331 at paras 1-3; and Courtney v Cleary, 2009 NLTD 103 at paras47, 56, 287 Nfld & PEIR 311. [48] In this case, the judge accepted Dr. Perlman as an expert to opine on the conduct of the defendant. He also acceptedDr.

Perlman’s conclusion that the defendant had breached the standard of care owed to the plaintiff by failing to appreciate thesignificance of the head circumference measurements of the plaintiff, which he was charting, and by failing to undertake furtherinvestigation, the result of which was that the plaintiff was not diagnosed with hydrocephalus in or around the third to fifth monthfollowing birth as, in the judge’s conclusion, would almost certainly have occurred but for the defendant’s failures. [49] In his judgment, the judge wrote (at para 20): Although Dr.

Perlman is a specialist, I am satisfied that given his training and experience he was qualified to give evidence as to thestandard of care to be expected of a general practitioner in these circumstances. He acknowledged that there were certain factual errors inhis report but stated that they did not alter his opinion as to the standard of care to be expected of [the defendant]. The concerns heexpressed about [the defendant]’s standard of care did not relate to sophisticated tests or complex procedures. He was merely critical of[the defendant]’s failure to recognize the need for further investigative measures.

His evidence accords with common sense. [50] The judge found comfort in his conclusion from the evidence of Dr. Aronyk who, on cross-examination, described thehead circumference measurements plotted by the defendant for the period three to five months as worrisome, and said that he would haveinformed the parents of the risk of hydrocephalus and the symptoms to watch for. [51] In my view, in so concluding, the judge erred. In R v Mohan, (SCC), [1994] 2 SCR 9, the Court statedthat to be admissible, expert evidence must meet the following criteria (at p 20):

a) relevance;

b) necessity in assisting the trier of fact;

c) the absence of any exclusionary rule; and

d) a properly qualified expert. As I will explain, it is my opinion that neither Dr. Perlman nor Dr. Aronyk, upon whose evidence the judge relied in finding that thedefendant had failed to meet the requisite standard of care, were qualified to give such opinion evidence and that, accordingly, theirevidence on the issue of standard of care was inadmissible. [52] The judge put the question for decision in this case as “whether [the defendant] failed to meet the standard of care of ageneral practitioner in 1983-85” (at para 13). [53] Dr. Perlman was not qualified as an expert to opine on that specific question.

Rather, he was presented by the plaintiffas an expert in “the diagnosis and treatment of hydrocephalus.” The defendant specifically challenged any suggestion that Dr. Perlmanwas able to opine on the standard of care of a general practitioner at the material time, but accepted him as an expert in the diagnosis andtreatment of hydrocephalus, as did the judge.

[ 54 ] In his evidence, Dr. Perlman testified that he had graduated with his medical degree in January 1961, that he became a member of the Royal College of Physicians in London, England, in 1967 and that he received his fellowship in pediatrics from the Royal College of Physicians in Canada in 1981. He said that he acted as a family physician in 1963 and 1964, but not since then. [ 55 ] From 1981 to 2003, he worked on a permanent basis at the Hospital for Sick Children (SickKids) in Toronto as a neonatologist.

At all times, when he was working at SickKids, he was a specialist, first in pediatrics and then in neonatology, which is a subspecialty of pediatrics. [ 56 ] He testified that while in those positions, he dealt with general practitioners, including medical students, undergraduates, interns and junior residents who came through their neonatology unit.

As well, he said that he dealt with a small number of general practitioners in the context of continuing medical education, including family doctors, particularly in respect of neonatal resuscitation. [ 57 ] On cross-examination he acknowledged that when employed at SickKids, his practice was predominantly neonatology. He said that SickKids was not a hospital where babies were born, rather, sick children were referred from other institutions and seen at SickKids.

He stated that it was once such children were referred to SickKids that he got involved and provided whatever investigation, diagnosis or treatment was necessary. Effectively therefore, he would manage the care of newborns in the neonatal period, i.e., within 28 days of birth, adjusted for prematurity, following their referral to the hospital. [ 58 ] Dr. Perlman gave no evidence that he had knowledge or experience in well-baby care and admitted that SickKids does not provide well-baby care.

While he did testify as to involvement with general practitioners or other physicians from time to time, he did so in terms of his subspecialty in respect of referrals from them. He gave no evidence that he had taught or instructed students or general practitioners in respect of the diagnosis and treatment of hydrocephalus at the material time in question, or otherwise. [ 59 ] While counsel for the plaintiff spoke of the team approach in medicine, that is a concept which was not applicable to the plaintiff, the defendant and Dr. Perlman in the circumstances of this case.

The plaintiff was not premature and there was no evidence of any failure by the defendant in his treatment or care of the plaintiff in the first 28 days of his life such that the plaintiff would ever have been referred to Dr. Perlman. [ 60 ] Moreover, there is no evidence of commonality or similarity between the practice or experience of Dr. Perlman and that of the defendant, which, in my view, would permit him to give expert evidence as to the standard of care applicable to the defendant at the material time.

This case is wholly unlike that which existed in Robinson , Courtney and other cases where specialists may testify in respect of the standard of care of a general practitioner. [ 61 ] The same can be said as regards Dr. Aronyk. He is a pediatric neurosurgeon and was qualified to give expert opinion evidence on pediatric neurosurgery, which he did.

He was not qualified as an expert witness to testify as to the standard of care of a general practitioner at the material time, or otherwise, and did not purport to do so. [ 62 ] Interestingly, he did give evidence to the effect that there was more to the diagnosis of hydrocephalus than simply head circumference measurements. He testified that the absolute numbers of head circumference are not as important as the shape of the curve that results from the plotting of head circumference measurements.

He said that whether the numbers lie on the curve within the normal range or outside the normal range is not as important as the shape of the curve. He testified that he teaches in medical school and to pediatricians that it is not the head circumference number or whether it is above or below the curve that is critical, rather it’s the child.

He said, “We don’t treat curves, we treat children,” and that if the child is well, and head circumference is crossing percentiles in a completely well child, he would not expect the child to be referred to a pediatric neurosurgeon. [ 63 ] He did acknowledge that the plaintiff’s head circumference measurements did cross percentiles between the third and fifth months in a way that was not consistent with the curve plotted to that point and he described the curve as “worrisome”.

He testified that he would have informed the plaintiff’s parents of the possibility of hydrocephalus and of the conditions that they should look for in the child that might be symptoms of that disease. He did not, however, testify that the defendant should have so informed the parents, only that he would have.

He also said, however, that shortly following the fifth month, the shape of the curve came back towards the normal range and continued roughly in that normal curvature through the remainder of the period of the defendant’s care of the plaintiff. [ 64 ] The defendant testified that he practiced medicine in Neepawa from January 1974 through December 1985 as a general practitioner and that his practice consisted of a full range of services, including obstetrics in which he practiced well-baby care.

He described in some detail what the practice of well-baby care meant and what he would do on each occasion that the child attended. He said he saw the child at regular intervals and on each occasion he would discuss with the mother the condition of the child as she saw it, ascertain whether there were any complaints or concerns from her perspective and address any concerns or issues which might be expressed by the mother. He would ask questions if necessary regarding the child’s development and he would then proceed to examine the child fully and record the findings on examination.

He would ask questions of the mother as to how the baby was doing generally, if the baby was breastfed or bottle fed and how the baby was doing in that regard, whether the baby was retaining the feed, whether the bowels were working adequately, whether the baby was urinating normally and as the baby got older, things like whether he was smiling, what his activities were, was he moving, walking, speaking, all of which are milestones that demonstrate the child’s development.

As well, he said he would do an overall physical examination of the child, the parameters being the weight, the length and the head circumference of the child, which demonstrate whether the child is growing healthily or not. He testified that the plaintiff was, at birth and thereafter, a very large child, being well above average on all parameters. He said that in every instance, the child was not only developing normally, but was healthy and thriving.

In the two years that he cared for the plaintiff, the mother made no complaints as to the child but described him as a healthy, happy child. [ 65 ] I have briefly outlined the evidence of Drs. Perlman, Aronyk and the defendant so as to underscore what I believe to be the impossibility of determining a breach of the standard of care when there is no proper evidence to establish that standard against which to measure the defendant’s conduct. [ 66 ] In my view, there was no witness properly qualified to give opinion evidence on the question to be determined by the

judge, and the judge erred in accepting Dr. Perlman as such and/or in relying upon his evidence, or that of Dr.

Aronyk, as he did. [ 67 ] The onus is upon the plaintiff to establish the requisite standard of care at the relevant time and in my opinion, for the reasons given, the plaintiff has failed to do so. [ 68 ] In the result, there is no standard of care against which the defendant’s conduct can be measured, and the judge thus committed palpable and overriding error in finding the defendant liable for having breached the standard of care. [ 69 ] While it is unnecessary to deal with the remainder of the appeal, I will do so in light of the materials filed and the arguments advanced by the parties.

Issue two—Did the judge err in finding that the delay in diagnosis resulted in the five-year delay in treatment of the plaintiff’s neurological symptoms? [ 70 ] The defendant argues that, in finding that the plaintiff’s gait issues arose in 2002, the judge relied on the recollections of the plaintiff, his mother and his uncle, and failed to have any regard for the copious contemporaneous medical information to the contrary which, the defendant says, constitutes a palpable and overriding error.

As well, the judge’s finding that the gait issues arose in 2002 was internally inconsistent with other findings that he made. [ 71 ] The evidence, says the defendant, is that the plaintiff attended on seven physicians (for a total of 13 visits) between the summer of 2002 and September of 2004, yet there is no recorded evidence that he (or his mother) raised a concern or that the physicians found any evidence of gait ataxia during any of those visits.

The plaintiff did not attend on any physicians between September 2004 and October 2007. [ 72 ] The defendant argues that, not only is there an absence of any reference to deterioration in tremor or gait before 2007, there is no evidence that the plaintiff had any such problems. He participated in a residential rehabilitation program in 2004 at McTavish Manor.

The voluminous records from that institution demonstrate that the plaintiff’s physical and mental health were constantly evaluated by trained healthcare professionals during his stay, and the records are replete with references to his participation in sports, including floor hockey and basketball, with no indication he suffered from any gait ataxia. [ 73 ] The first reference in contemporaneous documentation to the plaintiff having a gait disturbance, says the defendant, occurred in 2007, when it was described as arising progressively over the past year. Dr.

Tang Wei, a neurologist who, in September 2007, saw the plaintiff for investigation of tremors and the loss of equilibrium, expressly stated: “For the past ten years, he has a mildly progressive tremor in both hands, worse on the left side than the right. It is absent at rest.” Further, he wrote, “What is more of concern to his parents is that in the past one year or so, his equilibrium has been gradually deteriorating.” [ 74 ] This is corroborated by information given to Dr.

Stambrook, a clinical psychologist with a specialty in neuropsychology, when he first saw and tested the plaintiff commencing in 2009 following his surgery in 2007. [ 75 ] In his initial assessment on April 23, 2009, Dr.

Stambrook expressly stated that the plaintiff “had a subsequent neurological deterioration that was noteworthy in 2006 to 2007, with gait disturbance and tremor.” Further, he noted in the medical history of that assessment that “since 2006, he had gait disturbance.” [ 76 ] The defendant argues that notwithstanding these reports, no alternative set of facts were asserted by the plaintiff or his family until the date of trial. [ 77 ] As well, the defendant says that, not only does the documentary evidence directly contradict the evidence of the plaintiff and his family as to the date of onset of his gait difficulties, the judge’s finding that the gait difficulties arose in 2002, but no treatment was sought until 2007, is directly contradictory to his finding as to the caring and thoughtful nature of the plaintiff’s parents and the evidence with respect to their approach to getting him treatment for his various issues.

The defendant refers to the evidence that the plaintiff’s parents over the years sought treatment for him from over 29 physicians and healthcare providers, and argues that it is inconceivable they would say nothing to the seven physicians the plaintiff saw between 2002 and 2004 about increasing tremors or a gait problem, particularly after the plaintiff’s uncle (who they knew to be a retired physician) had raised the issue of further investigation in 2002. [ 78 ] The defendant says the evidence demonstrates that the plaintiff and his mother do not have clear recollections of the dates of onset of his symptoms such that, as the plaintiff’s mother generally acknowledged in cross-examination, she would defer to the medical records. [ 79 ] The defendant thus argues that the judge’s errors were sufficiently significant to vitiate the challenged finding of fact, and says there is therefore no evidence upon which the judge could find that, but for the delay in diagnosis of the hydrocephalus, the plaintiff would have undergone the ETV in 2002. [ 80 ] The plaintiff did not argue this issue, either in his factum, supplementary factum or in argument on the appeal.

He argued only that the $25,000 damage award in respect of the delay in surgery was inordinately low. Analysis [ 81 ] The judge dealt very briefly with this issue in his judgment. He concluded that the plaintiff’s parents were thoughtful and caring people and that, if they had known of the plaintiff’s hydrocephalic condition and had been told what to watch for, they would have sought the required medical treatment much sooner than 2007.

Further, he determined that, had the surgery taken place at an earlier date, the plaintiff would have experienced an earlier improvement in his neurological and cognitive conditions. In short, he

concluded that the surgery would have been done as early as 2002. [82] It was as a result of those findings that he made an award of $25,000 to cover this period of five years during which theETV would have been available to him but was not undertaken. [83] The judge’s conclusions were based upon findings of fact and accordingly, they are subject to deference and may beinterfered with on appeal only if he has committed palpable and overriding error. [84] There is no doubt that a trial judge, without committing error, may prefer certain evidence over other evidence, but aclear misapprehension of evidence can amount to palpable and overriding error.

In my view, with respect, that is what occurred here. [85] As the defendant argued, there was contemporaneously documented evidence of Dr. Tang Wei and Dr.

Stambrookconcerning the plaintiff’s condition which led to the ETV in November 2007. [86] As well, there was evidence that the plaintiff had seen seven physicians (for a total of 13 visits) between 2002 and 2004and that he had not seen any physicians between September 2004 and September 2007. [87] There were voluminous records from McTavish Manor, a residential program in which the plaintiff participated in2004, which provide constant evaluations of the plaintiff’s physical health and of his participation in sports and other activities, withoutany reference to gait ataxia. [88] There was evidence that, in 2002, Dr.

Ullyot, who was then a retired physician and was a relative of the plaintiff’sfather, observed the plaintiff’s gait issues as they then existed and suggested that the parents arrange for a CT scan of the plaintiff, whichthey did not do. [89] In addition, there was evidence from Dr. McDonald, concurred with by evidence from Dr. Aronyk, that the ETV wasrecommended and performed by Dr.

McDonald because of decompensation of the plaintiff’s hydrocephalic condition (i.e., that theplaintiff’s condition that had become compensated or arrested when he was approximately six months old had become decompensated orunarrested) such that he was a candidate for an ETV in the hope that it might improve his tremor, gait and cognitive issues. [90] In my opinion, all of this evidence was both relevant and material to the determination of this issue, but appears not tohave been considered by the trial judge. [91] When he first saw the plaintiff in September 2007, Dr.

Tang Wei recorded that the plaintiff had been suffering for theprevious ten years from a mildly progressive tremor in both hands, worse on the left than the right, and absent at rest, but that the greaterconcern of his parents was “that in the past 1 year or so, his equilibrium [had] been gradually deteriorating.” [92] As well, Dr.

Stambrook recorded that, while the plaintiff had historical difficulties over time, he had a “subsequentneurological deterioration that was more noteworthy in 2006 to 2007, with gait disturbance and tremor.” [93] There is no doubt that the plaintiff’s parents were vigilant in seeking medical care and treatment for the plaintiffthroughout his life. It is inconceivable, in my view, that the complaint and information given to Dr.

Tang Wei in September 2007 wouldnot have been given by the parents to any of the seven physicians whom they and the plaintiff saw between 2002 and 2004, or thatmedical appointments and such complaints and information would not have been made between 2004 and 2006 if the concerns given toDr.

Tang Wei had been present during that period of time. [94] Rather, the evidence, including the absence of complaints as referred to above and the lack of action in response to Dr.Ullyot’s suggestion in 2002, lends credence to the conclusion that it was the decompensation in the plaintiff’s condition in 2006-2007which resulted in a deterioration in gait and tremor that led them to seek medical intervention.

This they received in and followingSeptember 2007, including the ETV. [95] Therefore, in my opinion, the judge misapprehended the evidence relating to this issue, and committed error in findingthat the plaintiff would have received the surgery in 2002 had he and his parents then known that he suffered from hydrocephalus.

Thus,I would allow the defendant’s cross appeal in respect of this issue and set aside the damage award of $25,000. [96] I turn now to deal with the plaintiff’s appeal. [97] After having found a breach of the duty of care by the defendant, the judge turned to consider whether the plaintiffsuffered any damages that were causally connected to the defendant’s negligence. [98] With the exception of the damage award of $25,000, to which I have just referred, the judge found that thepsychological issues, the cognitive issues, the executive functioning deficit and the physiological/neurological deficits suffered by theplaintiff were not causally connected to the defendant’s negligence.

Accordingly, the judge dismissed the remainder of the plaintiff’sclaim for general damages, as well as for loss of income and for reimbursement of the Manitoba Health Services Commission account. [99] The critical issue in connection with the foregoing was the determination of causation. [100] The judge wrote that, as a general rule, the plaintiff must establish on a balance of probabilities that “but for” thedefendant’s negligent act, the injury would not have occurred.

He referred to the “but for” test as enunciated in Snell v Farrell, (SCC), [1990] 2 SCR 311, and to the case of Resurfice Corp v Hanke, 2007 SCC 7, [2007] 1 SCR 333, where the SupremeCourt acknowledged that, in certain circumstances, an exception to the basic “but for” test is permitted and causation may be determinedinstead by applying what is known as the “material contribution to risk of injury” test. [101] Ultimately, he referred to and followed Clements v Clements, 2012 SCC 32, [2012] 2 SCR 181, wherein McLachlin CJ

reaffirmed the general test for determining causation to be the “but for” test. She wrote (at paras 8-13): The test for showing causation is the “but for” test. The plaintiff must show on a balance of probabilities that “but for” the defendant’snegligent act, the injury would not have occurred. Inherent in the phrase “but for” is the requirement that the defendant’s negligence wasnecessary to bring about the injury―in other words that the injury would not have occurred without the defendant’s negligence. This isa factual inquiry.

If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action againstthe defendant fails. The “but for” causation test must be applied in a robust common sense fashion. There is no need for scientific evidence of the precisecontribution the defendant’s negligence made to the injury. See Wilsher v. Essex Area Health Authority, [1988] A.C. 1074 (H.L.), at p.1090, per Lord Bridge; Snell v. Farrell, (SCC), [1990] 2 S.C.R. 311. A common sense inference of “but for” causation from proof of negligence usually flows without difficulty.

Evidence connecting thebreach of duty to the injury suffered may permit the judge, depending on the circumstances, to infer that the defendant’s negligenceprobably caused the loss. See Snell and Athey v. Leonati, (SCC), [1996] 3 S.C.R. 458. See also the discussion on thisissue by the Australian courts: Betts v. Whittingslowe (1945), 71 C.L.R. 637 (H.C.), at p. 649; Bennett v. Minister of Community Welfare(1992), 176 C.L.R. 408 (H.C.), at pp. 415-16; Flounders v. Millar, [2007] NSWCA 238, 49 M.V.R. 53; Roads and Traffic Authority v.Royal, [2008] HCA 19, 245 A.L.R. 653, at paras. 137-44.

Where “but for” causation is established by inference only, it is open to the defendant to argue or call evidence that the accident wouldhave happened without the defendant’s negligence, i.e. that the negligence was not a necessary cause of the injury, which was, in anyevent, inevitable. As Sopinka J. put it in Snell, at p. 330: The legal or ultimate burden remains with the plaintiff, but in the absence of evidence to the contrary adduced by the defendant, aninference of causation may be drawn although positive or scientific proof of causation has not been adduced.

If some evidence to thecontrary is adduced by the defendant, the trial judge is entitled to take account of Lord Mansfield’s famous precept [that “all evidence isto be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to havecontradicted” (Blatch v. Archer (1774), 1 Cowp. 63, 98 E.R. 969, at p. 970)].

This is, I believe, what Lord Bridge had in mind in Wilsherwhen he referred to a “robust and pragmatic approach to the . . . facts” (p. 569). [Emphasis added.] In some cases, an injury—the loss for which the plaintiff claims compensation—may flow from a number of different negligent actscommitted by different actors, each of which is a necessary or “but for” cause of the injury. In such cases, the defendants are said to bejointly and severally liable. The judge or jury then apportions liability according to the degree of fault of each defendant pursuant tocontributory negligence legislation.

To recap, the basic rule of recovery for negligence is that the plaintiff must establish on a balance of probabilities that the defendantcaused the plaintiff’s injury on the “but for” test. This is a factual determination. Exceptionally, however, courts have accepted that aplaintiff may be able to recover on the basis of “material contribution to risk of injury”, without showing factual “but for” causation.

Aswill be discussed in more detail below, this can occur in cases where it is impossible to determine which of a number of negligent acts bymultiple actors in fact caused the injury, but it is established that one or more of them did in fact cause it. In these cases, the goals of tortlaw and the underlying theory of corrective justice require that the defendant not be permitted to escape liability by pointing the finger atanother wrongdoer.

Courts have therefore held the defendant liable on the basis that he materially contributed to the risk of the injury. [102] On appeal, the plaintiff referred to the case of Behaim v St-Germain, 2016 SCC 48, which was then under reserve by theSupreme Court of Canada, on appeal from the Quebec Court of Appeal. That appeal has now been decided.

In my opinion, the decisionhas not altered, but rather affirms, the principles respecting the causation tests enunciated in Clements. [103] The plaintiff argues that the appropriate test for causation in this case should have been the “material contribution to riskof injury” test and that the judge erred in failing to apply that test. Alternatively, the plaintiff argues that even applying the “but for” test,causation was established and that the judge erred in failing to so find. I do not agree. [104] In this case, there was one defendant only.

Nothing that the defendant did or failed to do caused the plaintiff’s injury. The plaintiff was born with a benign tectal tumour which caused obstructive hydrocephalus.

While the judge found that the defendantbreached his duty of care to the plaintiff, in either failing to refer the plaintiff to a neurologist or for an ultrasound examination of hishead, he found that all of the conditions of which the plaintiff complains and for which he seeks damages were not caused by thedefendant’s negligence but were either caused by the disease itself, or were independent of the disease and of anything the defendant didor failed to do.

[ 105 ] The plaintiff argues that, had the diagnosis been made by the defendant, he would have received an intracranial shunt, which would have alleviated the conditions from which he suffered or may have minimized or diminished them.

The medical evidence at trial, however, was clear that, while shunting was the only possible intervention available at the time, the plaintiff was not a candidate for shunting as he exhibited no symptoms of raised intracranial pressure. [ 106 ] As for the plaintiff’s psychological issues, including the fact that when he was about eight years of age and thereafter throughout much of his adolescence, he suffered from a number of behavioural issues, being diagnosed as having ADHD, OCD and ODD, the evidence from Dr.

Stambrook was that the diagnoses of ADHD, OCD and ODD are descriptive, not etiological, that is, they describe the behaviour; they do not describe the underlying cause of the conditions. Moreover, many children who suffer from hydrocephalus also suffer from such conditions, and many who suffer from such conditions do not suffer from hydrocephalus.

Further, the evidence was that many children who were eligible candidates for shunting and who were shunted, suffered from the same conditions and from other conditions that go with the risk of being shunted. [ 107 ] The evidence was clear that the plaintiff suffers from executive functioning deficits. It is largely that factor that prevents him being employed. However, the evidence was clear that these deficits were caused by the hydrocephalus itself, and were not caused by any failure or delay in diagnosing the disease.

The same is the case for the physical/neurological deficits for which the plaintiff seeks damages. [ 108 ] In short, I see no error in law or in fact by the judge as regards his findings or conclusions relating to the issue of causation or his consequential rejection of the plaintiff’s claim for damages with respect to these various issues, including his claim for loss of income and payment of the Manitoba Health Services Commission account. [ 109 ] There is no basis for appellate intervention in that regard and accordingly, I would dismiss the plaintiff’s appeal. [ 110 ] In conclusion, as the plaintiff’s appeal has been dismissed and the defendant’s cross appeal allowed, the plaintiff’s claim against the defendant fails.

Accordingly, the defendant will be entitled to costs of this appeal and in respect of the trial below. JA I agree: JA I agree: JA